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Petitioner: AMIR ALI VS Respondent: Mrs. ALIMA AHMAD
Court Name: Sindh High Court Judge(s): Ajmal Mian Title: AMIR ALI vs Mrs. ALIMA AHMAD Case No.: Second Appeal No. 344 of 1978 Date of Judgment:1980-11-22 Reported As: PLD 1981 Karachi 150 Result: Appeal allowed
JUDGMENT
JUDGMENT This second appeal is directed against the order dated 17-8-1978 granting the respondent's application for ejectment, passed by the 2nd Additional District Judge, Karachi in Rent Appeal No. 530 of 1975, setting aside the 7th Civil Judge and Rent Controller's order dated 6-8-1975 in Rent Case No. 558/71, dismissing the respondent's above rent application. The facts leading to the filing of the above appeal are that the respondent filed the above Rent Application for ejectment in respect of a shop situated on Plot No. 115/C, Central Commercial area, off Tariq Road, P. E. C. H. S, Karachi (which was let out to the present appellant in 1968 at Rs. 175 per month), on the ground of default in payment of monthly rent for the period commencing from April, 1970 to February, 1971, amounting to Rs. 1,925. The appellant contested the above application and filed written statement, averring therein, that there was no default committed by him inasmuch as Rs. 350 being the rent for October, November. 1969 was paid against the receipt No. 3 dated 19-4- 1970 Exh. 8, Rs. 700 being the rent for January to March, 1970 was paid against the Receipt No. 9, and a sum of Rs. 1,050 was paid through Cheque No. CBR-803332 dated 20-8-1970 drawn on Messrs United Bank Ltd., Tariq Road, being the rent for April, to September, 1970 for which the respondent did not issue any rent receipt. It was also averred that the appellant sent a letter dated 19-10-1970 under registered acknowledgement receipt, Exh. 14 demanding the rent receipt, but the respondent did not send any reply. It was further averred that the appellant again on 27-3-1971 sent a sum of Rs. 700 through money order No. 3879 being the rent for October, 1970 to March, 1971, but the same was refused by the respondent. (2) (a) On the basis of the above pleadings, the following two issues were framed by the learned Rent Controller :-
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(i) Whether the appellant is a defaulter in payment of rent for the period from 1-4-1970 to February, 1971 ? (ii) Relief. (b) The respondent in support of her application examined her former attorney one Ibrahim P. W. 1 Exh. 5 and also her husband Muhammad Ahmad (who also held a special power of attorney since February 1975) P. W. 2 Exh. 11, whereas the appellant examined himself as D. W. 1 Exh. 16. The learned Rent Controller after hearing the parties dismissed the application on the ground that the respondent had been accepting accumulated rent from the appellant some times in cash and some times through cheques and, therefore, there was no wilful or deliberate default committed by the appellant in payment of rent to the respondent. However, upon appeal filed by the respondent, the learned First Appellate Court did not agree with the above finding of the learned Rent Controller and came to a contrary conclusion by holding that neither any practice was pleaded by the present appellant in his written statement to the effect that the respondent used to accept accumulated rent in lump sum for the months together nor it had been established on record that there existed any such practice between the parties. It was further held that according to the appellant's own averments in the written statement there was no doubt that the appellant admittedly committed defaults in payment of monthly rent which he was required to pay every month before 15th of each calendar month which he had failed to do. The appellant being aggrieved by the above judgment of the learned first appellant Court filed the present second appeal. 3. (a) In support of the above appeal, Mr. Khalid Ishaque learned counsel for the appellant has urged the following points. (i) That the learned first appellate Court was not justified in reversing the finding of the learned Rent Controller inasmuch as the respondent had failed to prove that the appellant was in arrears of rent for the period commencing from April, 1970 to February, 1971 amounting to Rs. 1925. (ii) That the learned first appellate Court could not have granted ejectment on a ground other than pleaded by the respondent in her rent application. (iii) That in order to succeed it was incumbent upon the respondent to prove that the appellant was a wilful defaulter i.e. the respondent was willing to accept rent and the appellant was not willing to pay rent. (b) Whereas Mr. Muhammad A.I Sayeed learned counsel for the respondent has urged the following contentions :- (i) That under clause 4 of the tenancy agreement dated 1-9-1968 Exh. 6, the appellant was obliged to pay rent regularly without fail in advance monthly rent by the 5th of each calendar month and that admittedly the appellant committed breaches of the above term. (ii) That even if it is to be held that the respondent failed to prove that the appellant was in arrears of rent for the period from April, 1970 to February, 1971, amounting to Rs. 1,925, but it cannot be denied that the respondent b1s proved that the appellant had committed defaults in terms of section 13(2) (i) of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). (iii) That this Court while hearing a second appeal cannot set aside a finding of fact of the first appellate Court though contrary to the trial Court, unless it is to be found to be perverse. 4. (b) Before taking up the contentions raised by the learned counsel for the appellant, it will be necessary to deal with the contention of the learned counsel for the respondent that the appellant under clause (4) of the Tenancy Agreement dated 1-9-1968 Exh. 6, was obliged to pay rent in advance A by 5th of each month as it will be relevant for the purpose of determining the question, as to whether in the instant case the issue of default is to be dealt with on the basis of the terms of the above agreement or on the basis as .If there was no agreement.
