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Petitioner: S. M. HAYAT VS Respondent: COMMODORE (REID.) IKRAMUL HAQ MALIK AND ANOTHER
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title: S. M. HAYAT vs COMMODORE (REID.) IKRAMUL HAQ MALIK AND ANOTHER Case No.: First Rent Appeal No, 618 of 1981 Date of Judgment:1984-04-11 Reported As: 1984 CLC 3176 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' Rent Case No, 4050 of 1978 was filed by the two respondents namely Ikramul Haq Malik (respondent No, I) and New Clifton Apartments Limited (respondent No, 2 for the eviction of the appellant, S. M. Hayat, from flat No, 8 in the building on Plot No, 93, Clifton, Karachi, on the ground of personal requirement of respondent No, 1 and on the ground of default in the payment of rent. In the ejectment application it was averred that the two respondents are the owners/landlords of the flat in question and the appellant is a tenant of the flat at a monthly rent of Rs, 800 exclusive of other charges, which are also payable by the appellant. Paras. 2, 3 and 4 of the ejectment application relate to the averments made in the ejectment application about the personal requirement of respondent No, 1, Ikramul Haq and these paragraphs are reproduced hereinbelow : (2) "That the applicant-1 requires the said flat reasonably and bona fide for his personal use and occupation as he owns no other accommodation anywhere in Pakistan. He is retired Naval Officer and was occupying official house which was provided to him by Port Muhammad Bin Qasim Authority, of which Authority he was the Chairman till 26th June, 1978. He has to vacate the same by 1st September, 1978. (3) That the education and marriages of applicant No, l's children are held up and that the family of the applicant-1 are unable to return home from abroad due to lack of accommodation and therefore, the applicant is entitled to get vacated the said flat from the opponent. (4) That the applicant-1 called upon the opponent personally and then through Mr. Qamar Abbas, Bar-at-Law and finally by a letter to vacate the said flat but opponent has not vacated and refused to accept the letter, hence this application."
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' It may be observed here that although in para. 6 of the ejectment application a ground had been taken about the default in the payment of rent by the appellant but the case proceeded before the Rent Controller on the ground of personal requirement only for the reasons mentioned later in this judgment. ' A written statement was filed by the appellant and several preliminary objections were taken. It was averred that respondent No, 1 was a stranger to the flat in question and that appellant's wife, Mrs. Jehan Afroze, was the constituent party of respondent No, 2 company, which was formed for the purpose of purchasing the various flats in the building in question and that she had paid to respondent No, 2 company a sum of Rs, 15,000 towards the shares of the respondent No, 2 company and earnest money for the purchase of the flat in question and, therefore, respondent No, 2 could not put up title adverse to the appellant and his wife. It was further averred that there was no relationship of landlord and tenant between the appellant and respondent No, 1. Objections were also taken to the maintainability of the ejectment application on the ground that the application was barred by principles of res judicata, as on the same grounds previous rent application No, 3103 of 1974 stood dismissed. It was also averred that neither respondent No, 1 nor respondent No, 2 served the appellant with any notice under section 13-A of the Rent Restriction Ordinance, 1959. On merits it was the case of the appellant that he was the tenant in respondent of the flat in question which belonged to Shamsuddin, Shirin Khanoo and Iqbal Meghani since 15th July, 1974 at a monthly rent of Rs, 800 inclusive of other charges. The allegations about default and personal requirement were denied. The following plea was also taken as a further plea by the appellant in his written statement : "That the opponent is the tenant in the said flat that belonged to (I) Shamsuddin, (2) Shirin Khanoo and (3) Iqbal Meghani since 15th July, 1974. The wife of the opponent, Mrs. Jehan Afroze, being in possession of the said flat alongwith the opponent and being constituent of Applicant 2 company abovenamed and having paid the sum of Rs, 15,000 (rupees fifteen thousand) to applicant No, 2 has acquired ownership rights in and over the said flat since 22nd October, 1977. Photostat copies of Agreement, dated 22nd October, 1977 payment receipt certificate, dated 21st November, 1978 and receipt for Rs, 5,000 are annexed and respectively marked as 'A', `A-1' and 'A-2'." ' The preliminary issue was raised about the relationship of landlord and tenant between the parties. On this issue, evidence was recorded by the Rent Controller. The respondents examined Tahir Ali Tayyabi as Exh. 4 and closed