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Petitioner: IQBAL HUSSAIN VS Respondent: MOAZAM ZAHEER KHAN and another
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha Title: IQBAL HUSSAIN vs MOAZAM ZAHEER KHAN and another Case No.: C.P. No,S-800 of 2010 Date of Judgment:2016-01-15 Reported As: 2016 CLC 1348 Result: Petition dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD KARIM KHAN AGHA, J.--- This Constitutional Petition has been filed by the Petitioner against Judgment passed by learned District and Sessions Judge Court No,V, Karachi South (Respondent No,2) dated 3 1-5-2010 (the Impugned Judgment). 2. The brief facts of the case are that the Petitioner's father Mr.Tajammul Hussain had been the tenant of Shop No,6, Sky View Building, Survey No,26 Sheet, A.M. Frere Road, Karachi (the Property) since 1952 paying a monthly rent of Rs,34.59 to the then Landlord GME Patel. On the death of the Petitioner's father the Petitioner continued working in the Premises and running the business of photocopying and became a statutory tenant (the Tenant). On 27-5-1984 the Respondent No,1 (the Landlord) purchased the Property by registered sale deed from the then owner subject to the occupation of the Tenant and became the .Tenants of new landlord. 3. After the purchase the Landlord sent a legal notice dated 10-7-84 (legal notice/notice) through his counsel to the Tenant informing him about the purchase of the Property by the Landlord and according to the Landlord instructed the Tenant to pay an increased monthly rent of Rs,350 to the Landlord. The Tenant on the other hand confirmed having received the notice but disputed that it contained any increase in rent and in any event he did not agree to any increase in rent and hence he deposited the rent at the existing rate in MRC No,791/1968 up to 31-7-1984 with the Nazir of the civil Court in the name of the previous Landlord GME Patel. He also sent rent at the existing rate i.e, 34.59 per month to the Landlord's Rent Collector Mr. Haroon Rehmatullah (Haroon) on 25-8-1984 through money order for the months of August, September and October, 1984 who according to the Tenant declined to accept the same.
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4. According to the Tenant he again on 12-9-1984 sent rent through money order amounting to Rs,105/- to the landlord's Rent Collector being rent for the months of August, September and October 1984 at the existing rate but again the landlord's rent collector refused to accept the payment. According to the Tenant since he apprehended false grounds of non-payment of rent by the .Landlord he moved an application under section 10(3) of Sindh Rented Premises Ordinance, 1979 (XVII of 1979) (SRPO, 1979) in Court of IInd Rent Controller, Karachi South on 08.10.1994 (sic) for depositing amount of Rs,210/- with the Nazir of the Court being rent of the Property at the existing rate from July to December, 1984. He also further obtained permission to deposit monthly rent at the said rate regularly in MRC No,3338/1984 and had been paying the rent accordingly till date. 5. The Landlord moved an application under section 15 of the SRPO, 1979 before the Vth Rent Controller Karachi South seeking to evict the Tenant. The main gxounds were that (a) the tenant had failed to pay rent within 60 days after the rent had become due for payment (b) the tenant had used the property for purposes other than which it was let out (c) that the Tenant had committed such acts as were likely to impair the material value of the Property and that (d) the Landlord required the Property in good faith for his own occupation or use. 6. After the recording of evidence, the V-Rent Controller, Karachi South by order dated 02.03.2009 (the Order) held that the Landlord required the Property for his personal use in good faith and that the Tenant was a willful defaulter in the payment of rent of the Property. Accordingly, the Tenant was directed to vacate the Property within 30 days from the date of the Order. 7. Being dissatisfied with the above mentioned Order the Tenant preferred an appeal in the Court of District Judge at Karachi South (FRA No,75/2009) under section 21 of the SRPO, 1979 on the basis that the Rent Controller had erred in finding that the Landlord had conclusively established his personal requirement of the Property in good faith due to a misreading of evidence and that he had also erred in finding that the Tenant was a willful defaulter based on a non-reading of the evidence. 8. The aforesaid appeal was dismissed vide judgment dated 31.5.2010 by the learned Vth Additional District and Sessions Judge, Karachi South. It is against this Impugned Judgment that the Tenant has preferred this constitutional petition before this Court. 9. Learned counsel for the Tenant/Petitioner submitted that the Impugned Judgment was bad in law and was liable to be set-aside. In the alternative he argued sections 21(1)(C) and (D) of the SRPO, 1979 were applicable and that the case ought to be remanded back to the appellate authority to enable a compromise to be reached between the parties or enable him to continue his tenancy subject to payment of enhanced rent fixed by the authority. He submitted that since the Appellate Authority had not pressed into service these two sections of the SRPO, 1979 it was an error in law which justified the remand of the case back to the Appellate Authority in order to comply with these sections. 