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Petitioner: MUHAMMAD SALIM and anothers VS Respondent: Mst. AMATUS SABOOR and 4 others
Court Name: Sindh High Court Judge(s): Muhammad Mazhar Ali Title: MUHAMMAD SALIM and anothers vs Mst. AMATUS SABOOR and 4 others Case No.: First Rent Appeal No,1011 of 1987 Date of Judgment:1988-12-10 Reported As: PLD 1989 Karachi 185 Result: Order accordingly
JUDGMENT
JUDGMENT ' Aggrieved by the order of the learned III Senior Civil Judge and Rent Controller, Karachi (East) dated 31-8-1987 passed in Rent Case No,2171/85, ordering their eviction from 1st floor of outhouse of the building standing on plot No,J.M.2/669, 670, Jamshed Quarters known as lqbal Manzil, situated at Bahaduryar Jang Road, Karachi (hereinafter referred to as "the demised premises") within sixty days from the date of the order, the appellants/tenants have filed this appeal. 2. The respondents filed an application on 29-5-1985 under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) against the appellants for their eviction from the demised premises on the grounds of (1) wilful default in payment of water charges/tax for the period from 1-7-1984 to 30-6-1985, which were to be paid/remitted by them by 30-6-1984 despite demand contained in letter dated 9-6-1984 and (2) personal bona fide requirement in good faith for their own joint occupation and use. It was further averred in the ejectment application that the property in question was owned by late M.A.M.A. Farshad alias F.F.Musharrif from whom the applicants/respondents had inherited the same. The deceased owner abovenamed had in fact filed ejectment application against the opponents/appellants as well on the ground of default in payment of monthly rent but it stood dismissed by High Court on 12-5-1983. It was also stated in para 6 of the application as under: "(a) That the applicants do not own any other property/building at Karachi or elsewhere in Pakistan except the property/building in question. (b) That the applicant No,2, his wife and two children are putting up in the premises gifted to the wife of the said applicant by her sister. The applicant No,2's previous business being a Limited
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Company, he had been paying rent to his wife since January, 1973 upto October, 1982. Thereafter the applicant No,2 has been paying the rent. (c) That the applicant No,1, the widow of late M.A. M.A. Farshad alias F.F. Musharrif is presently staying with the applicant No,2, as she has got no building/property of her own to live in permanently. The said applicant No,1 continues to move and live with the other applicants as well. (d) That the applicant No,3 lives with her husband and four children, in a tenanted premises acquired in the name of her husband as per address given in the title of this application. (e) That the applicant No,4, his wife and two children are also living in a tenanted premises at the address disclosed in the title of this application. (f) That the applicant No,5 has also acquired tenanted premises in the name of his wife Mrs. Zeenat Iqbal at the address disclosed in the title of this application and lives with his family at present comprising three children." 3. The respondents filed written statement admitting that the property in case originally belonged to late M.A.M.A. Farhad, who died on 3-1-1971 and upon his death it devolved upon the respondents Nos.2 to 5 who became co-owners thereof. It was further denied that the applicant was neither a landlord or co-owner of the property in case inasmuch as she was joined as party in previous proceedings between the respondents Nos.2 to 5 and the appellants in respect of the same property, upto Hon'ble Supreme Court of Pakistan. It was also admitted that the appellants are joint tenants of the respondents Nos.2 to 5 in respect of the first floor of outhouse of the property in case on monthly rent of Rs,60 since 1971. The tenancy of the demised premises was, however, stated to have been obtained by them from the deceased only upon payment of Rs,28,000 as pugree. It was further mentioned in the written statement that the respondents had mala fidely suppressed the disclosure of the particulars of the accommodation in all the three tenements of the property in case. The fact of filing the earlier Rent Case No,857/86 by the deceased owner was admitted and the details of the proceedings which led to the filing of Civil Petition for Special Leave to Appeal No,K-329/83 and order dated 28-2-1984 passed thereon by the Supreme Court were also narrated. The default in payment of water charges was denied. It was also denied that the respondents ever demanded the alleged water charges for the period in question either orally or by letter dated 9-6- 1984 or by any other letter. Additionally it was stated that in the previous rent case No,857/86 tentative rent order was passed on 11-1-1986 whereby the appellants were directed to deposit the rent in Court with a direction to the respondents Nos.2 to 5 not to withdraw the rent