their side. The appellant examined himself as Exh. 12 and one witness A. Aziz, a bank officer of United Bank Limited as Exh. 14. By order, dated 3rd February, 1980 the Rent Controller decided the preliminary issue in favour of the respondents holding that relationship of land lord and tenant existed between the parties and he further observed in the order, dated 3rd February, 1980 that as admittedly neither the previous owners nor the present owners had given any notice to the appellant informing him about the change of ownership, there could be no question of default having been committed by the appellant in the payment of rent and the case could not proceed against the appellant on the ground of default. The Rent Controller, therefore, directed that the case would proceed on the issue of personal requirement only. After the preliminary issue had been decided, and the stage was reached for recording of further evidence, the 1959 Rent Ordinance had already stood repealed and therefore, under the 1979 Rent Ordinance, affidavits-in-evidence of the following four persons were filed on behalf of the respondents : (i) Ikramul Haq Malik-respondent No, 1. (ii) Asif Ikram-son of respondent No, 1. (iii) Khawar Ikram-son of respondent No, 1. (iv) Qamrul Islam Abbas -Attorney of respondent No, 1.
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' Respondent No, 1 did not appear for cross-examination but the other three witnesses on his behalf appeared and they were duly cross-examined on behalf of the appellant. The appellant also filed his 'affidavit-in-evidence and he was cross-examined on behalf of the respondents. By the impugned order, dated 17th October, 1981 the learned Rent Controller allowed the ejectment application and ordered the ejectment of the appellant from the flat in question. The ejectment application was allowed on the ground of personal requirement of the respondent No, 1 and his sons. Being aggrieved, the appellant has filed this first rent appeal under section 21 of the 1979 Rent Ordinance. I have heard at length arguments of Mr. Usman Ghani Rashid, learned counsel for the appellant and Mr. Muhammad Sharif, learned counsel for the respondents. 2. Before referring to the contentions raised on behalf of the parties by the two learned counsel, reference may be made here to two agreements both, dated 22nd October, 1977 on which agreements reliance has been placed by both the learned counsel. One agreement is an Agreement. Of Sale entered between Iqbal Maghani and 3 others described in the said agreement as "Vendors" and 13 persons including Jehan Afroz, wife of the appellant, described as "Vendees" and it is mentioned in the Agreement that the Vendees had agreed to purchase the property, being the land bearing Survey No, 93 in Clifton, Karachi with two multi-storey buildings constructed thereon containing residential flats for a lump sum price of Rs, 10 Lacs to be paid in the manner provided in the Agreement. As regards Mst. Jehan Afroze, wife of the appellant, it is mentioned in the agreement that she had agreed to purchase flat No, 8 for Rs, 90,000. It is further recorded that all the 13 Vendees bad paid in all Rs, 1,00,000 as earnest money out of which Rs, 1,0,000 was paid by Mst. Jehan Afroz for Flat No, 8. The balance consideration of Rs, 9,00,000 was payable at the time of registration of the sale-deed. It was further provided that Vendees' remaining amounts of the consideration was payable to the Vendors on or before 30th November, 1977 which included Rs, 80,000 as the balance consideration for Flat No, 8 payable by the wife of the appellant. By clause 5 it was agreed by the parties that time was the essence of the agreement and the sale-deed was to be registered on or before 30th November, 1979 and in clause 6 it was mentioned that if for any reason the Vendees were unable to complete the sale by 30th November, 1979, the Vendors shall give to the Vendees an additional period of one month and the Vendees shall get registered the sale-deed on or before 31st December, 1977. In clause 7 of the Agreement of Sale it was specifically agreed that if any of the Vendees were unable to produce balance of their respective shares of purchase price by 31st December, 1977 the transaction of sale was to proceed as follows :- "(a) If the total sale price exclusive of deposit paid under clause 2 above produced by remaining Vendees amounts to a total of Rs, 7,50,000 (Rupees seven lac fifty thousand only) the sale-deed shall be registered by substitution for all the defaulting Vendees the name of Vendors attorney or his nominee in which case the Vendors shall be entitled to forfeit the deposit paid by such defaulting Vendees in clause 2 hereof. In such event the Vendors' attorney or his nominee shall also take over all the rights and obligations of the defaulting Vendees under the Promotors' agreement, dated 22nd October, 1977 entered into between them. (b) If the total Sale price inclusive of deposit paid under clause 2 hereof