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Petitioner: SHAHRIYAR ALI PATUDI AND 3 OTHERs VS Respondent: MESSRS DECORA FURNISHERS
Court Name: Sindh High Court Judge(s): Saleem Akhter Title: SHAHRIYAR ALI PATUDI AND 3 OTHERs vs MESSRS DECORA FURNISHERS Case No.: First Rent Appeal No, 873 of 1982 Date of Judgment:1984-10-10 Reported As: PLD 1985 Karachi 47 Result: Appeal allowed
JUDGMENT
JUDGMENT ' The appellant filed an ejectment application against the respondent in respect of building on the plot bearing Nos. 3 and 5 Block No, 2, Central Commercial Area, P. E. C. H. S., Karachi. The premises was rented out under an agreement dated 10th December, 1969 executed between the appellant No, 1 and the respondent on a monthly rent of Rs, 1,500. It was alleged that the respondent has defaulted in payment of rent from 5-5-1977 and further that the appellants require the premises in good faith for their personal use and occupation for their partnership business. The respondent filed its written statement, in which it was pleaded that the appellant No, I had been representing to be the landlord and DO intimation was ever sent that the appellants Nos. 2, 3 and 4 are also the landlords and owners of the premises. It was admitted that the respondent is the tenant of the appellant No, 1 at a rent of .Rs, 1,500 P.M. It was further pleaded that the appellants do not require the premises for their own personal bona fide use and occupation, as they have not permanently shifted from Lahore to Karachi. According to the respondent the case has been filed on its refusal to pay rent @ Rs, 3,000 P.M. It was alleged that the respondent sent money order which was refused, consequently the respondent started depositing the rent in Court regularly. The learned Controller dismissed the application holding that the respondent has not committed any default and that the premises is not required for personal bona fide use and occupation of the appellants. It was also held by the learned Controller that no notice under section 13-A of the Sind Urban Rent Restriction Ordinance was served by the appellants. 2. I have heard. Mr. Farooq H. Naik and Mr. Mushtaq Memon Advocates at great length. The admitted position is that the agreement of tenancy was between the appellant No, 1 and the respondent. The other appellants were not party to that agreement. Mr. -Naik has stated that on 1-
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12-1969 the father of the appellants had orally gifted the disputed property to the appellants and a declaration of gift was executed by him on 28-5-1973 and subsequently their names were mutated in the records of P. E. C. H. Society on 31-7-1974. Therefore, according to the appellants as the transfer was made prior to the agreement of tenancy, no notice under section 13-A was necessary. On the other hand Mr. Mushtaq Memon the learned counsel for the respondent has contended that the factum of gift has not been established as the delivery of possession was not proved and further that the delay in making the declaration of gift and mutation casts doubt on the validity and genuineness of the gift. The appellants through Asfand Yar produced the original declaration of gift to which the only objection raised by the respondent's counsel was that it was inadmissible for want of registration. No other objection seems to have been raised at the time of production of this document, nor the statement has been challenged in cross-examination. In fact from this witness no question challenging the gift has been asked. This document being a declaration of gift made earlier, did not require registration, and has remained unchallenged. The other witness Meheryar Ali Patudi in his cross-examination stated that no notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance was given to the respondent: He further stated that the gift was made in 1974. This discrepancy in the statement of this witness does not invalidate the gift or makes the written document illegal or inadmissible. 3. The contention that as the possession was not delivered to the appellants by the donor there was no valid gift, does not seem to be correct. In fact the respondent has neither suggested such question to the appellants in cross-examination, nor produced any evidence to that effect. The learned counsel for the respondent has merely relied on the fact that the appellants or the donor did not at torn the respondent, and therefore, possession should be deemed not to have been delivered to the appellants. I am unable to agree with the contention because adornment of the tenant to the donee is one of the several methods of proving delivery of possession. It is not the only method of delivery of possession. The facts that in the declaration of gift it has been stated by the donor that the appellants were put in possession of the said property, and title deed and papers relating to the said property were immediately delivered to the donees coupled with the statement of the