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First Rent Appeal No. 889 of 1980, decided on 2nd November, 1982.
---S. 15-Landlord and tenant-Existence of relationship-Recording of evidence on question of default-Eviction of tenant straightaway *without recording evidence on question of default on basis of denial of existence of relationship of landlord and tenant but same found to exist-Eviction straightaway cannot be made in every case for reason that in some cases denial of relation of landlord and tentant may be for some cogent reasons
Nisar Ahmad v. Nazar Muhammad P L D 1974 Lah. 489 ref.
Muhammad Bux and another v. Ghulam Rasool P L D 1982 Kar. 28 fol.
---S.15-Eviction proceedings-Default-Tenant specifically pleading in his written statement that rent was payable yearly and in support thereof producing receipts--Landlord neither producing evidence that rent was payable monthly nor stating so in his application-Rent Controller, held, rightly relied upon record produced by tenant and as such his eviction declined.
- S. 15-:-Payment of rent-Growing up practice contrary to law In absence of agreement fixing time to payment of rent, a party cannot go out of provisions of Ordinance and plead a practice contrary thereto.
Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56 ; Sh. Muhammad Hasan & Co. v. Mian Mahmood Ahmad Khan 1975 S C M R 355 and Abdul Rashid v. Saleh Muhammad 1980 S C M R 506 ref.
Ashiq AU Abdullah for Appellants.
Syed Ishtlaq All for Respondent.
Date of hearing : 2nd November, 1982.
This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 2-10-1980, passed by III Controller, Karachi, whereby he dismissed the application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 filed by the appellants for eviction of the respondent.
Briefly stated, the relevant facts are that the appellants claimed that the respondent is their tenant in respect of the shop No. 7, in building on plot No. G K 7/44, Machi Miani Road, opposite Kharadhar Police Chowki, Karachi, at the rental of Rs. 9-5-0 per month and that be was in arrears of rent of 3 months i. e. April to June, 1977, amounting to Rs. 27-1-0, which he failed to pay in spite of repeated demands. They further alleged that the respondents had sublet the premises to some third person with but consent or permission.
The respondent in his written statement stated that he was not the tenant of the appellant but in fact Jawad Hasan Irani Hotelwala was his landlord and he further pleaded that the rent was paid year to year and was not payable every month and in support of the plea he annexed three rent receipts in original to the written statement.
On the pleadings of the parties the following preliminary issues were framed :
"(1) Whether the relationship of landlord and tenant existed between the parties
(2) Whether the notice under section 13-A of the Ordinance has been served by the applicant If not, what is its effects "
As stated in the memorandum of appeal after recording the evidence adduced by the parties, the Controller by his order dated 28-8-1975, found both the issues in the negative and dismissed the appellant's application.
On appeal, however, the case was remanded by the Additional District Judge, Karachi for disposal according to law. After remand the Controller after passing the rent order framed the following issues.
"(1) Whether the opponent is willful defaulter, if so, since when
(2) Whether the opponent has sublet the disputed premises "
By the order dated 2-10-1980, impugned in this appeal the Controller decided both the issues against the appellants. He found that the landlord was accepting the rent annually and not monthly and that the appellants had failed to prove that the respondent bad sublet the promises and accordingly he dismissed the application.
I have heard Mr. Ashaq Ali Abdullah Advocate for the appellants and Mr. S. Ishtiaq Ali Advocate for the respondent.
The learned counsel for the appellants has raised the following points in support of the appeal.
(1) The respondent was liable to be evicted as he had denied the rela tionship of landlord and tenant between the parties.
(2) That the default in payment of rent was proved and it was willful.
Now, taking up the first point, it may be stated that the application was filed by Ramzan son of Hassan, Jawad son of Hassan, Mi. Khawar widow of Hassan, Mst. Zohra daughter of Hassan and Mil. Suraya daughter of Hassan and in paragraph (1) of the application under section 13 of the Ordinance, the appellants had stated that the respondent was their tenant.