produced by the remaining Vendees amounts to less than Rs, 7,50,000 (Rupees Seven Lac fifty thousand only) and the remaining Vendees or their nominees are not prepared to purchase the fiat of the defaulting Vendees the Vendors shall have the option either to proceed as provided in sub-clause (a) hereinabove or to cancel this agreement in which case the Vendors shall be entitled to forfeit the deposit of all the defaulting Vendees but the deposit of all Vendees who have produced the balance of their share of purchase price shall be refunded to such Vendees by the Vendors." ' By clause 9 of this Agreement of Sale it was agreed that where flats were not rented out to their respective Vendees, such Vendees shall be-entitled to receive rent from the existing tenants from the date of registration of the conveyance deed. Clause 11 of the Agreement of Sale is as follows :-
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"It is hereby agreed that the Vendees are intending to form themselves into an incorporated company in which event the Vendors shall transfer the property to the said Company or to any other body nominated by the Vendors." ' The other agreement also dated 22nd October, 1977 is the agreement between the 13 aforesaid Vendees for formation of a company. In this Agreement the parties described themselves as "Promotors" and wife of the appellant is shown as promotor No, 8. It is mentioned in this Promotors' Agreement that the promotors have entered into the Agreement of Sale for the purchase of property on the terms and conditions mentioned in the Agreement of Sale and that the promotors have agreed to form themselves into a private company under the name and style of "New Clifton Apartments Limited" and have the said property conveyed to the said Company when incorporated. The authorised capital of the Company was agreed to be Rs, 11,00,000, divided into 11,000 shares of Rs, 100 each, in 13 classes and class No, 8 comprises 1,000 shares and it was stated that promotor No, 8 (wife of the appellant) had paid Rs, 5,000 to M/s. Asif Fancy and Tahir Ali Tayebi (referred to in the Agreement as "the Organisers") a sum of Rs, 5,000 by way of deposit for the fulfilment of the obligations under the Agreement. It was also agreed that the promotors would subscribe to the shares mentioned against each promotor in clause 3 of the Agreement by paying the full value of his or her subscription to the Organisers before 25th November, 1977. Wife of the appellant was required to subscribe to 1,000 shares of class No, 8. It was further agreed that the respective deposits paid by the promotors as vendees under the Sale Agreement and under clause 2 of Promotor's Agreement were to be appropriated towards their respective subscriptions for acquiring the shares. Clauses 5 and 8 of the Promotors' Agreement are reproduced here :- "5. The property aforesaid consists of a main building and an annexe. There are eight large flats numbered 1 to 8 in the main building each of which has the use of one servant's quarter and one garage located in the annexe. There are five small flats located in the annexe and numbered 9 to 13. The small flats do not have the use of any servant's quarter or the garage. It is hereby agreed that each Promotor shall on taking up all the shares in his respective class and on the said property being conveyed to the Company, have the exclusive use of the flat bearing the same number as the class of shares subscribed by him together with all the amenities that go with it as on the date of this agreement. Where a flat is not in personal occupation of the respective Promotor and person holding the tenancy of such flat shall on the day the property is conveyed to the Company, become the tenant of the shareholder of the respective class of shares. The ninth servant's quarter two store rooms on the ground floor and one store room on the terrace of the annexe and two sheds in the compound shall remain in possession of the Company for such use as the Company may decide. 8. It is hereby further expressly agreed that in the event of any Pro-motor not paying on or before 25th November, 1977 his/her full subscription as provided in clause 3 hereof or the security deposit as provided in clause 10(b) hereof, the deposit paid by him/her under clause 2 hereof shall stand forfeited and the remaining Pro-motors shall have a right to substitute any other person in place of such defaulting Promotor. In any such event the defaulting Pro-motor shall be deemed to have assigned his/her rights under the said Sale Agreement in favour of such other person substituted by the remaining Promotors as aforesaid." 3. It is an admitted position that apart from the amount of Rs, 15,000 comprising Rs, 5,000 paid as deposit under the Promotor's Agreement and Rs, 10,000 paid as earnest money under the Agreement of Sale, no further payment was made by or on behalf of the wife of the appellant and she did not subscribe for 1,000 shares of class No, 8 by paying their value which she was required to do under the Promotors Agreement. It has also come in the evidence of the appellant that no request was made on behalf of the wife of the appellant for extension of time to make the payment. In the evidence of Tahir Ali (Exh. No, 4), witness of the respondent on the preliminary issue