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Alifdin v. Khadim Hussain (1), in which Anwarul Haq, C. J. And Nasim Hassan Shah, J. Held that a tenant continuing in occupation of property after termination of the tenancy, remains subject to the terms of the lease deed/agreement, and approved a D. B. Lahore case, namely, Muhammad Ashraf v. Muhammad Sharif and 3 others (2) in which the same view found favour with a Division Bench comprising of the present Chief Justice of Pakistan and Mr. Justice Sardar Muhammad lqbal. The above rulings support the contention of Mr. Muhammad A.I Sayeed. However, a larger Bench of the Supreme Court has recently taken a contrary view in the case of Muhammad Yousuf v. Abdullah (3). In Civil Appeal No. K-90/78 (decided on 30-8-1980), wherein the majority view com-- prising of Dorab Patel, Muhammad Haleem and Abdul Kadir Sheikh, JJ. Was that upon the expiry of the period of lease/tenancy agreement the tenant becomes a statutory tenant under the Rent Restriction Ordinance and that the terms and conditions of the lease/tenancy agreement cease to apply. Whereas, Naseern Hassan Shah, J. Concurred with the conclusion arrived at on merits, but dissented from the majority view on the question of correct tress of the aforesaid Lahore case of 1971 and held that the same was correctly decided. In other words Mr. Justice Naseem Hasan Shah adhered to the view taken in the aforesaid earlier Supreme Court case, namely, Alifdin v. Khadim Hussain. Since the case of Muhammad Yousuf v. Abdullah has been decided subsequently by a larger Bench, I am bound to follow the latter case. In fact I had followed the aforesaid judgment of the Supreme Court recently in First Rent Appeal No 23 of 1980, decided by me on 8-11-1980. In this view of the matter the contention of the learned counsel for the respondent that the appellant was obliged to pay monthly rent in advance by 5th of each month because of clause (4) of the expired agreement dated 1-9-1968 Exh. 6 is untenable. (1) 1980 SCMR 767(2) PLD 1971 Lah, 6110 (3) PLD 1980 SC 298 (b) It may be pertinent to mention that the period mentioned in the aforesaid agreement was 11 months, which had expired on or about 1-8-1969, and, thereafter, the appellant had become a statutory tenant and the term B and conditions contained in the aforesaid agreement were no longer bind on the parties as their rights and obligations in respect of the payment o rent were to be regulated in terms of section 13(2) (i) of the Ordinance It will be advantageous .To reproduce hereinbelow the above provision ofthe Ordinance and a proviso to the above subsection, which read as follows :-- "Section 13.-(1) . ------------------------------------------. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applica--petition, is satisfied that- (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable ; or (ii) ------------------------------------. the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the, application; it may be noticed ' that' under the above provision of law if a landlord seeks ejectment of a tenant on the ground of non-payment of rent, he is required to prove that the tenant has not paid or tendered rent due from him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within 60 days from the period for which rent is payable. But before passing an ejectment order on the above ground a rent Controller is obliged to give a reasonable opportunity to the tenant.
