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Petitioner: JAN MUHAMMAD VS Respondent: ABDUL GHAFFAR
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: JAN MUHAMMAD vs ABDUL GHAFFAR Case No.: First Rent Appeal No,10 of 1988 Date of Judgment:1991-04-04 Reported As: 1991 MLD 1631 Result: Case remanded
JUDGMENT
JUDGMENT ' This is a landlord's appeal. The relevant ejectment application was based on the grounds of nuisance and default. The learned Controller has found against the appellant-landlord on both the said grounds. ' In appeal the respondent has been served through publication. However, I was not satisfied with the preceding bailiff's reports, pertaining to the attempted personal service on the respondent. Thus, relevantly, with reference to the pre-publication process issued on 19-3-1988 for 21-4-1988 the report, dated 20-4-1988, is that such process was contumaciously refused and this was done in the presence of the appellant's representative. Somehow, two witnesses namely, Abdul Karim and Wajid Khan also affixed their signatures on the process though the occasion for their presence at the time of offer of service does not appear in the narrative, they Seemingly having materialised after the purported refusal. No addresses of these witnesses either are indicated on the process or in the report. Apparently, such attempt, itself curiously dated as early as 7-4-1988 (bailiff report being of 20-4-1988) was made the basis for an application under Order V, rule 20, C.P.C. And the tenant was served through publication. Policy of law being that matters should preferably be decided in the presence of all parties rather than in their absence, I, in the circumstances detailed, on 19-2-1991, ordered issuance of Court motion notice to the respondent but that, also through bailiff, was, reportedly, refused. Even though there is no apparent explanation as to why a person would refuse the process, consequences of refusal being manifest, such is the state of the record and the case has to be proceeded with in the absence of the respondent. ' I have, accordingly, heard Mr. K.B. Bhutto at length. While there is an allegation in the ejectment application that the respondent had broken open the lock of the terrace in the disputed building
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and occupied it, that ground has neither been pressed here nor before learned Controller, apparently because unauthorised occupation, if any, is redressable only in the Court of Civil jurisdiction. Even otherwise, there seems to be next to no evidence on the point. ' As to the matter of nuisance, that ground is based on an incident dated 22-1-1987, allegedly, involving assault by the respondent on the person of the appellant/landlord, It is urged that such single incident suffices to claim eviction relative to nuisance.This is an over simplification of an otherwise complex concept. The constitute nuisance, as contemplated in section 15(2)(v) of the Sindh Rented Premises Ordinance, the offensive, annoying or injurious conduct ("activities") of the tenant, tantamounting to nuisance, should be such which, upon the language employed, is not restricted to a single act of commission or omission, that has both exhausted itself and its consequence. Ordinarily and in principle, there has to be continuity either in the act(s) or the consequence(s) or both. If not, there must, at the very least be a visible pattern, for hardly in any other manner may the necessary ingredient of "activities" be found in place. Further, nuisance has a nexus with activities prejudicial to the neighbours of the offending tenant, since liability for eviction on the ground of nuisance arises only if "the tenant has indulged in such activities as are causing nuisance to the neighbours". Nasreen Rashid V. Asghari Begum, PLD 1982 SC 453, and Zakia v. Saleem Ahmed 1984 MLD 786, if closely examined, do not lay down any different propositions. The first is a decision, which construes the word "buildings" (in plural), as it recurs in section 13(2)(iv) of the Rent Restriction Ordinance, VI of 1959, and, upon a reference to the General Clauses Act, holds that a "plural" includes a "singular". This case merely refers to an Indian enunciation concerning nuisance. No single act was, however, involved there. In such case under report nuisance was alleged on the basis of keeping dogs in an offensive or dangerous style together with an assault on the person of the landlady, who was putting up in the same building Whereas the Indian case pertained to nuisance arising from "acts of ill-treating, abusing and beating the landlord, who happened to be an old lady and who is residing in a part of the house...." The observation of the.Supreme Court viz. "being manhandled by one's own tenant certainly constitutes a greater nuisance within the meaning of the aforementioned provisions of the Rent Ordinance" cannot thus be taken out of context. A precedent, primarily, is an authority on its own facts. To this, where the Supreme Court is concerned, is to be added a caution: even obiter of the honourable Judges of that Court is binding. This, however, is no licence to take out a portion from an otherwise binding judgment and to base conclusions in a completely out of context manner. In re Zakia ibid the Supreme Court view is repeated. As already adverted to section 15(2)(v) ibid. Uses the word "activities", as an ingredient of nuisance of which the singular is "activity" and not a mere "act" meaning "quality, state or fact of being active" and that can hardly have any such limitation as urged. Direct authority on the point would be the interpretation of Saleem Akhtar, J., then in this Court, in Hashmi Begum V. A. Zohra, 1986 Civil 392, declaring that occasional and sporadic incidents, resulting in annoyance to the neighbours, cannot cause nuisance, and unless the same or similar incidents