appellants that they have accepted the gift and that possession has been delivered to them and they are in possession of the premises in their own right, fully establishes the delivery of possession to the appellants. Subsequent to this the names of the appellants were also mutated in the records of P. E. C. H. S. All these factors show that the appellants were delivered possession of the premises at the time of the gift. Mr. Naik has contended that the respondent is a stranger to the gift and it cannot challenge either the factum of the gift or the delivery of possession. In this regard the learned counsel has referred to Ahmad Yar and another v. Muhammad Aslam (1). In this case the donor and donees had both stated that the possession of the gifted property was delivered to the donees, and therefore, it was held that pre-emptor being stranger to the gift had no locus standi to challenge the gift on the ground of-non-delivery of possession to the donees. In Fazal Ahmed v. Mst. Rakhi (2), it was held that objection as to delivery of possession can be taken either by the donor himself or by his heirs, but if the donor is himself supporting the gift, no effect can be given to such objection by a third party. Same view was expressed in Dost Muhammad Khan v. Imam Bakhsh (3). It is well-settled that in ease of gift under Muslim Law objection to the factum of delivery of possession B can be raised by the donor or any person claiming title under the donor. A third party who is completely stranger to the gift cannot legally and validly challenge the factum of delivery of possession. The appellants have produced donor's declaration of gift which has come on record unchallenged. Further more the two donees have stated on oath that the property has been gifted to them. In these circumstances, the respondent cannot challenge that the appellants are not in possession of the property, and
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therefore, the gift is not valid. Such a stand on the part of the tenant amounts to a contumacious conduct challenging the title of the landlord. 4. Now it is to be considered whether notice under section 13-A was necessary. An important aspect of the case is that when the agreement of lease was produced objection was raised that it required registration but both the learned counsel have frequently referred to it during their argument. According to this lease deed which was executed on 10th December, 1969, the tenancy was to commence from January, 1970. Even if this document is ignored reference can be made to Exh. B-3, which is a letter, dated 30-12-1969 from the appellant No, 1 addressed to the respondent informing it that the show room was ready for occupation from 1st January, 1970 and that the rent shall be payable from that date. It has been conclusively established that tenancy commenced from 1st January, 1970. The gift deed was made on 1-12-1969. The declaration made on 28-5-1973 speaks of an oral gift made on 1-12-1969 in favour of the appellants. Under Muslim Law an oral gift is permissible and is sufficient to transfer the property. It is not necessary that it should be reduced in writing. If by .Content and conclusive evidence it is proved that the donor has made an oral gift which has been accepted by the donee and possession has been delivered to the donee, the gift is complete. These facts stand established from the document which is a declaration! Of gift. A declaration of gift made by the donor 'confirming a past transaction does not require registration. The provision of section 17 of Registration. Act will apply only if the gift is made by a written instrument. (1) 1981 CLC 527 (2) PLD 1958 Lah. 218 (3) PLD 1971 Pesh. 150 If ownership of the building in possession of the tenant has been transferred by way of gift, sale or inheritance or any other manner then a notice under section 13-A intimating the tenant of such transfer is required to be served by the new owner. As the gift was made before the commencement of tenancy, the question of notice under section 13-A did not arise. The learned Controller has held that notice under section 13-A was necessary mainly for the reason that although gift was made on 1-12-1969 this fact was not mentioned in the lease agreement dated 10- 12-1969, whereby the appellant No, I described himself the sole landlord, without mentioning the fact that the appellants Nos. 2, 3 aad 4 are the co-owners and landlords of the premises. This observation completely overlooks that -under law any person entitled to receive rent whether on his own account or on behalf of or benefit of any other person is a landlord. A co-owner is entitled to recover rent on behalf of or for the benefit of other co-owner. One of the co-owners can validly enter into an agreement to lease the premises and he shall be deemed to be a landlord. It is not necessary to join all the co-owners in the lease. A person having an undivided share, in a house or rented land is a part-owner and has a right to recover the rent on behalf of other co-owner. In the circumstances notice under section 13-A was not necessary. 