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Petitioner: MUHAMMAD HABIB SUBHANI VS Respondent: MUHAMMAD AMEENHonorable Justice Farrukh LateefMian Shamsul Haq Ansari,MUHAMMAD AMEEN
2003 C L C 1584
2003 C L C 1584
[Lahore]
Before Farrukh Lateef, J
MUHAMMAD HABIB SUBHANI---Appellant
versus
MUHAMMAD AMEEN---Respondent
Second Appeal from Order No.26 of 2001, decided on 20th June, 2003.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13 & 15---Default in payment of rent---Proof---Evidence on record had proved that despite demand, tenant had failed to pay rent for alleged period of four months and also had failed to pay enhanced rent at rate of 25 % payable after three years as provided under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Attorney of landlord deposed on oath that tenant had not paid disputed rent despite demand-- aid attorney was not cross-examined by tenant---After said unrebutted statement of attorney of landlord, onus was shifted on tenant to prove that e had paid rent due to landlord---Tenant could not prove that on refusal of landlord to accept disputed rent he sent the same through money order and that landlord also refused to accept said money order---Tenant further made a vague statement that rent for disputed period stood paid to landlord, but nothing was produced by tenant on record to show as to how rent stood paid---Even witness produced by tenant had admitted --During cross-examination that rent in dispute was not paid by tenant to landlord in his presence---Willful default in payment of disputed rent, in circumstances stood proved on the record---Reasoning of Appellate Court in support of its finding that default in payment of rent by tenant was not proved, was that landlord could not prove rent deed and that he had failed to produce counterfoils of receipts of payment of rent-- Said reasoning was neither plausible nor logical and was based on erroneous assumption of law and fact inasmuch as the fact of relationship of landlord and tenant and rate of rent was admitted by tenant which did not require to be proved---Payment of rent for disputed period having specifically been denied on oath by special attorney of landlord, there was no occasion for landlord to have produced counterfoils of receipts of payment of rent---Concurrent orders of Rent Controller and Appellate Court below whereby rent petition and appeal of landlord were dismissed, were not sustainable-- Same were set aside and rent petition filed by landlord was accepted.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
--S. 5-A---Automatic increase in rent---Notice in respect of demand of such increase---Service of notice under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 by landlord to tenant for statutory increase of rent at rate of 25%, was not a condition precedent to invoke jurisdiction of Rent Controller---Said increase would 11ecome due on expiry of three years and would be deemed to be a rent due ---Duty was enjoined upon Rent Controller to examine each case whether default in payment of statutory increase was wilful or otherwise.
2001 SCMR 31 and Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207 ref.
Mian Shamsul Haq Ansari for Appellant.
Respondent: Ex parte.
Date of hearing: 13th June, 2003.
JUDGMENT
On 4-1-1997 Muhammad Habib Subhani filed an application against the respondent under section 13 of the Urban Rent Restriction Ordinance alleging therein that the respondent is his tenant in Shop No.2131, Ward No.8-H, Circular Road, Multan under a rent deed, since January, 1995 at the rate of Rs.1,250 p.m. payable in advance on the first day of each month; that he had defaulted in payment of rent since October, 1997, and that he was called upon to pay the outstanding rent in the month of November, 1996 and again in January, 1997 but he had declined to pay the same.
2. In reply to the said petition the respondent admitted that he is tenant of the appellant in the shop in question but asserted that he is tenant therein since the last 20 years; the tenancy was oral, that he had paid the rent due up to January, i997; that the appellant had declined to accept rent for the month of February, 1997 and on the order of the Court .he is depositing rent in the Court and that his application with regard to depositing rent in Court is also pending in the same Court.
3. The following issue was framed by the learned Rent ,Controller:--
(1) Whether the respondent is liable to be evicted on the ground of the non-payment of rent as alleged in the petition?
4. After recording evidence the learned Rent Controller came to the conclusion that appellant could not prove rent deed Exh.A.2, that respondent was tenant since prior to 1995 and that only one witness was produced by the appellant whose statement was not supported by any other evidence, hence allegation of default in payment of rent was not proved by the said statement in view of the fact that the respondent and his witness had denied about the alleged default in payment of rent. Rent petition was accordingly dismissed by the learned Rent , Controller on 27-5-2000.
5. Appellant's appeal against the aforesaid order was also dismissed by learned Additional District Judge, Multan on 18-10-2000.
6. In this S.A.O. the appellant (landlord) has assailed the aforesaid order of the learned Rent Controller and the Appellate Court on the grounds that default in payment of rent from October, 19915 to January, 1997 was proved on record; that section 5(A) of the Ordinance provides automatic increase of 25 % rent of non-residential building at the expiry of every three years. Respondent was also defaulter in payment of increased rent and the findings of the learned Courts below are the result of non-reading and misreading of evidence and are based on erroneous assumptions of fact and law.