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Furthermore, Rent Controller has discretion to refuse ejectment on the above ground if the facts of the case warrant such a conclusion. 5. (a) The contentions raised by the learned counsel for the parties referred to hereinabove in para. 3(a) are inter-connected and, therefore, can be taken up together. It may again be pointed out that the respondent had sought ejectment of the appellant on the ground that he was in arrears of rent for the period commencing from April, 1970 to February 1971, amounting to Rs. 1,925, which he had failed to pay in spite of repeated demands in this behalf. Whereas the plea of the appellant was that he had paid rent for the period mentioned in para. 2 of the written statement in the manner specified therein, referred to hereinabove in para. 1. The appellant has been able to prove the payments mentioned in para. 2 of the written statement through rent receipts Exhs. 8 and 9 and through Messrs United Bank Ltd. Certificate dated 3-3-1975 Exh. 17. Exh. 8 is a receipt undated showing the payment of rent for the months of October and Novem--ber 1969, whereas Exh. 9 is a receipt dated 1-8-1970 being for the rent for the months of December, 1969 to March 1970, amounting to Rs. 700. Whereas Exh. 17 is a certificate issued by Messrs United Bank Ltd. Tariq Road Branch certifying that Cheque No. CBR-803332 for Rs. 1,050 issued by Amir A.I Rehmatullah on 1-8- 1970 in favour of Ibrahim, was collected by Messrs Habib Bank Ltd. Burns Garden Branch in clearing on 22-8-1970. It has been vehemently urged by Mr. Muhammad A.I Sayeed that Exh. 8 being the receipt for October and November, 1969 cannot be relied upon by the appellant for the reason that the same was given against Cheque No. 785919, which was dishonored. In support of the above contention the learned counsel for the respondent has invited my attention to Messrs Habib Bank Ltd's. Certificate dated 29-12-1970 Exh. 7, certifying that the above cheque was dishonoured with the remark "not arranged for" and also to the statement of P. W. 1 Ibrahim, who has deposed that the opponent had paid rent for 2 months by cheque which was dishonoured by the Bank in the year 1969. However, in cross-examination he has admitted the fact that in the above receipt Exh. 8, it was not mentioned that the same was given against the above cheque. He has further admitted that in fact be had issued Exh. 8 for the months of October, and November, 1969. On the other hand, it has been urged by Mr. Khalid Ishaque that the respondent having not pleaded the above fact of dishonouring of the above cheque cannot be permitted to raise the same. His further contention was that the appellant in his deposition has explained that upon dishonouring of the above cheque, he had paid the rent in question in cash, for which the above receipt Exh. 8 was given. Apart from the fact that the respondent has not raised any such plea in her rent application, in my view there is no reliable evidence on record to conclude that in fact the appellant had not paid the rent for the months of October and November, 1969. On the contrary from the following documentary evidence/facts, the payment of the above rent has been proved; (i) Rent. Receipt Exh. 8 does not mention that it was issued against any cheque. '(ii) That the appellant in his letter dated 19-10-1970 Exh. 14 sent, under registered A. D. Had specifically stated that he had paid the rent amounting to Rs. 350 against receipt No. 3 dated 19-4- 1970. The above letter was not replied to by the respondent refuting the above allegation. (iii) That the respondent has not made any averment in the rent application to the effect that the aforesaid rent receipt Exh. 8 was not binding on her for the reason that the cheque was dishonoured. (iv) The respondent did not send any letter either for cancelling the above rent receipt Exh. 8 upon dishonouring of the cheque or for calling upon the appellant to pay the above rent. (v) That the respondent has not alleged any default in respect of the above two months, October and November, 1969. (b) On the State of the evidence on record the appellant has been able to prove that in fact he had paid rent up to the period expiring on 30-9-1970--in the following manner (i) Exh. 8, rent for the months of October and November, 1969-Rs. 350.