10. Learned counsel further argued that the use of the word "may" in the above mentioned sections was not strictly directory. In this respect he relied upon the case of Abdul Latif v. Ghulam Nabi and others 2006 YLR 522. 11. He further submitted that the Impugned Judgment was required to be set-aside because the learned Judge had erred in finding under section 15 of the SRPO, 1979 that the Landlord required the Property in good faith for his own occupation or use. According to the learned counsel for the Tenant/Petitioner the Landlord had other property in which he could set up his business and had no need of the Property in dispute especially since he had purchased the Property in 1984 knowing fully well that it was subject to an existing tenancy. 12. He also submitted that the affidavit in evidence of the Landlord's witness Mr. Azam Zaheer Khan who is the real brother of the Landlord had admitted that the Property was to be used for establishing his business i.e, Mr. Azam Zaheer Khan and not that of the Landlord and as such the
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Landlord did not require the premises in good faith for his own occupation or use of his spouse or any of his children as per section 15(2)(vii) as per the requirement of SRPO, 1979. 13. He further submitted that the Landlord in cross-examination had also admitted that he had not disclosed the nature of the business which he wanted to start in the Property in his affidavit in evidence. He also admitted that prior to the filing of the rent case he had not given any notice to the tenant in respect of default in payment of rent or in respect of alteration of the Property. In his evidence he had only voluntarily stated that he had verbally asked the Tenant for payment of arrears of rent. 14. He also argued that the correct monthly rent was Rs,34.59 per month and not Rs,350/- per month since neither was any figure in respect of revised rent communicated to him in the notice which he had received from the Landlord nor had he agreed to any increase in rent. 15. With regard to willful default in the payment of rent learned counsel for the Tenant/Petitioner submitted that there had been no default by him in terms of Section 15(2)(ii) SRPO, 1979 as upon receiving the notice from the Landlord he had immediately .Paid the rent at existing rate which was then due upto 31.7.1984 into the MRC account issued pursuant to his application under section 10(3) of the SRPO, 1979; He had continued paying rent into this account till date and there was no question of any willful default on his part and the learned Judge had erred in such finding in the Impugned Judgment. 16. Learned counsel for the Tenant/Petitioner in further support of his contentions referred to the cross-examination of landlord whereby the landlord had admitted that the Tenant was directed to pay rent to his rent collector Mr. Haroon and it was correct that the rate of rent was not mentioned in the legal notice. The landlord had admitted that he was unaware that the Tenant had started depositing rent in MRC No,338/1984 in the court of learned 2nd Rent Controller, Karachi South and did not know whether the Tenant had committed any default in payment of rent. 17. With regard to the aspect of the Tenant/petitioner using the Property for the purpose other than for which it was let out and the Tenant committing acts which were likely to impair the material value of the Property under section 15 of the SRPO, 1979, this was denied by him in his evidence and he submitted that there was no evidence on record to contradict him in this regard. 18. In summary for all the above reasons learned counsel for the Tenant/Petitioner submitted that the Impugned Judgment should be set-aside or in alternative the matter should be remanded back to the learned Appellate Authority to deal with the matter in accordance with section 21(1)(C) and (D) of the SRPO, 1979. 19. Learned counsel for the Landlord fully supported the Impugned Judgment which he submitted had been correctly decided in accordance with law. The learned Judge had rightly based on the evidence found (a) .That the landlord required the Property in good faith for his own occupation or use and (b) that the Tenant had willfully defaulted in the payment of rent so as to attract the provisions of section 15 SRPO, 1979 to justify the eviction of the Tenant from the Property. 20. With regard to section 21(1)(C) and (D) of the SRPO, 1979 learned counsel for the Landlord submitted that it was settled law that the use of the word "may" used in the said sections was purely directory in nature and not mandatory and therefore the learned Judge was not bound to follow these sections. In support of his contention, learned counsel relied on Azam Khan through General Attorney v. Muhammad Hussain and 5 others 2003 CLC 278. 21. Learned counsel for the Tenant/Petitioner further submitted that the writ jurisdiction was not maintainable in cases where there had already been two concurrent findings i.e, in this case of the Rent Controller and thereafter the District and Sessions Judge in the First Rent Appeal. 22. In this respect he placed reliance on Ittehad Chemicals Ltd. v. WI-Additional District Judge and others 2010 CLC 599 and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCM R 1925.
