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Second Appeal No. 137 of 1981, decided on 12th January, 1983.

‑‑ S. 15‑Eviction proceedings‑Dismissal of appeal‑Appeal can straightaway be dismissed where there are concurrent findings of lower Courts about existence of relationship of parties and tenant himself accepts ‑to be a tenant of landlord.

Nisar Ahmad v. Nazar Muhammad P L D 1974 Lah. 489; Muhammad Ismail v. Israr Ahmad P L D 1961 Lah. 601 and Mehdi Hassan v. Ghulam Muhammad etc. P L D 1964 Lah. 648 ref.

‑‑ S. 13‑Eviction proceedings‑Default in payment of rent‑Tenant not acknowledging other party to litigation as his landlord cannot in same breath raise a plea of having paid rent arrears to landlord‑Civil Procedure Code being not applicable to rent cases, inconsistent pleas cannot be raised in rent cases particularly pleas destructive of each other‑Once relationship of landlord and tenant denied such denial would raise a presumption that tenant must not have paid rent to other party and further enquiry about payment of rent would not be called for.

‑‑‑ S. 13 ‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of‑ 1958), S. 30‑Eviction proceedings‑Default in payment of rent‑Landlord on becoming owner of disputed premises fulfilling legal requirement of serving notice on tenant within 30 days apprising him of change of ownership of premises in his possession, requiring him to pay rent arrears‑Tenant through a letter demanding copy of sale deed for verification of title and on receipt of its copy sending rent arrears by money order‑Tenant failing to make enquiry about change of title from previous owner immediately on receipt of notice and losing time for supply of copy of title deed‑Tenant not entitled to demand copy of title deed and landlord not bound to provide same‑No evidence pro duced to show rent sent by tenant by money order and refused by landlord‑Tenant, held, committed wilful default‑Eviction of tenant ordered, in circumstances.

Shaikh Ghous Bux v. K. S. Muhammad Abdul Naim P L D 1976 Kar. 169 ; Mrs. K. Kazmi v. Syed Kamaluddin Shah 1982 S C M R 567 and Sh. Lal Muhammad v. Muhammad Mushtaq and others P L D 1975 Lah. 1117 ref.

Syed Qutubuddin for Appellant.

Abdul Naseer Khan for Respondent.

Date of hearing : 10th January, 1983.

This appeal has arisen out of the rent dispute in respect of 'the pre mises bearing No. 6128‑LY‑31/14‑VI‑B‑502 situating at Faqir Muhammad Dura Khan Road, Usmanabad, Karachi. The respondent Choudhry Muhammad Islam who claims to be the owner landlord of the said property filed ejectment application dated 27th March, 1976 seeking ejectment of the appellant from the aforesaid premises on two grounds namely default in pay ment of rent and conversion of the premises from residential to commercial use.

2. As the respondent had purchased the disputed premises from Muhammad Usman Khan original transferee of the Settlement Department by registered Sale Deed on 26th June, 1975, .he served the appellant who was occupying the said premises with notice dated 26th September, 1975. under section 13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 whereby he was not only notified about the change of the .ownership of the disputed premises but was also required to pay the arrears of rent for months of July, August and September, 1975 at the rate of Rs. 15 per month within 30 days of the receipt of the notice. However the appellant instead of pay ing the rent arrears in time made a demand for supply of a copy of the sale deed, by addressing letter dated 10th October, 1975 to the respondent. As he received no reply to his letter, he sent the respondent another letter re minding him of his demand for a copy of sale deed. The respondent by his letter dated 9th December,. 1975 however informed the appellant that he was not bound to send him a copy of the title deed, reiterating in the letter that he had failed to pay the rent arrears within the time specified in the notice. On this the appellant, after ascertaining the position from the original owner is stated to have sent arrears for six months (from July, 1975 to December, 1975) to the respondent by money order which was however returned to him undelivered. The appellant then deposited the rent in Court through miscellaneous rent application dated 6th January 1976, Hence the application for ejectment of appellant was filed.

3. The appellant opposed his ejectment denying the allegations of default in payment of rent arrears and conversion of user of the premises. He claimed statutory notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958 which, he said, was not given to him. Elaborating his stand with regard to payment of rent arrears, he averred that as soon as the previous landlord stopped receiving the rent from him he remitted the same by money order which was also refused. He further stated that he ultimately started depositing the rent in the Court of Xlth Civil Judge and Rent Controller, Karachi from 27th August, 1975.

4. In view of the pleadings of the parties, the learned Rent Controller struck a preliminary issue as to existence of relationship of landlord and tenant between the parties and after giving them opportunity to adduce evidence on this issue he decided it in favour of the respondent. Dissatisfied with this finding, the appellant inter alia agitated the same in the lower appellate Court which too found the issue. against him. Although by the present appeal. the appellant has called in question the decision of the lower appellate Court including its decision on the preliminary issue, yet the learned counsel for the appellant in course of his arguments did not con test the point of relationship of landlord and tenant between the parties. In other words, the appellant has ultimately accepted the relationship of tenant and landlord existing between him and the respondent. It is however too late for him to do so. In view of the concurrent findings of the two Court below on the question of relationship of parties and the appellant's own acceptance of his being tenant of the respondent, his appeal could be straight away dismissed on that ground. In this connection reference may be made to Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lab, 489), wherein it was held :‑

"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 estopped by his conduct to plead that since he has been found to be a tenant, therefore, he should be allowed to prove the payment of rent."