till the final decision of the case as the sum of Rs,950 was in dispute. The respondents Nos.2 to 5 had, however, withdrawn the rent during the pendency of the First Rent Appeal No,48 of 1979 without notice to the appellants and hence the sum of Rs,950 was overdrawn by them. After the final decision of the Supreme Court the appellants remitted the rent by three money orders to the respondent No,2 who was rent collector of the property in case, as per details given therein. Upon refusal of the same the appellants deposited the rent through Miscellaneous Rent Case No,2137/85. It was further averred that there was a practice between the respondent No,2 and the appellants that the respondent No,2 after receipt of bill of water charges used to advise the appellant in writing as to actual amount payable by the appellants and upon receipt of such photocopy of the bill from the respondent No,2, the appellants used to pay the water charges to the respondent No,2 and in that manner the appellants had paid water charges on 30-6-1984 to the respondent No,2. Since the respondent No,2 had not made any demand or water charges from the appellants, the same was not paid. The receipt of the letter dated 9-6-1984 mentioned in the application was denied. The abovenoted sum of Rs,950 drawn in excess by the respondents Nos.2 to 5 was claimed to be adjustable against the amount of water charges due, if any, against the appellants. It was further pleaded that the demised premises being merely an out-house in occupation of the appellants is not tenable in law. The above reproduced averments made in para 6(a) to (f) were also denied. It
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was further mentioned that the failure of the respondents to give particulars of their present accommodation and its insufficiency or non-suitability was ex-facie mala fide and the eviction of the tenants was sought with a view to sell the property for a very handsome amount. Having received the pugree of Rs,28,000 the respondents were estopped to claim ejectment of the appellants without reimbursing the appellants according to market value of the premises in case. 4. The following preliminary objections were also raised in the written statement:- (a) The application was bad for misjoinder of applicant No,1 as she was neither landlady nor co- owner of the property in case. (b) The application was not signed and verified by all the applicants, who were admittedly residing within the jurisdiction of the Court and hence the respondent No,2 had no authority to sign and verify the same on behalf of all the applicants and that the power of attorney purported to have been executed in his favour by all the applicants was also not produced. (c) The application was barred by doctrine of estoppel and waiver. (d) The.Application was also barred by "aches. 5. Out of the pleadings of the parties the learned Rent Controller framed the following issues: (1) Whether the application is maintainable under the law? (2) Whether the opponents have committed default in payment of water charges for the period from 1-7-1984 to 30-4-1985? 3. Whether the premises in question are required by the appellants in good faith and bona fide for their joint use and occupation? 4. What should the order be? 6. After recording evidence of the parties the learned Rent Controller came to the conclusion that the objections raised on behalf of the opponents/tenants against the maintainability of the ejectment application were without substance. Hence he answered the issue No,1 in the affirmative. He, however held that the applicants/ respondents had failed to establish default wilfully or otherwise either in payment of rent or in payment of water charges and, consequently, he answered the issue No,2 in the negative. Upon analysis of the evidence brought on record and exhaustively dealing with the learned counsel for the parties the learned Rent Controller reached the conclusion that the applicants/respondents had established their need for the premises in question for their joint use and occupation. He, consequently answered the issue No,3 in the affirmative. Hence this appeal. 7. I have heard the learned counsel for the parties and perused the relevant record with their assistance. 8. Assailing the finding of the learned. Rent Controller on issue No,1 Mr. M.A.Kazi. Learned counsel for the appellant reiterated the same contentions before me which were made before the learned trial Court. Firstly, referring to Order III rule 2(a) C.P.C. As applicable to Sind, he submitted that all the respondents being residents of Karachi within their local limits of the jurisdiction of the Rent Controller, could not appoint and be represented by the recognized agent or attorney. In his submission, the ejectment application should have been signed and verified by all the respondents; whereas it has been signed and verified by respondent No,2 for self and as attorney of the other respondents and hence it was not entertainable in law. Besides, the counsel further contended that the respondent No,2 had no authority to verify and sign the application on behalf of other respondents inasmuch as he had not produced any power of attorney allegedly executed in his favour by the other respondents. He sought to support his contention by the authorities reported in PLD 1964 Lah.648, PLD 1982 Kar. 71 and 1987 MLD 2818. The last mentioned case, it may be stated here at the outset, is distinguishable on its own facts., 9. His next contention in this behalf was that the power of attorney allegedly executed in favour of the respondent No,2 by the other respondents was not genuine. In this connection he submitted
