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Petitioner: Syed ZAHID ALI VS Respondent: Syed MUHAMMAD NASIM
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title: Syed ZAHID ALI vs Syed MUHAMMAD NASIM Case No.: Second Appeal No, 96 of 1978 Date of Judgment:1983-12-05 Reported As: 1984 CLC 828 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This is a second appeal filed by the tenant/appellant. The dispute between the parties relates to a house in Federal '13' Area, Karachi which had been rented out by the respondent/landlord to the appellant. Rent Case No, 3393 of 1975 was instituted by the respondent before the Rent Controller, on 25th September, 1975 for the ejectment of the appellant on the following grounds :- (i) The appellant was a defaulter with effect from February, 1975. (ii) Premises were required by the respondent for himself and for his family members ; and (iii) Unauthorised alterations had been carried out by the appellant in the tenanted premises. This ground, however, was not pressed by the respondent. ' The case of the respondent regarding the ground of default was mentioned in paras. 2 and 3 of the ejectment application. It was averred that the appellant was an extremely difficult tenant and was a chronic defaulter and had never paid rent in time. It was further averred that the appellant had made default in the payment of monthly rent for the months of February, 1975 upto the date of filing of the ejectment application and as such he was in arrears of rent amounting to Rs, 4,840 at the rate of Rs, 230 per month. The case regarding personal requirement was mentioned in paras. 6, 7 and 8 of the ejectment application. It was averred by the respondent that he required the tenanted premises for his personal use in good faith bona fide for accommodating his own family member who were at that time putting up with his brother-in-law who also had a large family and the house of his brother-in-law was insufficient to accommodate two large families. It was further stated that the wife of the respondent was an old patient and was under the treatment of a doctor who had advised her for open atmosphere and she required an independent room for her accommodation as per the doctor's advice. Then it was averred that the children of the
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respondent had also grown up and were to be married shortly and it had become very difficult for the respondent to live with his brother-in-law who had also requested the respondent to vacate the house. As noted above, the ejectment application was filed, on 25th September, 1975. Prior to the filing of the ejectment application, a legal notice had also been given on behalf of the respondent to the appellant. In this legal notice, dated 25th June, 1975 a demand was made for the arrears and in para. 5 of the said notice it was stated as follows :- "That as you are aware my client has a large family consisting of seven children and a wife who are presently living with his brother-in-law who has also a large family and the accommodation is insufficient to accommodate two families. As such my client now requires the premises in good faith bona fide for his personal use and occupation as the children have now grown up and as such you are required to hand over the vacant and peaceful possession of the premises to my client." ' It may be observed here that admittedly no reply was given to this notice. The ejectment application was resisted by the appellant who filed a written statement in which the tenancy and the monthly rent at Rs, 230 was admitted. Allegation about default was denied. It was pleaded that since the respondent avoided to receive the rent, it had been deposited in Miscellaneous Rent Case No, 2393 of 1975 up-to-date. The allegations about personal requirement were denied. The parties examined themselves. No other witness was examined by either party. By order, dated 23rd August, 1977, the Rent Controller dismissed the ejectment application. The respondent filed Appeal No, 320 of 1977 and this was allowed by order, dated 4th February, 1978 of the learned IIIrd Additional District Judge, Karachi. The First Appellate Authority held that rent for the month of April, 1975 was not paid within the due period provided by the Rent Ordinance and it amounted to a wilful and intentional default on the part of the appellant and the evidence on record did not warrant condonation of this default. On the ground of personal requirement also the case of the respondent was upheld. Ejectment was accordingly ordered on both the grounds i. e. Default in payment of rent for April, 1975 and on the ground of personal requirement of the respondent. Being aggrieved by the order, dated 4th February, 1978 of the First Appellate Authority, the appellant/tenant has approached this Court in Second appeal. I have heard Mr. Z. U. Ahmed, learned counsel for the appellant and Mr. S. Hamid Ali, learned counsel for the respondent. 