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23. With regard to the increase in the payment of rent to Rs,350/- per month learned counsel for the Landlord submitted that this had been admitted by the Tenant in paragraph No,9 of his written statement. 24. Learned counsel for the Landlord also submitted that section 10(3) of the SRPO, 1979 had not been complied with since the Landlord had not refused or avoided to accept the rent since this had never been offered to him by the Tenant in the first place and as such since this precondition of section 10(3) of the SRPO, 1979 had not been complied with the Tenant did not have the right to send the rent by postal money order or depositing the same with the Controller within whose jurisdiction the Property was situated and in so doing the Tenant had committed Willful .Default. In this respect learned counsel placed reliance on Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCM R 1501. 25. He also submitted that section 18 of the SRPO, 1979 had been violated since the Tenant had not paid the Landlord the due rent within 30 days of receipt of notice of the new landlord together With revised rent. 26. Learned counsel for the Landlord further submitted that the delay in paying the rent by the Tenant in violation of section 15(2)(ii) of the SRPO, 1979 had been proved from the evidence and as such this violation entitled the tenant to be evicted under section 15 SRPO, 1979 as such delay amounted to willful default. Learned counsel placed reliance on Muhammad Subhan and another v. Mst. Bilquis Begum through legal heirs and 3 others 1994 SCM R 1507(2), and Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCM R 1140. 27. In connection with the Tenant paying the rent at the rate lower-than the fixed amount as in this case i.e, the Tenant was paying only Rs,34.59 instead of Rs,350/- per month this also amounted to willful default in terms of section 15(2)(ii) of the SRPO, 1979. He placed reliance on the case of M/s. Ali Brothers and others v. Mrs. Naushaba Jabeen and others 2001 M LD 648. 28. In connection with the question whether the Landlord required the Property for his bona fide occupation or use learned counsel for the Landlord submitted that it was not fatal to his case the fact that the landlord had not disclosed in his evidence the precise nature of the business for which the Landlord required the Property. In this respect he placed reliance on Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCM R 1152, Mst. Saira Bai v. Syed Anisur Rahman 1989 SCM R 1366, and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCM R 1925. 29. In conclusion based on his submissions learned counsel for the Landlord contended that the Landlord required the property for his own use in good faith and in addition this was a case of willful default and that the matter had rightly been decided in the Impugned Judgment which did not require any interference by this Court. 30. I have perused the record in detail and carefully considered the submissions of the learned counsel at the bar and considered the case law cited by them. 31. The first issue to consider is the maintainability of the Petition bearing in mind that there have already been two concurrent findings in respect of this matter as contended by the Landlord. 32. In the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCM R 1925 the Hon'ble Supreme Court held as under at placitum "i": "(e) Sindh Rented Premises Ordinance, (XVII of 1979)--- ' ----S. 15---Constitution of Pakistan (1973), Art.199--- Constitutional petition against order of Appellate Court-- Scope---Appellate Court was final authority under Sindh Rented Premises Ordinance, 1979---Constitutional jurisdiction could not be invoked as substitute to another appeal against such order---Mere fact that upon perusal of evidence High Court came to another conclusion would not furnish a valid ground for interference in such order." 33. Furthermore in the case of Ittehad Chemicals Ltd. v. VII-Additional District Judge and others. 2010 CLC 599 it was held as under at placitum (a):