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that during the cross-examination of respondent No,2 a suggestion was made that the power of attorney executed in his favour did not bear the signatures of the respondents. In this view of the matter, the learned counsel for the appellants emphasised, it was incumbent upon the respondents to examine the Notary Public who had attested the said power of attorney and their failure to do so calls for an adverse inference being drawn against them. In short, the counsel's contention was that the burden of proof of the execution of the power of attorney by the respondents was upon them and it could be discharged only by producing the Notary Public who had attested it. In support of his contention he placed reliance on the decisions reported in PLD 1977 Lah.267 and PLD 1977 Pesh.27. 10. It was next contended by him that in paras. 3 and 4 of his affidavit D.W.1 Muhammad Salam had specifically stated that the alleged power of attorney is forged and fabricated by the applicant No,2. He was not cross-examined on this point. Hence relying upon the authorities in the case of Fida Hussain v. Mst. Anwari Khatoon (MLD 1985 Kar.110) and Muhammad Yasin v. Shabbir Ahmed (1985 CLC 2111), the learned counsel emphasised that the presumption is that evidence of D.W.1 on this point has been accepted by the respondents. On my enquiry, the learned counsel for the appellants admitted that in the written statement no plea about the power of attorney being a bogus document was taken. 11. Mr. Akhtar Mahmood, learned counsel for the respondents, on the other hand, supported the impugned order on issue No,l. Replying to the arguments of the learned counsel for the appellants he submitted that Civil Procedure Code does not apply to the proceedings under the Ordinance save to the extent as it has been specifically provided in section 20 of the Ordinance. He therefore, urged with vehemence that the provisions of Order III, rule 2, C.P.C. Are not in terms applicable to the proceedings before the Rent Controller under the Ordinance. In short, he submitted that the objections raised against the maintainability of the application are misconceived. In support of his contention he referred to the following authorities: (a) Khadim Mohiuddin and another v. Ch.Rahmat Ali Nagra and another (PLD 1965 SC 459). ' It was a case under the West Pakistan Urban Rent Restriction Ordinance (VII/59). While considering the precise character of the office of the Controller, the Supreme Court observed: "From the provisions of the Ordinance it appears that though under section 16 the 'Controller' has been given powers 'of summoning and enforcing the attendance of witnesses and compelling the production of evidence' he is not bound in every case to follow the procedure as laid.Down in the Code of Civil Procedure." (b) Javed Iqbal v. Rana Muzaffar Khan (1976 SCMR 229). ' It was also a case under the repealed Rent Ordinance of 1959. In this case also the Supreme Court held: "Strictly speaking the provisions of the Evidence Act and the Civil Procedure Code are not in terms applicable to the proceedings before the Rent Controller under the Ordinance". (c) Chaudhry Muhammad Ali & Co. v. Dr. Sirajul Hag and 2 others (PLD 1972 Quetta 5) ' It was also a case under the repealed Ordinance of 1959. In this case the eviction applications had not been signed by the landlords but by their Advocate, and as the said Advocate was not their attorney, the submission raised was that the eviction applications were null and void. This plea was, it is further pertinent to note, for the first time raised before the first appellate authority. "This objection was advanced on the basis of Order VI rule 14 C.P.C. And the learned District Judge rejected it on two grounds. These were that the objection, which was of a technical nature, had been raised because it had not been raised in the trial Court, and the other ground was that the provisions of Civil Procedure Code including Order VI rule 14 C.P.C. Were not applicable to proceedings under the said Ordinance. When the matter came before the High Court in second appeal the same contentions were reiterated on behalf of the appellant-tenant. The learned single