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(ii) Exh. 9 rent for the period from December, 1969 to March, 1970 Rs. 700. (iii) Exh. 17, Messrs United Bank Ltd.'s certificate dated 3-3-1975 certifying the payment of Rs. 1,050 which catered for the period commencing from April, 1970 to 30-9-1970. It has also been proved that on 27-3-1971 the appellant sent a money Order (N. 3879) for a sum of Rs. 700 for the period of October, 1970 to January 1971, and not up to March, 1971 as averred in the written statement by the appellant, which was refused by the respondent as she had already filed rent application on 1-3-1971. It may be pertinent to mention that the appellant in his aforesaid letter dated 19-10-1970 Exh. 14 addressed to the respondent pointed out to her that the appellant was surprised when the respondent's representative called on him demanding the rent of the premises and further pointed out that he had made payments in the aforesaid manner and requested her to issue rent receipt against the aforesaid cheque for Rs. 1050, being the rent for the months of April, 1970 to September, 1971. It is an admitted position that no reply to the above letter was sent by the respondent nor any rent receipt for the period from April, 1970 to September, 1970 was issued. After that without receiving any receipt or reply the appellant sent the aforesaid money order on 27-3- 1971 for the period from October, 1970 to January, 1971. It may also be pertinent to observe that Mr. Muhammad A.I Sayeed has also invited my attention to the fact that above Exh. 8 does not bear any date, whereas the appellant in his aforesaid letter dated 11-10-1970 has given 19-4-1970 as the date of the aforesaid receipt and the fact that the appellant in his written statement as well as in his aforesaid letter dated 19-10-1970 has mentioned 20th August, 1970 as the date of the cheque for Rs. 1,050, whereas in the aforesaid Messrs United Bank Ltd's certificate the date of the cheque given is 1-8-1970. In my view, the above discrepancies are of no significance inasmuch as P. W. 1 Ibrahim has admitted the issuance of the rent receipt Exh. 8 for the two months mentioned therein and, therefore, the fact that no date of the issuance was mentioned in the above rent receipt would not make any difference. Furthermore, no default for the period mentioned in the said receipt has been averred in the rent application as pointed out hereinabove. It is true that in the written statement as well as in his aforesaid letter dated 19-10- 1970 the appellant had mentioned 20th August as the date of the above cheque, whereas the Bank in its aforesaid certificate had given 1-8-1970 as the date of the cheque. However, the above discrepancy is also of no significance inasmuch as the cheque number given by the appellant in his written statement as well as in his aforesaid letter dated 19-10-1970 is the same which has been mentioned in the above Bank's certificate Exh. 17. Furthermore, the above cheque was presented for clearance on 22-8-1979. It seems that the appellant must have given the above cheque approximately on or about 20th August, 1970. In view of the above state of evidence on record the respondent has failed to prove the default as alleged in the rent application i.e. default for the period commencing from April, 1970 to February, 1971. 6. (a) However, the question which remains to be considered is, as to whether there was any alleged default subsisting in terms of section 13(2)(i) of the Ordinance at the time of filing of the rent application. It has been urged by Mr. Khalid Ishaque that since the appellant had alleged a specific default, the learned First Appellate Court was not justified in setting up a new case for the respondent and in granting ejectment on a new ground, namely, that there were repeated defaults according to the appellant's own averment. Whereas it was contended by Mr. Muhammad A.I Sayeed, learned counsel for the respondent that under section 13(2)(i) of the Ordinance, what is to be proved by a landlord, is default/defaults within the meaning of the above provision and that there was no legal requirement to specify the period of default in view of the fact that the law of pleading is not applicable to rent cases. Mr. Khalid Ishaque has referred to the case of Muhammad Saddiq v. Mst. Ghafuran Bibi (1), the case of Syed Rashid Hussain and 2 others v. Hussain Haji Ahmad (2), the case of Messrs Faridsons Ltd. And another v. Government of Pakistan (3), the case of Sardar Ashiq