7. Learned counsel for the appellant has been heard. Records of the lower Courts have also been perused.
8. Relationship of landlord and tenant was admitted by the respondent in his reply to the rent, petition as well as while appearing in the witness-box as R.W.1. In his statement before the learned. Rent Controller, respondent also admitted that rate of rent since 1995 was Rs.1,250 p.m. In view of the aforesaid admission regarding relationship and rate of rent it was of inconsequential import if the rent deed Exh. A. was not formally proved by producing the scribe and the marginal witnesses especially when the said document was admitted in evidence without objection from the respondent. Ghias-ud-Din A.W.4 Special Attorney of the appellant (landlord) while appearing in the witness-box had produced special power of attorney Exh.A.3 and besides supporting the contents of rent petition had specifically deposed that in spite or demand, respondent had not paid the rent for the period from October. 1996 to January, 1997 and had also not paid enhanced rent at the rate of 25 % after three years since January, 1997. He was not cross-examines on the point that he was not Special Attorney of the landlord. After the said statement on oath by the Special Attorney of the appellant (landlord) the onus shifted on the respondent (tenant) to prove that he had paid rent due for the aforesaid period.
9. Muhammad Ameen respondent while appearing in witness-box as r R.W .1 had said that the appellant had refused to accept the rent whereupon he, had sent the same through money order but he also refused to accept the money order which was returned. Nothing was produced on record in support of the said assertion. The respondent further made vague statement that rent for the aforesaid period stands paid by him but nothing was produced on record as to how the rent stood paid. His, witness Abdul Sattar R.W.2, admitted during cross-examination that rent was not paid by the respondent (tenant) in his presence.
10. A perusal of the record of Rent Controller shows that respondent could not produce any evidence regarding payment of rent for the period from October, 1996 to January, 1997 on account of which an order under section 13(6) of the Rent Restriction 'Ordinance was passed on 8-11-1998 directing the respondent to pay the rent due for the said period within 30 days and to deposit the future rent due in the Court by 15th of each' month.
11. It was in compliance of the aforesaid order that rent was deposited by the respondent at the rate of Rs. 1,250 p.m. and he had also been depositing future rent at the same rate. By the aforesaid deposit the respondent could not be absolved of alleged default in the payment of rent for the period from October, 1996 to January, 1997.
12. The default in payment of rent for four months viz. October 1996 to January, 1997 was, therefore, proved on record. Reasoning of the learned Appellate Court given in the impugned judgment in support of its finding that default was not proved is that the appellant could not prove the rent deed Exh.A.2 and had failed to produce counter-foils of receipts of payment of rent. Therefore, denial by the landlord about receipt of rent for the said period was not sufficient to shift the burden to prove payment of rent on the tenant and that withholding of the counter foils of the receipts for the period in question by the landlord was sufficient to belie his assertion that rent was not paid.
13. ,The said reasoning of the learned Appellate Court is neither plausible nor logical and is based on erroneous assumption of law and fact in as much as the fact of relationship of landlord and tenant and the rate of rent since January, 1995 was admitted by the respondent and was. therefore, not required to be proved under Article 113 of the Qanun-e Shahadat Order, 1984. Payment of rent for the period in question was specifically denied on oath by the Special Attorney of the landlord, hence there was no occasion for the landlord to have produced counter-foils of the receipts of payment of rent for the aforesaid period as according to him rent was not paid. Therefore, question of issuing the receipts did not, arise.
14. In the said situation where the question of issuance of any receipt did not-arise, adverse inference for not producing counter-foils of the receipts which were not issued could not have been logically drawn against the landlord and it could not be presumed that since the counter foils were not produced, rent must have been paid by the tenant.
15. Relying on 2001 SCMR p.31, the learned Appellate Court has held that since no notice in respect of demand for automatic increase in rent as envisaged in section 5-A of the Rent 'Restriction Ordinance was given by the landlord, non-payment of rent at enhanced rate could not be deemed as wilful default. Judgment of the aforesaid citation was delivered on 21-10-1998 whereas in the case of Muhammad Irfan v. Muhammad Zahid Hussain Anjum,reported in 2000 SCMR p.207 which was decided subsequently on 22-9-1999 but was reported later in time, it is laid down that service of notice under section 5-A of the Rent Restriction Ordinance by landlord to a tenant for statutory increase of rent at the rate of 25 % was not a condition precedent to invoke the jurisdiction of Rent Controller. Said increase would become due on expiry of three years and would be deemed to be a rent due. Duty was enjoined upon Rent Controller to examine each case whether default in payment of statutory increase was wilful or otherwise.
16. In this case wilfulness was proved inasmuch as institution of the ejectment petition with copy of rent deed Exh.A.2 which was admitted in evidence without objection, containing stipulation of increase of rent at the rate of 25% after every three years was itself notice and knowledge of the same by the respondent. constituted due notice and was to be treated as substantial compliance of the notice.
17. Special Attorney of the landlord while appearing as A.W.4 had deposed that after expiry of three years the respondent was called upon to pay rent at the enhanced statutory rate but he declined. He was not cross -examined on the said point. While appearing as R.W.1 respondent admitted that rent since January, 1995,was Rs.1,250 p.m. and that not increased the same after three years at the rate of 25 % in payment of statutory increase of rent after expiry of three years therefore, also proved on record.
18. For the reasons stated above the impugned orders passed by the learned Rent Controller and the learned Appellate Court on 27-5-2000 and 18-10-2001 respectively whereby the appellant's rent petition and the appeal were dismissed are not sustainable, the same are set aside and the the rent petition filed by the appellant is accepted. Respondent is given a period of 15 days to hand over the vacant possession of the disputed shop of the appellant failing which the appellant would be entitled to get the possession of the-shop through execution proceedings from the concerned Court. Appeal accepted.
H.B.T./M-2002/L
Appeal accepted.