5. Now coming to the question of default; in the ejectment application it is alleged that the respondent has defaulted in payment of rent from 1st January, 1974 to April, 1977. The period of default can be divided in two parts, first from January, 1974 to March, 1974 and the second from April, 1974 to April, 1977. The respondent in his written statement and evidence has denied it. It has pleaded that as the respondent had refused to .Increase the rent, the appellant No, 1 with a view to harass the respondent filed the case. In the evidence it has been stated that the appellant No, 1 used to collect rent whenever he used to come to Karachi and some time the rent was paid to his father also. It was stated in the affidavit of evidence that the appellant or his father used to come to Karachi from Lahore after about 6 or 8 months or about a year to collect the rent in Jump sum. One receipt has been also produced to establish that rent from September to December, 1973 was paid to the appellant's father. The appellants have denied the execution of this receipt, but the rent upto December, 1973 seems to have been paid because the complaint is that rent from January,
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1974 has not been paid. The respondent's witness Muhammad Anwar has stated that on telephonic intimation he sent the money order for the months of January, February and March which was refused. In this regard he had written a letter to the appellant No, 1 which was returned with the endorsement that he has left the premises. Therefore, on respondent's own showing the rent for the month of January, 1974 to March, 1974 was sent by four money orders of Rs, 1,000 each and another money order for Rs, 500 on 24-6-1974., By letter dated 24-4-1974 the respondent stated that the money orders were sent on the telephonic instructions of the appellant No, 1. Strangely enough such a statement does not find place in the money order coupons which in the ordinary course should have been mentioned in it. The appellants have denied issuing such instructions on telephone, and therefore, at best it can be said that the respondent had sent the money orders voluntarily towards payment or rent, and not under the instructions of the appellant No, 1. From the evidence of the respondent it appears that the rent for the months of January to March, was remitted on 24-4-1974 and thereafter in May, 1974 the respondent filed an application for deposit of rent and started depositing rent in Court. The respondent's witness has stated that he has regularly deposited rent in Court. This statement does not seem to have been challenged. In the circumstances it can be concluded that after remittance by money order the respondent has regularly deposited rent in Court and there is no default in payment of rent during the period rent was deposited. It is now to be considered whether any default has been committed by the respondent by adopting the aforementioned mode of payment of rent for the period January, 1974 to March, 1974. 6. Mr. Naik the learned counsel for the appellant has contended that as the rent was payable on first of every month, the respondent while remitting the rent from January to March, on April 24, 1974, has committed default. On the other hand Mr. Memon has contended that the lease agreement had expired, and therefore, the terms and conditions of that agreement were not available and the respondent could have paid the rent within 60 days from the date when the rent became due. Calculating from this point of view, the rent for the month of January, should have been paid on 1st April, 1974. The rent for February, should have been paid.By 29th April, 1974. Therefore, there is a clear default in respect of payment of rent for the month of January, 1974. In order to meet this contention Mr. Mushtaq Memon has submitted that as the appellant No, 1 was collecting rent in lump sum whenever he used to come to Karachi., the delay should not be treated as a wilful default, and further that as after withdrawing rent the appellants have remained silent for about three years without taking any action, they have waived the default committed by the respondent. The tenant is obliged to pay rent to the landlord every month. Payment of rent in lump sum is not envisaged by the Sind Urban Rent) Restriction Ordinance, 1959, or Sind Rented Premises Ordinance, 1979. Reference can be made to Abdul Rashid v. Saleh Muhammad (1), where repelling the contention that the rent was paid periodically after 3/4 months and therefore, a practice had developed to pay the rent in this manner it was held that the parties cannot contract out of the provision of law i. e. West Pakistan Rent Restriction Ordinance, 1959. Nor a practice can be pleaded contrary to the provisions of law. It was further observed that "the mere fact that a landlord accepts a delayed payment of rent by the tenant on number of occasions, cannot be said to have given rise to any practice whit-ling down the requirement of law, that the rent has to be paid by the tenant by 15th of every month". In S. Riaz Ali v. Shabbir Ahmad Khan (2), it was held a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease and moreover, the receipt of rent by the landlord for several months at a time showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent. Again in Alima v. Mrs. Amir All (3), following Dr. Syed Waris Ali Trimzi's case (4), it was held that the so-called landlord's practice of realizing rent at intervals could not condone the default. The rule therefore, is that the tenant is bound to pay rent as provided by the