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regarding the relationship of landlord and tenant, it is deposed that the wife of the appellant failed to make the payment in spite of requests made by him and Mr. Fancy, the Organisers under the Promotors' Agreement, and although the time was extended till 30th December, 1977 for payment she, failed to make the payment and, therefore, under the terms of the Promotors Agreement the former landlord's father, Muhammad Ali Maghani, took over Flat No, 8 and the sale of property was completed and then Muhammad Ali Maghani sold the flat in question to respondent No, I by transfer of the shares in the res pendent No, 2 company in the name of respondent No, 1 and copies of the relevant documents including the shares certificate were produced by the witness. He further stated that according to the terms of the Pro-motors Agreement and the Sale Agreement, the total amount of 'Rs, 15,000 paid by the wife of the appellant was forfeited. In his cross- examination the witness was asked whether he had given any written notice to the wife of the appellant to which the witness replied in negative. According to the witness, he had verbally informed the wife of the appellant about the possibility of forfeiture of the amount if she failed to make the payment. 4. Following contentions were raised by Mr. Usman Ghani Rashid, Advocate in his attack on the impugned judgment of ejectment :- In view of the payment of Rs, 15,000 by the wife of the appellant under the two Agreements, dated 22nd October, 1977 a cloud had been created over the title of the respondents and to clear the title the respondents should have gone to a Civil Court. Reliance had been placed by the learned counsel for the appellant/ tenant on the judgment of the Supreme Court in the case of Rehmatullah v. All Muhammad 1983 SCMR 1064. According to the learned counsel if any doubt is created on the title of the landlord, the Rent Controller is required to stay his hands in the ejectment application and could ask the landlord to get his title cleared in a Civil Court. ' Ejectment application filed in the instance case was incompetent as respondent No, 2, "New Clifton Apartments Limited" had filed a previous ejectment case No, 3103/74 which was withdrawn without permission to file another ejectment case and as such the ejectment application in question was barred by principles of res judicata. (c) Para. 1 of the ejectment application shows both the respondents to be the landlords and as such the respondents themselves are doubtful as to who amongst the two of them is the owner. According to the learned counsel, both the respondents could not be the owners of the flat in question. (d) There is no documentary evidence to establish that the respondent No, 2 had sold the property to respondent No, 1. (e) The appellant had been prejudiced in his defence on account of non-service of notice under section 13-A of the 1959 Rent Ordinance. ' Otherwise on merits also, case of personal requirement had not been established. 5. The first contention of the learned counsel for the appellant is based on the decision of. The Supreme Court in 1983 SCMR 1064. In that case the landlord had sought the eviction of the tenant from the premises in question on the ground of default in the payment of rent and the main issue that case was whether relationship of landlord and tenant existed between the parties. The tenant pleaded that the sale-deed and rent-note relied by the landlord were forged and fabricated. The Rent Controller, after recording evidence, came to the conclusion that the sale-deed as well as the rent-note could not be proved so as to determine the ownership of the landlord in respect of the disputed property and the relationship of landlord and tenant was not established and the ejectment application was dismissed. The landlord went in appeal which was allowed by the Additional District Judge but he observed while allowing the appeal that the tenant if so advised might file a civil suit for the cancellation of the sale-deed and rent-note. Thereupon, the tenant