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Muhammad Khan Mazari and .3 others v. Chairman, Federal Land Commission Islamabad and 4 others (4) and the case of Niaz A.I v. Ibrahim (5). Whereas Mr. Muhammad A.I Sayeed has relied upon the case of Subhan A.I alias Sobho v. Mst. Sat Bai (6), the case of Haji Fida Hussain v. Muhammad Ibrahim Khan (7), the case of Messrs Textile Trading Company Ltd. v. Syed Jalilur Rehman and 7 others (8), the case of Muhammad Alimullali v. Ziaul Islam (9), and the case of Alifdin v. Khadim Hussain (10). (b) Reverting to PLD 1971 SC it may be observed that the facts of the above case were that wife brought a suit for dissolution of marriage on the ground of habitual cruelty, non-maintenance and misappropriation of property and ornaments. Upon finding against plaintiff on all the above points the suit was dismissed by the trial Court. However, the High Court granted dissolution of marriage by way of 'khula". It was held by the Supreme Court that the procedure adopted by the High Court was highly improper as the defendant in the suit did not have the opportunity of contesting the above issue on the question of 'khula' '. (c) With reference to 1973 Note (Karachi), it will suffice to observe that in the above case it was held that though the provisions of Civil Procedure Code are not applicable to proceedings under the Rent Ordinance, but a party cannot be allowed even in rent proceeding to advance a plea inconsistent with his own plea. (d) Reverting to PLD 1961 SC it may be stated that the licence of Messrs Faridsons to act as an importer and exporter was suspended without any prior notice, which action was held to be illegal by the Supreme Court inter alia on the ground that no person should be condemned unheard and that the above suspension was in violation of the above principle of natural justice. It was observed by Cornelius, J. That, "I found that the proceedings are judicial if the matter has to be decided on evidence produced and after opportunity to the person concerned to meet the case against him, and the determination can form the basis of an order entailing civil consequences to a party". (e) Reverting to PLD 1977 Lahore, it will suffice to observe that while deciding a writ petition against the order passed under Martial Law Regulation 115 by the Federal Land Commission, it was observed by Mushtaq Hussain, J. That "the purpose of the issuance of notice to a party whose rights are to be determined is that he should not be condemned unheard. Hearing of course requires that the person to be heard should be in the know of the case that he has to meet". (1) PLD 1 71 SC 192(2) PLD 1973 Note 138 at p. 209 (3) PLD 1961 SC 537(4) PLD 1977 Lah. 461 (5) PLD 1976 Lah. 1057(6) PLD 1964 Kar. 206 (7) 1972 SCMR 262(8) 1972 SCMR 384 (9) PLD 1973 Kar. 56(10) 1980 SCMR 767 (f ) With reference to PLD 1976 Lahore, it may be observed that in the above case the facts of the case were that the landlord filed a rent application for ejectment on the ground that the tenant was in arrears of rent for the period commencing from April, 1973 to August 1973. The above application was granted by the learned Rent Controller, which was upheld by the learned 1st Appellate Court. The tenant filed a second appeal in the High Court, 2 orders of the Courts below were set aside. It may be observed that in the above case it was pleaded by the tenant that the landlord used to receive rent periodically after intervals and not regularly every month. In support of the above averment he produced 3 rent receipts. It was also alleged by the tenant that in fact he had paid the rent for the aforesaid months, for which no rent receipt was issued by the landlord. On the basis of the above averments, it was held that the landlord failed to prove that the tenant had committed a deliberate default and that it was a fit case, in which the discretion should have been exercised in favour of the tenant. Zakiuddin P.I, 1., observed as follows in para. 11 of the judgment; "It has been argued on behalf of the respondent that in case of non--payment of rent, it is obligatory to pass ejectment order against the tenant. Such question can be resolved only in the
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circumstances of each and every case. If default has been committed by a. Tenant deliberately then order of ejectment against him should be passed, but in case deliberate default is not proved then it is discretionary with the Controller to pass such order. He may or may not pass ejectment order against the tenant in the ,given circumstances of the case though default in the payment of rent is proved. It has been held to be so in Muhammad Shafi v. Iqbal Ahmad and another and Major Feroze Din Khan v. Sh. Muhammad Amin." (g) Reverting to the case of PLD 1964 Karachi, it may be stated that in the above case it was held that a default committed by a tenant cannot be wiped out or erased, nor a penalty incurred be stayed off by subsequent pay--ment. The above observation was made with reference to the contention raised by the learned counsel for the tenant before the High Court in the Second Appeal that since the filing of the second appeal in the High Court, his client has been most punctilious in payment of his monthly rent to the respondent landlady at the enhanced rent. (h) With reference to 1972 SCMR, it will suffice to observe that it was held that tender of rent in terms of section 13(2)(i) should be within time prescribed therein and that the fact that the defaulting tenant had deposited rent with the Rent Controller before the ejectment application was moved by the landlord is of no consequence. (i) Reverting to 1973 SCMR 384, it may be observed that the conten--petition raised by the learned counsel for the tenant that the Rent Collector of landlord used to come at intervals of several months and used to collect rent in lump sum was not accepted and it was held that the above implied term was never pleaded by the petitioner in his written statement. It was…
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