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Urban Rent Restriction Ordinance, and a party cannot contract out of it. If the landlord accepts the rent in lump sum and does not choose to take any action for delayed payment he merely condones the default, but does not change the obligation cast under the law, In the light of these principles it has to be considered whether the respondent has (1) 1980 SCMR 506 (2) 1971 SCMR 598 (3) P L t) 1984 SC 32 (4) 1980 SCMR 601 committed any default. After the money order remitted on 24-4-1973 was returned, the respondent filed a Miscellaneous Application on 29-5-1974 seeking permission of the Controller to deposit the rent in Court. The Controller after issuing notice to the appellant No, 1 granted permission on 20th August, 1974. On 23-8-1974 the respondent deposited Rs, 12,000 as mentioned in the receipt Exh. 0/8. The learned counsel for the respondent has filed certified copy ofeth,e proceedings of Miscellaneous Case No, 1359 of 1974 from which it seems that on 31-7-1974 the appellant had moved an application for withdrawal of rent. The Nazir had reported that Rs, 3,000 were deposited. This shows that this amount was deposited even before order dated 20-8-1974 was passed. Be that as it may, the fact remains that the appellant was allowed to withdraw Rs, 3,000 on 31-8-1974. 7. In the facts and circumstances, as stated above the respondent has to explain about the default in payment of rent for January, 1974, which even according to the learned counsel for the respondent should have been paid by 1st April, 1974. The first money order was sent on 24-4-1974, therefore, there is default in payment of rent by 23 days. The learned counsel for the respondent contends that in such cases where the rent has been paid regularly or that for previous months the landlord has not complained about the payment, if there is a default of 23 days it is too technical to be termed as wilful default, and discretion should be exercised in favour of the tenant. 8. Section 13 confers a discretion on the Controller to refuse ejectment in cases where default has been committed. This discretion has to be exercised judicially and not arbitrarily, by weighing the evidence of both the parties, and not on whims and caprices. There should be well founded reason for exercising discretion. Mere hardship to tenant cannot be a ground for exercise of discretion. By exercising the diScretion an equitable relief is granted to the tenant, therefore, any contumacious conduct or lack of bona fides on the part of the tenant may disentitle him to ask for such discretionary relief. The law permits a tenant to pay rent within fifteen days from the date fixed under an agreement for payment of rent, and in the absence of an agreement, within sixty days from the period for which the rent is payable. This period of fifteen and sixty days is a grace period during which rent must be paid unless the tenant is prevented due to reasons beyond his control or misconduct of the landlord. If the rent has not been paid within the grace period then delay should be explained. It will not be enough to say that there is a delay of few days and, therefore, discretion should be exercised in his favour. The respondent has explained the delay by stating that the appellant used to collect rent in lump sum and that money order was sent to him. The appellants have denied that there was any practice to collect rent in lump sum. Except a receipt for payment of rent for 4 months which has been denied by the appellants, no document has been produced to establish this practice. Mere words of the respondent and one receipt cannot prove such practice. A mode of payment can be termed as 'practice' if it is uniform, consistent, continuous and accepted by the other side without objection or change for a long period. Reference can be made to Koonch Amna v. Mst. Zubaida (1). In the present case, the respondent has failed to establish any practice. Even otherwise as laid down by the Supreme Court in Abdul Rashid v. Saleh Muhammad (2), (i) p L D 1983 Kar. 584 (2) 1980 SCMR 506 S. Riaz Ali v. Shabbir Ahmed Khan (1), Muhammad Hasan & Co. v. Mahmood Ahmed Khan (2), Syed Waris Ali Trimzi v. Mst. Liaquat Begum (3) and Mrs. Alima Ahmed v. Amir Ali (4), a tenant cannot plead practice of payment of rent in lump sum which is contrary to law and ask for exercise of