In reply, in the written statement, the respondent had stated that he was not the tenant of the appellants and in fact one Jawad Hassan Irani Hotelwala, was his landlord and accordingly he had denied the relationship. This denial, it appears was made on the basis of three receipts Exhs. 9/1 to 9/3. In all these receipts show the name of 'Jawed Hassan Irani Hotelwala'. I may here reproduce one of the receipts (Exh. 9/1) in extenso;
"Bill No. 39 Plot No. G. K. 7
Shop No. 7. Dated : 11-2-1968
.
Mr. FAZAL RAHMAN S/o SYED GHULAM Dr.
JWAD HASAN IRANI HOTELWALA "A"
Kharadar KARACHI
6 to 15 (Pakistan)
Rs. Paisa
Rent for the months of 1968 January to1966 November 1966-68 124 65
Electric Charges--- to-------@ --------------------
Sub-Meter Rent.--------------------------
Arrears.-----------------------------------------
----------------------------------------------------------------------------------------------
Total: 124 65
----------------------------------------------------------------------------------------------
Received payment Rupees--- ---Stamp. (Sd.) Jawed Hasan."
On the preliminary issue the Controller had observed that the admitted position in evidence before him was that the respondent was the tenant of -the father of the appellants and was paying the rent to him and thereafter the father of the appellants bad expired and rights and interests .in the property were transferred to the appellants and, therefore, the notice under section 13-A of the Ordinance was necessary which was not given. However, in appeal it was observed that the rent application was not liable to be dismissed merely on the ground that no notice under section 13-A of the Ordinance was given to the respondent by the appellants and the question whether no relationship of landlord and tenant existed between the parties had to be decided on all relevant evidence before the Controller.
It is, therefore, obvious that the existence of relationship of landlord and tenant between the parties was denied on the basis of non-service of notice and it was' not the case of unqualified denial, and, further, the denial was based on the receipts (Exbs. 9/1 to 9/3), which show the name of the landlord as 'Jawed Hassan Irani Hotelwala', while the application was filed by the five applicants and Jawed Hassan Irani Hotelwala' as such was not mentioned therein. Mr. Abdullah cited Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489), and Muhammad Bux and another v. Ghulam Rasool (P L D 1982 Kar. 28).
In the first case it was observed :
"A person who does not acknowledge the relationship -of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. He is stopped by his conduct to plead that since he had been found to be a tenant, therefore, he should be allowed to prove the payment of rent."
These observations will not apply to the facts of the present case for the reasons stated in the preceding paragraph. However, in the case of Muhammad Bux and another relied upon by Mr. Abdullah it was stated by, Ajmal Mian, J. as follows : '
"(b) From the cited and discussed cases, it is evident that if a tenant raises a frivolous plea and denies the title of his landlord or relationship and if the Rent Controller on the basis of the evidence arrives at the conclusion that the plea raised by the tenant was unfounded, in that event, the Rent Controller may not record any evidence on the question of default and may pass an order of ejectment straightaway on the above ground. It may be observed that-Dorab Patel, J. (as he then was) in the aforesaid Karachi case, reported in Nooruddin and others v. Muhammad Qasim and 6 others P L D 1976 Kar. 921 took somewhat a different view than what was found favour with Zakiuddia Pal, J. in the above-cited Lahore case, reported in Nisar Ahmad v. Nazar Muhammad P L D 1974 Lah. 489 inasmuch as it was held by Dorab Patel, .J. that not in every case the Rent Controller is entitled to pass an order of ejectment straightaway without recording evidence on the question of default for the reason that in some cases denial of the relationship or the non-payment of rent may be justified on some cogent reason and in such a case, the Rent Controller had the discretion under section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 not to pass an ejectment order on the ground of default. However, there is no divergence in the view of the Lahore and Sind High Courts on the question that if a tenant raises a frivolous objection about the title or the relationship, in that event, the learned Rent Controller may pass an order of ejectment on the ground of default straightaway without recording any evidence on the above question. I am inclined to subscribe to the view found favor with Dorab Patel, J in the above-cited Karachi case."