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"Art. 199---Constitutional jurisdiction---Constitutional petition challenging concurrent findings given by courts below--- Interference with such findings by High Court---Scope. ' The scope of interference in constitutional jurisdiction is very Limited particularly so when there are concurrent findings by the Courts below. High Court should interfere with concurrent findings, inter alia, in the following circumstances:---(bold added) (a) When there is a misreading of evidence; (b) When there is non-reading of evidence; (c) When there is erroneous presumption of facts; (d) When there is a misapplication of law; (e) In the aid and to serve cause of justice but surely not to defeat it; (f) When a rule of law laid down by the superior courts has not been correctly applied by the courts below; (g) Constitutional jurisdiction cannot be exercised to reappraise evidence unless lower Courts appraised evidence in violation of well-settled principles for appraisal of evidence. (h) Even if a different conclusion is possible, the evidence shall not be reappraisal and such conclusion shall not be recorded by the High Court in exercise of its constitutional jurisdiction; (i) Constitutional jurisdiction cannot be used as second appeal; If the conclusion of the courts below are not found to be arbitrary, capricious or perverse." 34. Both of the aforesaid authorities in my view indicate there is very limited scope in the Constitutional jurisdiction for the High Court to interfere with the findings of the appellate Court in rent cases especially after two concurrent findings. 35. I am however of the view that although the scope may be limited it is not totally barred as there is always room for the High Court in its discretionary jurisdiction to ensure that complete justice is done. However, as indicated such interference in my view must only be used very sparingly and only where there has been a blatant and glaring error by the appellant Courts and that such interference will serve the cause of justice. Thus, I find the Petition to be maintainable under Art.199 of the Constitution. 36. At this stage it is significant to note that during the course of his arguments the learned counsel for the Landlord did not press his contention that the Property was being used for purposes for other than which it had been let out i.e, by also using a part of the Property for living purposes and that the Tenant had committed such acts as were likely to impair the material value or utility of the Premises i.e, through making unauthorized alterations. Neither of these grounds had been accepted by the Rent Controller nor by the learned Judge in the Impugned Judgment and thus do not require to be adjudicated upon. 37. The Only issues which therefore, remain are as under:-- (a) Whether the Rent Controller in his Order and learned Judge in the Impugned Judgment had erred in failing to apply S.21(1)(C) and (D) SRPO, 1979 (b) Whether the Rent should be paid at the monthly rate of Rs,34.59 or Rs,350 and (c) Whether the Rent Controller in his Order and learned Judge in the Impugned Judgment had erred in finding that the Landlord required the Property in good faith for his own occupation or use and (d) Whether the learned Judge in the Impugned Judgment had erred in finding that the Tenant had failed to pay rent to the Landlord within 60 days after it became due and as such this was a case of willful default. 38. Turning to the first issue (a) whether the Rent Controller and learned Judge in the Impugned Judgment had erred in failing to apply S.21 (1) (C) and (D) SRPO, 1979. 39. For ease of reference sections 21(1) (C) and (D) of the SRPO, 1979 are set-out below:-
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"(1-C) The appellate authority, may, at any stage of appeal attempt to effect a compromise between the parties. (bold added) (1-D) The appellate authority may, where it deems fit, before passing a final order allow the tenant to continue his tenancy subject to payment of enhanced rent fixed by the authority. "(bold added) 40. According to learned Counsel for the Tenant these amendments had been made in the SRPO, 1979 in around 2001 (which was not disputed by learned counsel for the Landlord). Since as a rule Parliament does not amend Statutes or Ordinances for the sake of it and rather does so in order to fill in loop holes in the law or to make a law more effective there is in my view good reason to believe that these two sections had been specifically added by Parliament with a view to attempt to short circuit the rather cumbersome and time consuming process as laid down in the SRPO, 1979 in connection with the matters set out therein. 