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Judge first referred to the judgment of the Supreme Court in the case of Khadim Mohiuddin (Supra) wherein it is held that a Rent Controller is not a Court. The counsel for the appellant, however, submitted before the High Court that the principles of Order VI rule 14 C.P.C. Were applicable to the proceedings under the said Ordinance and that, as the cases under appeal had not been properly signed under Order VI rule 14 C.P.C. Both Courts below had usurped jurisdiction in entertaining these eviction cases and then allowing them, and in support of this proposition learned counsel referred to the judgments reported in PLD 1967 Lah. 653 and PLD 1968 Lah.657. After quoting a passage from the second above-noted Lahore case, a learned single Judge of the High Court of Sind and Baluchistan (Quetta) held as under: "No exception can be taken to the view in this judgment which had reference to the facts of the case before their Lordships. But merely because certain provisions of the Civil Procedure Code such as Order IX, rule 13 are applicable to cases under the said Ordinance, it does not follow that all the provisions of the Civil Procedure Code are applicable to the said Ordinance, and it is not irrelevant to point out here that the provisions of Order IX, rule 13, C.P.C. Are of an ameliorative nature, whilst these of Order VI, rule 14,. C.P.C. Are of a technical nature, therefore the observations cited are not relevant to learned counsel's argument that the Rent Controller was bound by the provisions of Qrder VI, rule 14, C.P.C. Similarly, the other cases cited do not relate to this rule, nor is there anything in these judgments to lead to the conclusion that all the provisions of the C.P.C. Are applicable to proceedings under the said Ordinance." (d) Province of Sind v. Nisar Ahmed (1983 CLC 1905). ' It is a case under the Sind Rented Premises Ordinance (XVI/79). 12. The learned counsel for the respondents also referred to the decisions reported in 1983 CLC 1905, 1984 CLC 2898, 1987 CLC at pages 971 and 2516. It has been held in all these authorities also that the Civil Procedure Code as such is not applicable to the proceedings before the learned Rent Controller. 13. Mr. Akhtar Mahmood also submitted that as a matter of fact, the power of attorney was executed on 29-5-1985. It was attested on the same date photostat copy thereof was filed alongwith the ejectment application on that very date. The original power of attorney was produced in the office of the Court on the same date and it was, returned to the respondents inasmuch as the photostat copy had already been attached with the ejectment application. The learned counsel for the respondents, therefore, pleaded that the objection against the maintainability of the ejectment application was wholly misconceived and untenable. 14. 1 have given my earnest consideration to. The submissions made at the bar and have also carefully perused the several authorities cited by both the sides. It is now a well settled view of this Court and so has it been held by the Supreme Court that the provisions of the Civil Procedure Code are in terms not applicable to the proceedings under the Ordinance, except those specifically embodied in section 20 of the Ordinance. I do not, therefore, feel hesitant in reaching the conclusion that the provisions of Order II, rule 2 C.P.C. Are not attracted to the rent proceedings and hence no legitimate objection can be made against the ejectment application being verified by and made under the signatures of a duly constituted attorney. Besides, the ejectment application in the instant case has been verified and made under the signatures of Jamal Mushariff, who is also one of the co-owners of the property in question. It is the legal right of even one of the several co-owners of the property to apply for and seek the eviction of the tenant. Moreover, the plea that the power of attorney was bogus was not as such admittedly taken in the written statement and hence no evidence on such a plea could be led by the appellants or be given any consideration by the learned Rent Controller or in appeal by this Court. Furthermore, in reply to a suggestion made to him during his cross-examination, the respondent No,2, who also claimed to be the duly constituted attorney of respondents No,1 and Nos.3 to 5, categorically deposed: "it is incorrect to
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say that P/E has not been signed by applicants and I have manipulated the same". There was even no suggestion made to the respondent No,2 in his cross-examination that the power of attorney, was not duly attested by the Notary Public and hence the question of respondents' failure to produce the Notary Public or withholding the best evidence and on that score drawing an adverse inference against them, simply did not arise. The learned Rent Controller did not, therefore, commit any error in answering issue No,1 in the affirmative. 