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discretion in his favour on that basis. Unless it is established by the tenant that by accepting lump sum payment the landlord has condoned or waived the default, mere practice even if proved, may not wipe off the default. 9. The respondent defaulted in payment of rent for 23 days. Mr. Memon has referred to Abco International Corporation v. Mrs. Salima Hashim Raza Second Rent Appeal No, 37 of 1981 in which it was observed that where there was a default of 5 days in payment of rent of one month discretion should be exercised in favour of the tenant, as in the past he had been regular in payment of rent. It seems that in this case attention of the learned Court was not invited to Taiyaba Khatoon v. Muhammad Fariduddin (5) where after an exhaustive discussion it was observed :- "In this case now under consideration we should note that the word `default' does not occur in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and the days of grace for payment or tendering rent which may become due by agreement or otherwise are fixed, therefore, if it is duly proved that rent has not been paid or tendered in terms of clause (i) of subsection (2) of section 13 read with explanation (b) to the subsection the Rent Controller cannot excuse it, merely because in terms of the law failure took place only once. This would amount to introducing in the legislation some gracious-failure in addition to the days of grace provided in it for paying or tendering rent." With due respect to the observation in Abco International Corporation case, I am in respectful agreement with the view expressed in Tayabba Khatoon's case. In my humble view merely the fact that during a long. Period of tenancy the tenant has defaulted in payment of rent by few days only will not warrant exercise of discretion in his favour. Besides this() fact the tenant should also establish that the default was due to reasons beyond his control or such circumstances which may justify delayed payment. If the default is avoidable or due to the negligence of the tenant in performance of his statutory duty then it cannot be excused. But if it is unavoidable discretion may-be exercised in favour of the tenant. It is thus clear that the respondent committed default in payment of rent for January, P 1974 and taking into consideration the facts of this case discretion cannot be exercised in favour of the respondent. 10. Mr. Memon then contended that the default if any has been waived by the appellants. In this regard he has pointed out to the facts that immediately on deposit of rent the appellants withdrew it in 1974 and thereafter, remained silent over the matter for about 3 years, and filed ejectment application in respect of the period for which rent was deposited and withdrawn by the appellant. It may be mentioned here that. In Miscellaneous Rent Case No, 1359/74, the appellant applied for withdrawal of Rs, 3.000 which was allowed on 31-8-1977. From the receipt filed by the respondent Exh. 0/8 it seems that on 23-8-1974 Rs, 12,000 were deposited (1).1971 SCMR 598 " (2) 1975 SCMR 355 (3) 1980 SCMR 601 (4) PLD 1984 SC 32 (5) PLD 1971 Kar. 747 ' The question arises, whether the appellant has waived the default committed in payment of rent for January, 1974. In this regard the learned counsel has referred to Muhammad Ahmad v. Mrs. Qamar Hussain Shah (1), where it was held that "once the tenant has committed default by not paying or tendering rent within the prescribed period, he would be liable to be rejected notwithstanding subsequent payment of the arrears of rent unless he can make out a case of waiver on the part of the landlord". It was further observed that "the term waiver implies the intentional relinquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce right and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and enforcement of right". Reference has been made to Dr. Abdul Rashid v. Mst. Nafisa (2) where rent for February, 1978 was remitted by money order and accepted by the landlord in the first week of October, 1978 and without giving any notice that
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default has been committed the ejectment application was filed on 21-11-1978, it was held as follows :- "If rent had been tendered in lump sum and the same had been accepted by the landlady before the tiling of ejectment application it will be presumed that for the period for which the rent had been accepted the default committed by the tenant has been waived by the landlord unless a foundation is laid in the case of the appellant that the rent had not been accepted without any protest, objection or reservation." 11. Waiver is a conscious and intentional relinquishment of a known right which can also be inferred from the conduct of a party. Where a Q party…
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