3. On the question of default it was contended by the learned counsel for the appellant that at best the case of the respondent was that there was a default in the payment of rent for one month only i. e. April, 1975. It is an admitted position that in Miscellaneous Rent Case No, 2393 of 1975 filed by the appellant three months' rent i. e. For April, May, and June, 1975 was deposited with the Rent Controller on 30th July, 1975. As there was no written agreement of tenancy in existence at the relevant time, for deciding whether a default had been committed, period of 60 days mentioned in section 13 (2) (1) of the 1959 Rent Ordinance would be applicable. The First Appellate Authority was correct in observing that in view of the aforesaid relevant provision of the 1959 Rent Ordinance, as rent had been deposited, on 30th July, 1975 in Miscellaneous Rent Case, there is more than 60 days delay of the part on the appellant only in respect of month of April, 1975 and not of May, and June of 1975. According to the learned counsel for the appellant this was a case of one month's default and on the basis of the evidence of record discretion should have been exercised in favour of the appellant. It was argued that a discretion vested with the rent control authorities and this was a case of technical default of one month and benefit should have been given to the appellant. In support of this contention Mr. Z. U. Ahmed relied upon the following reported judgments :- (i) Amina Begum v. Ghulam Dastgir (1). This judgment was cited by the learned counsel for the appellant to make a reference to a money-order receipt which alongwith certain other documents was presented in this Court with an application by the appellant requesting that such additional documents may be allowed to be brought on record. That application, C. M. A. No, 209 of 1983, was
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dismissed by me by order, dated 1st November, 1983. In PLD 1978 SC 220 it was observed that the civil Courts had the discretion in appropriate cases to take note of subsequent events and this discretion which vested in the Courts has to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, shorten litigation and to do complete justice between the parties and mound the relief according to the altered circumstances in the larger interest of justice. For the reasons recorded in my order, dated 1st November, 1983 I had rejected the application for bringing additional evidence on record including the money-order receipt which now the learned counsel wanted to be considered. PLD 1978 SC 220 does not help the appellant in this regard. The money- order receipt on which reliance was being placed was a document introduction of which was not permitted by me by my order, dated 1st November, 1983 and as such reliance cannot be placed upon that document. Then PLD 1978 SC 220 refers to subsequent events that is the events subsequent to the institution of the legal proceedings. Money order on which reliance is now sought to be placed by the learned counsel is document of a period prior to the date of institution of the ejectment application. (ii) Muhammad Shafi v. Lqbal Ahmad (2). In this case a learned Single Judge of the Lahore High Court while observing that the word "may" had been used in section 13 (2) of the 1959 Rent Ordinance, was of the view that this suggested that in case of nonpayment of rent it was a matter of discretion with the Rent Controller whether to order ejectment of the appellant. It was held in that case, that the circumstances in evidence were not sufficient for coming to the definite finding about non-payment of rent and in these circumstances doubt was resolved in favour of the tenant. (iii) Rehmat Ali v. Khadeja Hakim (3). This is a judgment by a Division Bench of the Lahore High Court. It was held there that in deciding whether the tenant is to be ejected or not, the whole period of default in payment of rent and the surrounding circumstances have to be borne in mind and in case there has been a deliberate default in payment of rent, a tenant is not entitled to be saved from the consequences of his default, that is, his ejectment. It was further observed that where there had been a default on the part of the tenant, there must be (I) PLD 1978 SC 220 (2) PLD 1965 Lah. 23 (3) PLD 1965 Lah. 29 ' good reasons for the exercise of discretion in his favour and not directing him to put the landlord in possession. (vi) Muhammad Ismail v. Muhammad Sharif (1). In this judgment by a learned Single Judge of the Lahore High Court it was observed that as wilful default on the part of the tenant was not proved, ejectment was not ordered in the circumstances of the case. (v) Meharban Ali v. Muhammad Kasim (2). In this judgment it was observed that default in payment of rent can form the basis of an order of ejectment if the default was not deliberate it was discretionary with the Rent Controller to pass or not to pass an order of