causing annoyance, danger or inconvenience are repeated. Obviously, none of these requisites are to be found in the case in hand. There is neither any repetition or continuity of assaults nor of the consequences thereof. Besides, as to the landlord's claim of being a neighbour the only evidence is that he occupies a shop in the building. No details as to proximity are supplied. Crucially, the alleged assault is said to have occurred because of a demand of rent, an essential attribute of relationship of landlord and tenant and had nothing to do with any neighbourly connection. Further, even with regard to the isolated incident of 22-1-1987 the landlord has failed to examine himself, leading to the presumption under Article 129, illustration(g), of Qanun-e- Shahadat, 1984, which postulates that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Not only such forbearance of the-landlord to step into the witness box on this question should lead to the
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invocation of Article 129, illustration(g), ibid. But also the fact that though, allegedly, an F.I.R. Was lodged relative to the aforesaid incident not even a copy thereof was produced let alone any annotation of the result concerning the same. In addition, the only witness on the subject was an employee of the landlord who, besides possibly being interested, did not even remember the period of the rental claim which, as stated, occasioned the alleged altercation. Such-like procedural requirements as to proof are material said Zahoorul Haq, J., In re: Zakia ibid. In this situation, it must be found that no case of nuisance was proved before the learned Controller, and findings on that issue do not appear to be open to any doubt. ' Taking up the question of default, the case of the landlord before the Controller was that the tenant had defaulted in the payment of rent from January, 1986 upto the date of filing of the ejectment application namely, February 2, 1987. In proof, the landlord submitted the affidavit-in- evidence of his attorney, Anwar Shah, (constituted landlord's attorney on or about 17-1-1987), together with the affidavit-in-evidence of one Muhammad, claiming to be an employee of the appellant. The deposition of the employee, however, is confined to the plea of nuisance alone and is inconsequential as to default. In so far as the attorney is concerned, he acknowledged, (in cross- examination), that he was personally not aware of any facts pertaining to the case prior to the date of his authorisation and based his testimony on what he was orally informed about on the subject by the landlord. He also admitted that the landlord had not given him any documents in support of the case. As regards the previous receipt for payment of a year's rent from January, 1985 to December, 1985, such witness had undertaken in the affidavit to produce the original (ostensibly the counterfoil) at the time of offering himself formally as a witness in the case. However, no originals were produced or sought to be produced. Reverting to Qanun-e-Shahadat, 1984, such enactment applied to all judicial and quasi-judicial proceedings and in consonance with the terms of that statute it is ordinarily necessary that documents, if tendered in evidence, should be in original rather than in the shape of true or photostat copies. However, Mr. K.B. Bhutto has contended that because copy of the relevant receipt, which is Annexure 'C' to the affidavit-in- evidence of Anwar Shah Attorney, has not been disputed, the same is not open to any technical objection at this stage. Still, Mr. K.B. Bhutto very fairly acknowledges that this document has not even been exhibited by the learned Controller, an incident necessary to forestall an objection as to admissibility. Add to this the fact that the witness having himself undertaken to produce the original but, in actual fact, not doing so, no occasion whatsoever, I think, arose for the learned counsel of the respondent to question the same. In the result, the document was not proved. Furthermore, when the entire evidence of the attorney was based on hearsay, such testimony can be none else but self-defeating. Learned counsel for the appellant has attempted to meet these objections by pointing out that default is a negative fact and, in the absence of documentary material, once the landlord affirms the default on oath the burden shifts on the tenant, which in the case remained undischarged, the tenant not even offering himself as a witness. In support are cited Allandin v. Habib PLD 1982 SC 465, Abdul Rashid v. Mahmood Elahi Farooqi 1985 CLC 968, and Muhammad Umar Hasan v. Tahziba Khatoon 1986 CLC 1565. There can be no cavil with the legal proposition; but this turned out to be a case of no evidence. The landlord never examined himself, the only relevant witness he put forward had no personal knowledge of the matter and the single document proferred in support was not proved. In this situation, the learned Controller could have been justified in refusing ejectment. ' Here, it will be totally unfair not to make mention of an alternative plea urged on behalf of the appellant, though, for the first time in this Court. Mr. K.B. Bhutto has referred me to a number of reported cases, laying down that even if default had occurred during the pendency of a rent case such can be taken notice of and on this ground, as well, ejectment can be ordered in the instant case. In context are cited Basit Yar Khan v. Pak Craft Emporium 1986 CLC 555, Syed Ashraf Ali v. Ali