41. In the case of Abdul Latif v. Ghulam Nabi and others 2006 YLR 522 was held in relevant part as under: "Para-12. The above two provisions were inserted in the enactment (SRPO, 1979) by way of subsequent amendment. They confer powers upon the appellate authority, which can exercise at its own or even at the request of any of the parties. No doubt word, "may" has been used in these provisions and normally it implies what is optional/permissible, but here the provisions have scheme of resolving the dispute by bringing compromise between the parties or allowing the tenancy to continue by enhancing the rate of rent. Obviously, the scheme is not to be rendered unworkable by leaving the provisions inactive. Thus, the powers conferred upon an authority under a scheme being discretionary or coupled with duty and are not discretionary simplicitor. (bold added) 12. Under Subsection (1-C) the Court has to attempt for bringing compromise between the parties. Although the compromise can only be effected when the parties agree to its terms but the authority has to use its skill for bringing the parties to some solution/terms in order to achieve the object of the law. No matter, if the attempt fails. However, if the authority considers it futile exercise due to visible rigid attitude of the parties or any of them or for any other reason it may not resort to such attempt. (bold added) 13. Under Subsection (1-D) the appellate authority shall apply its mind about the fitness of the case for exercising the power to allow the tenancy to continue subject to payment of enhanced rent fixed by it. After that it may exercise the powers in a case considered fit for that. The cases where the controversy at the appellate stage relates only or mainly to the rate or nonpayment of the rent can be fit for the exercise of the powers under Section 21(1-D). There may be the other cases also for exercise of these powers by the appellate authority. Thus the fitness of the cases for exercise of the powers depends upon the facts and circumstances of an individual case. (bold added) 14. Since the provisions have their scheme the appellate Court is ordinarily to exercise the powers conferred upon it by these provisions. The absence of an attempt to bring compromise may not but the non-application of mind about the fitness of a case for exercised of powers under subsection (1-D) may warrant the upsetting of the decision recorded on merits, in the cases which are fit for exercise of that power." (bold added)(sic) 42. It is an admitted position between the parties that these sections were not pressed in to service. The question therefore arises whether these provisions of law are mandatory and must be followed by the Appellate Authority or whether they are only directory in nature. 43. It is well settled law that if the words "may" are (sic) used they are only directory and not binding whereas if the word "shall" is used it is mandatory and must be complied with especially if adverse consequences may follow. 44. In the case of Azam Khan through General Attorney V. Muhammad Hussain and 5 others 2003 CLC 278, it was held at placitum "B" as under:
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"(b) S.21 (1-C) [as amended by Sindh Rented Premised (Amendment) Ordinance (XIV of 2001)--- Provisions of S. 21(1-C) of the Ordinance, whether directory or mandatory---Non-compliance of such provisions---Effect---Such provisions are directory in nature and not mandatory---No penalty, adverse conclusion, inference or action has been provided against any party or regarding conduct of proceedings for non-compliance thereof---Such provisions are required to be complied with in letter and spirit---Appellate Courts are expected to make any attempt to effect a compromise between parties---Mere fact of not setting dispute by litigants or conduct of parties in not arriving at a compromise cannot render an order of Appellate Court illegal." (bold added) 45. The case of Abdul Latif (Supra) suggests that the use of this section is not discretionary simplicitor and I firrd that there is some weight, both in common sense and saving the time of both the parties and the relevant authorities, in the argument that both provisions should be pressed into service in order to reach a compromise at an early stage' of the proceedings. 46. However on balance, based on the settled law, I am unable to conclude that these two sections are all but mandatory. If the legislature wanted them to be mandatory then it would have made them so in clear language by using the word "shall" and adding an adverse consequence for failure to comply. It is the duty of the Court to apply the law and not make law. Interpretation by the Courts is only required if the law is unclear and requires interpretation. In this case the law is absolutely clear. Namely, that the provisions are directory only in nature. 47. Reliance is placed on the case of Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483) which a larger Bench of the Hon'ble Supreme Court found at placitum (i) as under: "Interpretation of statutes--- ----Intent of framers of law/Constitution---Determination--Principles. ' A fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not…
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