ejectment. (vi) Muhammad Alimullah v. Ziaul Islam (3). In this judgment the learned Single Judge observed that the object of the 1959 Rent Ordinance was to protect the tenant from eviction only as long as he was ready and willing to pay the rent and the discharge of this statutory obligation by the tenant was a condition of his protection and he could invoke discretition under section 13 of the 1959 Rent Ordinance only if he could establish that he was ready and willing to fulfil his obligation to pay the rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. The learned Single Judge gave a few circumstances, which according to his view would have entitled 'the tenant to the benefit of discretion under section 13. According to the learned Single Judge if the tenant was not able to trace his landlord's whereabouts despite reasonable efforts or if there was a genuine dispute about the landlord's title or if the tenant had been regular for a long period of years in the payment of rent
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but through inadvertance fell into arrears for two or three months or the case of a tenant who could prove an estoppel on an agreement to pay rent at long intervals, were cases where the tenant would be entitled to the benefit of discretion under section 13. 3. On the other band, on the question of default, it was argued by Mr. S. Hamid Ali, learned counsel for the respondent. That this was a case of wilful default on the part of the appellant and the appellant was not entitled to discretion under section 13 of the 1959 Rent Ordinance. Learned counsel for the respondent relied upon the following reported judgments :- (i) Waris All Tirmizi v. Liaquat Begum (4). In this case the contention on behalf of the tenant was that he was paying rent at long intervals at the request of landlord's husband to suit his convenience. It was noted by the Supreme Court that out of nine payments, tenant twice paid rent of only one month and twice paid rent of only two months and, therefore, the tenant's claim regarding the landlord having himself desired not to receive rent at end of every month or two prima facie was wrong. It was held by the Supreme Court that the tenant had failed to prove that the respondent had agreed to alter the term of the tenancy as regards payment of rent in lump sum of several months at a time and the appeal filed by the tenant was dismissed by the Supreme Court. (1) PLD 1976 Lah. 150 (2) PLD 1976 Lah. 1052 (3) PLD 1973 Kar 56 (4) 1980 SC MR 601 (ii) Tar Muhammad Janoo v. Taher Ali (1). In this judgment it was held by the Supreme Court that the mere fact that a tenant has made it a habit not to pay rent regularly every month and that the landlord has tolerated his default for sometime and accepted the rent paid at irregular intervals, cannot in any way be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it nor does it absolve the tenant from paying rent every month. It was also observed that a landlord's acceptance of the rent paid to him at irregular intervals does not in any way show that he does not expect it to be paid regularly every month as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Court of law or his reluctance to incur the expenses and hazards of litigation. It was further observed that the tenant cannot be allowed to take advantage of his own negligence or his having taken advantages of deliberate non-payment of rent in time every month on the ground that the landlord had been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. (iii) Muhammad Burhanuddin Saheb v. Abdul Rehman Abdul Hamid (2). In this judgment a learned Single Judge of this Court held that parties cannot contract themselves out of provisions of law nor can any party plead a practice contrary to law and the tenant is required by law to pay rent by the specified time and he cannot allege a contract or practice to the contrary and the mere fact that the landlord accepted delayed payment of rent in the past cannot be said to have given rise to a practice for the tenant to make a delayed payment in derogation of provisions of section 13 of the 1959 Rent Ordinance. (iv) Hafiz Dawood v. Abdul Ali Khan (3). In this case it was held that tender of rent of several months at a time in lump sum was not proper tender under the 1959 Ordinance. It was noted that on two occasions the tenant had tendered rent of several months at a time and this fact was additionally considered to be a factor which established that the tenant was in default as he had not complied with the statutory provisions of 1959 Rent Ordinance. ' As observed earlier it had been contended by the learned counsel for the appellant/tenant that in this case as there was default in the payment of rent of one month only that is for the month of April, 1975, the discretion should have been exercised in favour of the appellant on the basis of the evidence on record. It has to be considered whether the view of the learned First Appellate