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filed a Constitutional Petition before the Lahore High Court but the same was dismissed. The tenant went to the Supreme Court in appeal. Accept the appeal, Supreme Court of Pakistan set aside the orders of the first appellate authority and the High Court and restored the order of the Rent Controller dismissing the ejectment application. With all humility, I have ventured to record here the general principles which appear to have been laid down by the Supreme Court in 1983 SCMR 1064 :- (a) When the decision of the issue regarding relationship of landlord and tenant in an ejectment case under the 1959 Rent Restriction Ordinance depends solely on the question of the ownership and title to the property in question and it is not possible for the Rent Controller to decide the ejectment case without deciding the basic question involved regarding title, the Rent Controller can, in such a case, decide the question of title, and his decision on the question of title will not be tentative. If the Rent Controller in such a case gives a decision on title of the property without any reservations, such decision, subject to appeal and decision by higher Courts, will be res judicata on the question of title. (b) In a title involving case, to make out a case for ejectment, the landlord must first establish his title beyond reasonable doubt. If he is unable to do so, ejectment application must be dismissed. (c) In a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, the Rent Controller can refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court. (d) Even when the tenant has not succeeded before the Rent Controller to create the required "reasonable" doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Rent Controller can leave scope for a civil suit by the tenant by observing so, and where he fails to do so, the appellate or higher Court can do the same. (e) By operation of general law of res judicata, section 9 and section 12(2) of the Code of Civil Procedure and section 15(7) of the Rent Restriction Ordinance, 1959 together with the policy of Court to prevent multiplicity and repeat litigation, the Civil Court is barred from setting aside the orders of the Controller. 6. It may be mentioned here that while allowing the appeal, the Supreme Court in the case reported in 1983 SC MR 1064, made it clear that the decision by the Rea-Controller and the higher forums in that case shall not operate as a bar to the suit to be filed by the landlord in order to establish his title. Reasons for holding or have been given by the Supreme Court as follows :--- "Before concluding this judgment, it needs to be recapitulated that the decision by the Rent Controller and the appellate Court, the High Court and the present decision shall not operate as bar to the suit to be filed by the so-called landlord respondent in this case in order to establish the title. Section 15 (7) of the Rent Restriction Ordinance will not operate as a bar. In the order of the appellate Court and the judgment of the High Court there are observations for the filing of a civil suit in a Court of general jurisdiction. Subsection (7) bars the suit only if the said order or judgment is called in question in a civil suit. That situation would not arise in this case because they themselves have left open the possibility of filing the suit and the same, therefore, is an important part thereof. It also needs to be observed that as the law has been discussed in this case it has been possible for this Court to correlate the result of the discussion to the order/judgment passed in this case vis-a-vis the bar contained in subsection (7). In other case, however, the difficulty in this behalf can be obviated by the concerned party making prayer for and obtaining it as a part of the order from the Controller or of the judgment of the higher forum, in case a need for filing of a ,civil suit is genuinely and clearly visualized ; with the condition that the party concerned would in that eventuality have to take the definite position vis-a-vis the proceedings under the Rent
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Restriction Law before seeking the observation for raising the controversy regarding title in a civil Court. ' The bar contained in section 12 (2), C.P.C., would also not apply in the present case notwithstanding the fact that decisions rendered under the Rent Restriction Ordinance include judgments by three "Courts", namely, the District Judge, High Court and Supreme Court. The .Question to be agitated in the civil suit would not be relatable to the jurisdiction 'of the appellate Court or the High Court or this Court--rather it would be in pursuance of the "orders" passed by then ; nor the validity of the judgments would be brought under challenge on the ground that they were obtained by practising fraud/misrepresentation on these Courts. The fraud and misrepresentation alleged from the appellant's side in this case is alleged to have been committed by the respondent, not in connection with the proceedings, but much before their initiation and that it is not connected with the proceedings in any manner whatsoever. ' The general principle of res judicata would also not be attracted in this case as the final decision by this Court which has upheld and restored the order of the Rent Controller itself has, on account of the doubts expressed by the learned appellate Court and High Court regarding the title of the alleged landlord and thus about the issue of…
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