In above reported case reliance was placed on two authorities, namely Muhammad Ismail v. Israr Ahmad (P L D 1961 Lah, 601) and Mehdi Hassan v. Ghulam Muhammad etc. (P L D 1964 Lah. 648). In the case of Muhammad Isimail it was observed.

"The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an, action for eviction for non‑payment of rent the tenant will be precladed from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive."

The case of Muhammad Ismail was followed in the case of Mehdi Hassan wherein it was held :‑‑

"I am in respectful agreement with the observation of their Lordships of the Division Bench. It, however, depends on the facts and cir cumstances of each case whether further enquiry in a case is called for or not. If a respondent does not deny an allegation made against him that he had failed to pay the rent and alleges, on the other hand, that he was not a tenant of the petitioner. he, of course, cannot be permitted to plead the payment of rent after it is held by the Rent Controller that he is, infact, the tenant. These pleas in their context will be destructive of each other. He cannot be permitted to raise such pleas on the well‑established principle that no person can be permitted to approbate and reprobate."

I am in full agreement with the views expressed in the above authorities. The tenant cannot be permitted to adopt two stands that are diagonally opposite to each other. If he does not acknowledge the other party to the litigation as his landlord, he cannot in the same breath raise a plea of having paid the rent arrears to the said party. As the provisions of the Civil Procedure Code are inapplicable in rent cases, it is not permissible to raise inconsistent pleas in such cases, particularly the pleas of above kind which are destructive of each other. Once the relationship of landlord and tenant is denied, such denial on the part of the tenant would raise a pre sumption against him, that he must not have paid the rent to the other part and further enquiry about the payment of the rent would not be called for.

5. Examining the case from other angles, it would be seen that, the contention made by the learned counsel for the appellant is that the findings of lower Courts are not warranted by the evidence available on record which, he argued, has been misread and misappreciated. The learned counsel further submitted that the documents produced by the appellant in support of his plea have also not received due consideration in the lower Courts. On the other hand the learned counsel for the respondent averred that from the appellant's evidence it is established that he is not only defaulter in payment of rent but also the default committed by him is wilful.

6. In order to appreciate the respective stands taken by the learned counsel for the parties it would be useful to reproduce the factual position which is admitted by the parties. It is as under :‑

(1) The respondent purchased the disputed premises under the sale deed dated 25th June, 1975.

(2) As required by section 13‑A of the West Pakistan Urban Rent Restriction. Ordinance, 1959 (hereinafter referred as the said Ordinance), the appellant was given notice on 26th September, 1975 by, which it was notified to him that the respondent had pur chased the disputed house and further he was called upon to pay the rent for the months of July, August and September, 1975 which was in arrears, within 30 days of the receipt of the notice and pay future monthly rent regularly.

(3) On the receipt of the aforesaid notice the appellant by letter dated 10th October, 1975 requested the respondent to send him a copy of the sale deed, indicating therein his willingness to pay the rent to person whoever has title over the property in dispute. As he received no reply to his letter, the appellant addressed another letter dated 27th November, 1975 to the respondent repeating his demand for the copy of the sale deed.

(4) The respondent in his reply dated 9th December, 1975 to the appellant's communication dated 27th November, 1975 denied he allegations made by the appellant in his said communication that he was preparing grounds from creating trouble for the appellant in smooth enjoyment of the tenancy. In the same letter the respon dent also made it clear to the appellant that he was not bound to supply him the copy of the sale deed,

(5) On 9th December, 1975 the appellant sent Rs. 90, the rent for six months (from July, 1975, to December, 1975) to the respondent by money order which was, however, returned to him undelivered. After the return of the money order, the appellant deposited the rent in the Court through Miscellaneous Rent Application dated 6th January, 1975.