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Muhammad Khan 1986 CLC 735, Saheb Jan v. Muhammad Aslam 1986 CLC 1878, Muhammad Ally Ahmed v. Abdul Hameed 1987 CLC 492, Imam Din v. Tajamul Hussain 1989 CLC 462 and Shaliq Ahmed v. Sakhawat Hussain 1989 CLC 1116. These judgments while such do not, invariably lay down any sweeping proposition, in turn, either expressly or otherwise, proceed inter alia upon Saboo Mal v. Kikaram 1973 SCMR 185, Amina Begum v. Ghulam Dastagir PLD 1978 SC 220, Raj Muhammad v. Muhammad Zareen 1980 SCMR 339, and Azhar Imam Rizvi v. Salima Khatoon 1985 SCMR 24, the last of which alone has specifically been cited by the learned counsel. In Saboomal's case, the concept of default in payment of rent, as regards properties, devolving inter vivos or changing hands in any other contemplated manner, was treated by the Supreme Court in these words:-- "The language employed in section 13-A of the Ordinance makes it abundantly clear that it only deals with one situation namely, the question of default in the payment of rent. If the prescribed notice is not given by the transferee landlord then the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (1) of subsection (2) of section 13 of the Ordinance and as such default will arise only if the rent is not paid within thirty days from the date of the notice." ' In the case of Amina Bcgum, which pertained to a property transferred under the Displaced Persons (Compensation & Rehabilitation) Act, 1958, requisite notice under section 30 of such Act was given to the tenant and subsequently ejectment was sought on the grounds of default, impairment of the value or utility of the rented premises and bona fide requirement to reconstruct the same. The Controller as well as the Appellate Authority allowed and upheld ejectment on the ground of reconstruction only. In the High Court the tenants, for the first time, raised an objection that they were entitled to a statutory protection against ejectment for six years, as envisaged in section 30 of the above-referred statute and, therefore, the Controller ab initio, had no jurisdiction to entertain and proceed with the ejectment petition, such having been filed only a little over one year after service of due notice under the cited provision. A learned Judge of Lahore High Court in Chambers opined that even if the tenants had any such protection it had ended by efflux of time during the pendency of the proceedings before the Controller, which had lingered on for more than six years, resulting in due maturing of the cause of action. The Supreme Court, in its turn, dismissed the leave petition. Muhammad Akram, J., who spoke for the Court, on an exhaustive examination of case-law, coming to the conclusion that a discretion vested in the Courts of law to exercise due powers to shorten litigation, to avoid multiplicity of proceedings, to do complete justice between the parties and mould the relief according to altered circumstances in the larger interests of justice. Accordingly, it was found that the Controller and the appellate forums were not precluded to allow any bona fide amendments and take note of subsequent events to suitably mould relife on the basis of altered circumstances, moreso, because the statutory protection had elapsed during the pendency of proceedings and the case even if allowed to commence afresh after 11 years of litigation, result on merits was not likely to be different. Re Mst. Amina Begum was followed by a Full Bench enunciation of the Supreme Court in Ibrahim v. Rchmatullah 1985 SC M R 241, Shafiur Rehman, J., inter alia, spelling out the law thus: "The general law is that the disputes arc decided by reference to the date of the institution and decision of the suit and the rights of the parties as then with the exception that every Court has an inherent power to adopt methods with a view to avoid multiplicity of proceedings, to shorten litigation, to do complete justice between the parties and mould relief according to altered circumstances in the larger interest of justice. In addition to these arc the cases of the compulsive effect of change in law affecting either the jurisdiction of the Court or the relief to be granted to the parties." (page 245 of the report). In Raj Muhammad v. Muhammad Zareen 1980 SCMR 339, Muhammad Afzal Zullah, J., as he then was, while dismissing the tenant's petition for Leave applied the same principles, as in the case of Mst. Amina Bcgum and others to a requirement of notice under section 30 of the Displaced Persons (Compensation and
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Rehabilitation) Act, 1958, observing that even if the landlord had hastened in filing the ejectment suit before the expiry of the statutory period provided for such notices no useful purpose would have been served by non-suiting the landlord and requiring him to file a fresh one as that course would not advance the interest of justice, result on merits not likely to be any different. However, E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536, laying down that a tenant could not forego or opt out of the statutory protection accorded by section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, was not dissented from and, plausibly, to such extent as it is distinguishable on subsequent authority is still good law. In Azhar Alam v. Salim Khatoon 1985 SCMR 24, the question again pertained to section 13-A of the erstwhile West Pakistan Urban Rent Restriction Ordinance, that provision requiring a registered A.D. Notice on devolution of property to the tenant by the successor landlord in order to enforce default in payment of rent. The facts were somewhat peculiar. An ejectment application was filed by the purchaser-landlady on the ground of default in payment of rent from July, 1978 to November, 1978, the application itself being submitted in November, 1978. The Controller found that while there was relationship of landlord and tenant no notice under section 13-A of the Ordinance was served on the tenant. The landlady appealed and deposit of rent was ordered at the level of the High Court and duly made. However, in the meantime, on 3-12-1980 the successor landlady under reference filed another ejectment application on the ground