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Authority that on the basis of the evidence on record the appellant was not entitled to any condonation that is discretion is arbitrary and that on the evidence the discretion should have been exercised in favour of the tenant/appellant. It was argued that a case of deliberate default had not been established. It was further pointed out that three money-orders had been sent by the appellant to the respondent which clearly indicate the desire of the appellant to pay rent to the respondent. It was further pointed out that the respondent at the relevant time was posted outside Karachi and in view of this background a default of one month should have been (1) 1981 SC MR 93 (2) PLD 1981 Kar. 164 (3) 1973 SCMR 598 ' condoned. In the ejectment application it was alleged that the appellant had not paid rent since February, 1975. In para. 3 of the written statement filed by the appellant it was stated that the appellant had not made any default in the payment of rent and then it was averred that since the respondent avoided to receive the rent, the rent had been deposited in Miscellaneous Rent Case No, 3393 of 1975. In this case several letters/notices were sent by the respondent to the appellant. Exh. 5-B/i is a letter, dated 5th January, 1975 of the respondent addressed to the appellant. In this letter, which was written from Rawalpindi, the appellant was asked to note that the respondent's account in Karachi had been closed and appellant was requested to send payment of rent through money-order and not by deposit in the bank. It was also pointed out that four months rent was due and it should be remitted to him. After this comes Exh. 5-B/2, which is the letter dated 21st January, 1975 of the respondent addressed to the appellant in which he acknowledged Rs, 460 by money-order on 16th January, 1975 being the rent for November, 1974. In this he referred to the previous letter, dated 5th January, 1975, wherein he had requested the appellant to send him the rent of four months that is October, November and December, 1974 and January, 1975. He acknowledged the receipt of rent of two months and requested that the rent of December, 1974 and January, 1975 may be sent immediately. He further stated that he had every hope that the appellant would now pay the monthly rent regularly and in time but it was regretted that the appellant was not doing so and late payment was creating many problems and difficulties for the respondent. After this the respondent wrote another letter, dated 12th February, 1975 (Exh. 5-B/3), in which he pointed out that he had not received the outstanding rent for December, 1974 and January and February, 1975. He also stated that he failed to understand why the appellant was not paying rent in time when it was agreed by the appellant. He also explained his difficulties on account of nonpayment of rent in time. This notice sent under registered cover was returned to the respondent with the endorsement of the Postal Authorities that the appellant was not available at the house and the persons who are living in the house do not accept the registered cover. The endorsement shows that the postman had gone on 13th, 14th, 15th, 17th, 18th, and 19th February, 1975 to deliver the registered cover. This registered cover was opened by the Rent Controller during the evidence of the respondent. Then Exh. 5/C is a registered notice, dated 14th February, 1975 given by the appellant to the respondent, in which he made a grievance about non-repair of the premises and asked the respondent to do the maintenance and repair works without any further delay. In this letter he also asked receipts of the rent sent by him through money-orders. Exh. 5-E is the legal notice, dated 25th June, 1975 sent on behalf of the respondent to the appellant in which it was mentioned that rent had not been paid from February, 1974 to June, 1975 and it was further mentioned that the premises were required for his personal use and occupation. It is in this back ground that the question of default has been to be considered. It is not a case where a tenant has been paying rent regularly for a long period of five and then there was a default of one month. It is a case where by three letters and one legal notice the appellant was reminded that the rent was in arrears. The respondent had impressed time and again upon the appellant to pay the rent monthly which was not being done by the appellant. The difficulties in which the respondent was placed on