From the above observations it will be seen that it is not every case it which the existence of relationship of landlord and tenant is denied and it is found to exit that tenant's eviction should be ordered straightaway without recording evidence on the question of default for the reason that in some cases the denial of relationship may be for some cogent reasons as in the case under consideration.
As regards the second ground that the default was proved and it was willful, the learned counsel relied on Muhammad Alimullah v. Ziaul Islam (P L D 1973 Kar. 56) Sh. Muhammad Hassan & Co. v. Mian Mahmood Ahmad Khan (1) and Abdul Rashid v. Saleh Muhammad (2).
It is an admitted fact that the default claimed was for three months from April to June, 1971, and the rent application was filed on 2-7-1971. If the rent was payable monthly then the respondent in the absence of any agreement fixing the time for payment of rent was required to pay the same within 60 days of the date when it became due. Therefore, the rent for the month of April had become due on 29-6-1971. Accordingly, when the application was filed on' 2-7-1971, the respondent could be said to have committed default only in respect of rent for April, 1971, and for no other months. However, the case of the respondent was that the rent was payable yearly and he had specifically 'pleaded so in paragraph 2 of the written statement and in support of the plea be had annexed three rent receipts (Exh. 9/1 to Exh. 9/3), which have already been referred to above and one of which has already been quoted hereinbefore in extenso. The first receipt is for 15 months for the period from November, 1966 to January, 1968 and is for Rs. 124.60. The other two rent receipts are for January, 1968 to December, 1968 and January to December, 1969. Therefore, these receipt have been rightly relied upon by the Controller in holding that the appellants were accepting rent annually and not monthly. However, it was submitted B by Mr. Ashiq Ali Abdullah that after 1969 the respondent was paying the rent on monthly basis. However, in support of this plea no evidence from the record has been pointed out. I enquired the learned counsel for the appellants whether the appellants had produced any counterfoil of the receipts showing that the rent was paid on monthly basis but he admitted that the appellants did not produce any counterfoils or any other evidence. Even appellant No. 2 who was examined on behalf of the appellants has not deposed that the rent was payable monthly. In the application also the appellants have only stated that the rent was Rs. 9-5-0, per month but they have not stated therein that the rent was payable monthly.
Now, reverting to the cases cited by the learned counsel for the appellants.
In the first named case the plea of the tenant was that the landlord used to collect rent at long intervals 10 to 12 months and, therefore, the statutory obligation had been modified by an agreement with the appellant. It was however, observed that the burden of proving this plea was heavily on him and be was required to give particulars of the alleged agreement in the written statement but the written statement merely stated that the appellant had collected the rent after long interval i. e. 10 to 12 months. In the present case the respondent has specifically pleaded that the rent was pay able yearly and not monthly and proved the same while the appellants have not stated in the application that the rent was payable every month.
Taking up the case of Sh. Muhammad Hasan & Co. it was pleaded that a practice bad grown up according to which the tenant paid rent in lump sum after every 6 months or every year. It was observed by the Supreme Court that the tenant had not taken any such plea in the written statement nor had be proved it and further such a contract was contrary to the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordi nance, 1959. As already stated in the present case not only the had pleaded in the written statement that the rent was payable crepe but C had also proved the same. Further, such a contract could not be said to (1) 1975 S C M R 355 (2) 1980 S C M R 506 be contrary to the provisions of section 13 of the Ordinance. Therefore, this case is distinguishable on Facts.
Now, taking up the case of Abdul Rashid v. Saleh Muhammad, it was observed that the parties cannot contract themselves out of the provisions of law on the subject i. e. the West Pakistan Urban Rent Restriction Ordi nance, 1959 nor can any party plead a practice which is Contrary to the law and that the landlord having accepted delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the any month. This case is also distinguishable from tenant by the 15th of every the present case for the reasons already stated above.
I, therefore, find no substance in this appeal and accordingly dismiss it with costs.
M. Y. M. Appeal dismissed.
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