7. It would appear that after the respondent became owner of the disputed premises he fulfilled the legal requirement by serving a notice dated 26th, September, 1975 on the appellant apprising him of the change of ownership of the premises in his possession and requiring him to pay the rent arrears to him within 30 days of the receipt of the notice. There is of course no definite evidence as regards the date on which the appellant had received this notice. However it is an admitted position that in reply to the said notice the appellant wrote a letter to the respondent on 10th October, 1975 demanding from him a copy of the sale deed. Even if it be assumed that the appellant had received the notice on 10th October, 1975, he was under legal obligation to pay the rent arrears specified in the notice within 30 days of the said date i.e. latest by 9th November, 1975. But instead of making the payment within the specified period he chose to address a communication to the respondent asking for a copy of the sale deed. The question would arise if the appellant's demand for the copy was legally justified. Obviously he wanted the document to see for himself and verify the fact that the respon dent had actually purchased the disputed premises. It is the case of the appellant that it was after he verified the fact of the premises having changed hands, from the previous landlord, that he lost no time to send the rent arrears to the respondent by money order. If he had any misgiving about the change of ownership of the premises, he could have made such enquiry from the previous owner immediately on receiving the notice from the res pondent. The time lost in writing to the respondent for supply of title deed, cannot be satisfactorily accounted for Furthermore the learned counsel for the appellant was unable to point out any provision of law which entitled the appellant to demand a copy of the sale deed or under which the respondent was bound to supply the same. On the other hand the learned counsel for the respondent cited two authorities namely Shaikh Ghous Bux v. K. S. Muhammad Abdul Naim (P L IV 1976 Kar. 169) and Mrs. K. Kazmi v Syed Kamaluddin Shah (1982 S C M R 56 7) to show that the respondent was not legally bound to supply the copy of the sale deed. In the case of Sh. Ghous Bux the respondent who had purchased the disputed house from the Settlement Department served a statutory notice on the appellant as required by section 30 of the Dis placed Persons (Compensation & Rehabilitation) Act, 1958, whereupon the appellant remitted the rent through money order but at the same time asked the respondent to show the documentary proof of the purchase of the pre mises. It was held :‑

"The plain reading of the above provision would clearly show that there is nothing in it to oblige the transferee/landlord to satisfy the occupant of the building by affording him the inspection of the title deeds. All that is necessary is to intimate the occupant the fact of transfer in respect of the building and by subsection (3) also demand rent therefor. I, therefore, find no force in the contention of the learned counsel for the appellant that the refusal of the respondent to supply the appellant with the copies of the title deeds furnish any justifica tion for withholding the rents due."

In the case of Mrs. K. Kazim the .property in dispute was sold by registered deed in favour of the respondent who served a notice on the appellant demanding rent at Rs. 250 per month but the appellant made counter demand for supply of copy of the registered deed and the rent was not paid to him as well. It was held :‑

"The respondent being the successor‑in‑interest of the original landlord, Haji Abdul Karim, and having served a proper notice on the appel lant giving particulars of the registered deed, stepped into the shoes of Haji Abdul Karim. No further act was necessary in law either on his part or that of appellant to bring about or complete the relation ship of landlord and tenant."

Reference has also been made to Sh. Lal Muhammad v. Muhammad Mushtag and others (P L D 1975 Lah. 1117) wherein it was observed :‑

"Section 13‑A applies only to cases where the property is transferred by the landlord to some other person. In such a case the transferee is required to serve a notice by registered post upon the tenant inform ing him of such transfer and the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (1) of sub section (2) of section 13 if the rent due is paid within 30 days from the date when the notice should in the normal course have reached him. The period prescribed by section 13 is consequently enlarged to 30 days and this enlarged period begins with the date when the intimation should in the natural course have reached the tenant."

It was further held :‑

"Even if the language was stretched to the limit of credulity it will not be possible to hold that this period of 30 days granted by section 13‑A was in addition to the period of 15 days granted by section 13 itself. The language .of section 13‑A does not admit of such an interpretation."

8. In view of the above reported eases, the appellants demand for supply of a copy of the sale deed was not consistent with the legal require ment. Consequently his failure to pay the rent arrears within 30 days of the receipt of the notice, would amount to default on his part within the mean ing of section 13‑A of the said Ordinance. As stated above the last date for the payment was 9th November, 1975. But the admitted position is that the appellant first tendered the rent to the respondent on 9th December, 1975 and that too by way of money order. It is further admitted that the money order was returned to the appellant undelivered. The appellant has failed to prove that even though the payment by money order was belated, the respondent had refused to accept it. The money order coupon produced in evidence does not bear any endorsement of the postal authorities indication the respondent's refusal to accept the money order. The appellant ha made no attempt to prove the refusal from the mouth of the concerned post man. In absence of positive evidence in this regard, mere return of the money order as undelivered would not raise a presumption of such refusal on the part of the respondent. May be the money order was returned undelivered owing to absence of the respondent from his house or for such other reason. It would further be noted that even after the return of the money order, the appellant does not seem to have endeavoured to contact the respondent at personal level or through some other source.

9. From the above discussion it would be clear that the appellant was not only in default in paying the rent arrears to the respondent but also has exhibited a conduct right from the commencement of relationship of land lord and tenant between him and respondent which has rendered the default attributed to him as wilful. The learned counsel for the appellant made feeble attempt to refer to the authorities mentioned in the judgment of the lower appellate Court, urging that the discretion vested in the Court be exercised in favour of the appellant/tenant. The argument is obviously without merit. It would appear from the judgment of the learned Additional District Judge that he had duly considered the authorities cited before him but did not find the same to have advanced the appellant's case in any manner. I .see no reason to take a different view. Accordingly the appeal is dismissed with costs. The appellant is directed to vacate the disputed premises and put the respondent in peaceful possession thereof by 31st March, 1983.

Appeal dismissed.

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