15. The next point canvassed by the learned counsel for the appellants was in respect of issue No,3 which has been decided against the appellants. Mr. M.A. Kazi, learned counsel for the appellants initially argued that the learned trial Court has simply recorded the contentions made by the parties' representatives before him without giving his reasons for answering the issue No,3 in the affirmative. The learned counsel for the appellant, therefore, vehemently urged that since the learned Rant Controller has failed to record a finding on the point of good faith and so also about the sufficiency of evidence adduced by the respondents for establishing their case of personal requirement. In short, his contention was that the learned Rent Controller has adopted a wrong method and hence his order is bad in law and liable to be set aside. This contention of the learned counsel for the appellant was, however, ultimately repelled by the learned counsel for the respondents. He drew my attention to the decision of the learned trial Court on this issue wherein he has specifically given his reasons for reaching the conclusion that the demised premises were bona fide required by the respondents for their personal use. 1, therefore, in the interest of justice called upon Mr. M.A. Kazi to address me on the merits of the case inasmuch as his abovenoted contention was based on improper reading of the impugned order and was to be repelled as such. Mr. M.A. Kazi, learned counsel for the appellants, thereupon made the following submissions with regard to issue No,3: (i) that the burden of proof of this issue was on the respondents which they have failed to discharge satisfactorily. What was pleaded has not been proved. It was patently a case of mere desire and not of bona fide need. The learned Rent Controller failed to refer to the cross- examination of the respondents witness whose evidence was full of contradictions; (ii) that the learned Rent Controller erred in not appreciating that the respondents Nos.2 to 5 were since long living separately even during the life time of their father and that they had strained relations, inter se. However, their claim for the demised premises for their joint use and occupation was false and mala fide. The examination of all the respondents was thus necessary and the failure to do so calls for an adverse inference being drawn against them. Reliance was placed on Haji Fir Muhammad v. Haji Abdul Rashid (1968 SCMR 959); (iii) that the learned Rent Controller also failed to appreciate that the demised premises (tenement in occupation of the appellants) is an out-house (servant quarter) and it could not bona fide be required by the respondents; (iv) that the learned Rent Controller erred in not recording his reasons for holding that the omission on the part of the respondents to provide any particulars of the present accommodation in their occupation in the ejectment application was of no significance. Or, that it was not necessary to do so; (v) that the learned Rent Controller failed to appreciate that the respondents had to establish their bona fide requirement of the demised premises, the mere fact that they were residing in rented premises notwithstanding. The learned counsel for the appellants relied upon the following cases: (a) Mst. Hajra Bai Suleman v. Mst. Aisha Bai (1982 CLC 1444). It has been held in this case as under:- "Mere occupation of a rented premises does not give a cause to the landlord to obtain ejectment unless a case is made out as provided by Section 13". (b) Fehmida Jehan Begum v. Varindamal (1980 CLC 604) It has been held in this case as under:
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"There is another important aspect of the case which although not taken into consideration by the Courts below cannot be ignored. Under section 13(3)(a) a landlord can obtain possession of the demised premises for his own occupation, inter-alia, on the condition that he is not occupying another residential building suitable for his needs and has not vacated such a building without sufficient cause. It, therefore, follows that in case the landlord is shown to be in occupation of other premises even though as a tenant himself, he must show that such premises are not suitable for his needs". (c) Associated Sales Agency, Karachi v. The Standard Insurance Company Limited (1985 CLC 2419). ' At page 2420 of the report it is observed as under: "Furthermore, merely because a landlord is in occupation of a rented premises he cannot ipso facto obtain an ejectment of tenant in respect of his own premises unless he proves his bona fide requirement". (vi) It was next contended by Mr. M.A.Kazi that the learned Rent Controller erred in law in not holding that exhibits A/15 to A/50 being of secondary nature were not admissible in evidence. In his submission, Ex.39 even does not bear the signature of the lessor. The signatures of the recipient of the rent paid vide Exhs. A/24, A/26, A/40 and A/41 were also not proved. (vii) Lastly, it was contended by Mr. M.A.Kazi that the respondents had expressed their alleged personal need of the demised premises as far back as. February 1978 during the pendency of the earlier ejectment proceedings filed by them against the…
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