of default from July, 1978 upto December, 1980. Similar objection under section 13-A of the Ordinance was taken but eviction was ordered on 31-5-1982. Appeal in the High Court failed and the matter went to the Supreme Court. Muhammad Afzal Zullah, J., who authored the judgment of the Court in the said second set of proceedings drew upon the admission of the tenant in his written statement that he came to know about the sale to the then landlady for the first time when he was served with notice and copy of the ejectment application in the previous rent case and on the further fact that his learned counsel was unable to deny that the petitioner- tenant had received the notice and copy of the ejectment application through registered post, a requirement of section 13-A ibid. It was observed that the issue of relationship of landlord and tenant in the context of the previous rent case, was decided by the Controller in favour of the successor landlady in October, 1979. In such circumstances it was held that failure of the tenant to offer the rent even after October, 1979, was without justification, receipt of the copy of the ejectment application and knowledge gained thereby constituting due notice and substantial compliance with section 13-A of the Ordinance of 1959. On the strength of the referred authorities from the Supreme Court jurisdiction, it is difficult to subscribe to the broad proposition, if any, in the cited High Court decisions that a dependent lite absence of payment of rent by a tenant can ipso facto be made the basis of an order of eviction albeit continuing obligations to pay the accruing dues. In the first place, all things being equal, such an order of ejectment in relation of such default can not follow automatically. There has to be a proper procedure which would always require to be followed, as has been indicated in some of relevant case-law and that includes even framing of specific issues in the case, such as is indicated from the judgment of my learned brother Abdul Rahim Kazi, J., reported in Shafiq Ahmed v.. Sakhawat Hussain, 1989 CLC 1116. Even In re: Azhar Imam the default, which was willfully occasioned during the pendency of the previous rent case, was entertained only in the subsequent one, ensuring the observance and compliance of due process. Secondly, such a question, again all else being in place, in essence and on principle, ought essentially to be raised in the Court of first instance so that, if relevant and if permissible, necessary foundation on facts is laid by the contestants for due exercise. This is so as mere absence of payment of the rental use does not of itself constitute a failure or default. An element of volition or a agree of wilfulness in the context of failure seems to be of essence in the concept. Further, there can and may be extenuating circumstances and where the ordinance of 1959, as amended, still applies a pointed discretion also
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vests in the controller, all of which would seem to imply an obligation to raise the issue adequately and upon due notice. These elements were manifestly recognized In re: Amina Begum when the requirement of amendment was specifically emphasized relative to any altered circumstances necessitating re-molding of relief. Thirdly, as consistently opined in the Supreme Court, subsequent events and be taken note of essentially in the interest of the ends of justice. Apart from 11 else and even if the argument was otherwise valid none of these elements, ex ace, are available in the present case. Last but not the least, once eviction roceedings are set into motion the relations between the parties can hardly be visualized to be such as to anticipate a smooth and orderly tender or acceptance of rents and it is for this reason that the various Rent Laws expressly, envisage orders of deposit once eviction proceedings are launched and arc pending. This aspect, as regards pendent lite default, can never be overemphasized. It would be of relevance to consider such provisions in the current Rent Laws:-- ' Ordinance VI of 1959, as amended and adopted in the Punjab, Balochistan and N.-W.F.P. "Section 13.--- (1)................................................................................ (2) .................................................................................................. (3) .................................................................................................. (4) .................................................................................................. (5) ..................................................................................................... (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent/due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of eachimonth the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order,- then if he is petitioner his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. ' The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant. (7) (8) ' Cantonments Rent Restriction Act (X1 of 1963): "Section 17.--- (1).................................................................................. (2) (3) (4) (5) (6) (7) ....................................................................................................... (8) On the first hearing of proceedings under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately. (9) -------------------------------------- (10) --------------------------------------
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(11) -------------------------------------- ' Sindh Rented Premises Ordinance, (XVII of 1979): "Section 16. Arrears of rent.-- (1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case. (2)------------------------------ (3)---------------------------- ' Azad Jammu & Kashmir Rent Restriction…
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