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account of delayed payment of rent by the appellant was also brought to the notice of the appellant through the letters written by the respondent as noted hereinabove. Then the legal notice, dated 25th June, 1975 (Exh. 5-E) called upon the appellant to pay the arrears of rent forthwith. In spite of this if the appellant goes on to make a default in the payment of rent and the First Appellate Authority does no exercise discretion in favour of the appellant but holds him to be a wilfu defaulter, I find no perversity, arbitrariness or illegality in the finding of the First Appellate Authority. Reliance had been placed on reported judgment by the learned counsel for the appellant that before a tenant could be held to be a defaulter for which he is liable to ejectment it has to be establishe that the default in the payment of rent is deliberate. In my view, the present is a case of deliberate default. As observed earlier, the appellant was pointed out from time to time in writing that the rent should be paid regularly but in spite of this he committed a default. The First Appellate Authority, in the circumstances, was correct in holding the appellant to be a wilful defaulter for which the appellant was liable to be ejected under the provisions of the 1959 Rent Ordinance. As on the basis of evidence the default committed by the appellant has been found to be deliberate and which finding in my view is based on evidence, none of the authorities cited by the learned counsel for the appellant supports the appellant's case that the respondent was not able to establish a case of wilful default against the appellant. 4. On the ground of personal requirement, it was argued by Mr. Z. U. Ahmad, learned counsel for the appellant that no case had been made out by the respondent. According to the learned counsel there was no evidence on the basis of which a finding could be given by the First Appellate Authority that a case of bona fide personal requirement had been made out by the respondent. In his examination-in-chief the respondent had stated that at the time of giving evidence his headquarter of service was at Hyderabad but he usually came to Karachi on tour and, therefore, he needed the premises in question for his personal use. He further stated that he was living with his brother-in-law at Golimar and his children were getting education in Karachi. He also produced the school report cards of his two children as Exh. 5/F and Exh. 5/G. In his cross-examination he stated that his children were living in the house of his brother-in-law since 1974. He further stated that he did not have any share in the house of his brother-in-law. He gave the ages of two of his children, whose report cards had been produced by him, as 13 years and 11 years, respectively. He further stated that he usually stayed in Karachi about two days a week. It was further deposed by him that his wife was a patient of high-blood pressure and that he could not live with his brother- in-law as he was a patient of asthema and the house of his brother-in-law was tin-sheeted. He further stated that he did not have any other house except the premises in question. In his examination-in-chief the appellant had .Stated as follows : - "The family of the applicant is living here. The applicant's children are minors living with the brother-in-law of the applicant and the applicant told me that he does not want to shift his children from the house of his brother-in-law, as he has to pay the instalments of loan to the House Building Finance Corporation and that he is unable to live in Karachi and his children are under the supervision of his brother-in-law." ' In his cross-examination he admitted receipt of legal notice, dated 26th May, 1975 from the respondent (Exh. 5-E). ' It was contended by the learned counsel for the appellant that the case of the respondent on the ground of personal requirement was put up in his evidence in a casual manner and the evidence had only shown a mere desire on the part of the respondent to shift his family to the premises in question but the evidence did not establish a bona fide requirement of the respondent and his family. It was then contended that if the respondent had an elder son or if his children were going to be married as was stated in the ejectment application, the concerned children should have been examined which was not done. In so far as the sickness of the wife and about his own
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sickness, according to the learned counsel for the appellant except for the bare statement of the respondent no evidence was produced. ' Learned counsel for the appellant in support of his contentions on the point of personal bon^ fide requirement relied upon the following reported judgments :- (i) Fakhruddin v. Asadulah Shah (1). In this judgment a learned Single Judge of this Court considered the meaning of the words "good faith and bona fide" employed by the Legislature in sections 13 (3) (a) and (b) of the 1959 Rent Ordinance. Learned Judge agreed to the interpretation of these words in another judgment of this Court in the case of Mushtaq Ahmed v. Mrs. Mumtaz Zohra Rizvi (2) in which judgment the following observation was made :- "Subsection (3) clause (a) of section 13 of the Ordinance lays down that a landlord…
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