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First Rent Appeals Nos. 900 and 1045 of 1982, decided on 29th April, 1984.

---S. 21--Ejectment--Default in payment of rent and unauthorised construction by tenant--Order of ejectment by Rent Controller on ground of unauthorised construction challenged--No evidence led to prove that construction had impaired value or utility of tenement--Finding of Rent Controller set aside holding that only unauthorised construction which impairs value or utility of tenement can furnish ground for ejectment- Ejectment ordered on ground of default in payment of rent.

Mst. Alima Ahmed v. Amir Ali P L D 1984 S C 32 ref.

Shaikh Mir Muhammad for Appellant.

Abul Khair for Respondent.

Date of hearing: 29th April, 1984.

These two appeals are inter-connected and have been directed against the order, dated 7-8-1982, passed by the learned XII Senior Civil Judge/Rent Controller, Karachi in Rent Case No. 895/77.

The brief facts leading to the filing of the above appeals are that the respondent in F.R.A. No. 900/82 and appellant in F.R.A. No. 1045 of 1977 filed the above rent case on two grounds, namely default for the period commencing from June, 1976 upto February, 1977 as the rent case was filed on 1-3-1977, and, unauthorised construction. The above application was resisted by the appellant in F.R.A. No. 900/82 and respondent in the other connected appeal. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:--

(1) Whether the opponent is wilful defaulter. If so since when

(2) Whether the opponent has made unauthorised construction. If so its effect

(3) What should be order be

3. The respondent/landlady examined her husband Syed Adil Hussain, whereas the appellant; tenant examined himself and two witnesses Muhammad Amin and Muhammad Ali. The learned Rent Controller after hearing the parties allowed the above rent application on the ground of unauthorised construction but dismissed the application on the ground of default. The appellant/ tenant has filed F.R.A. No.900/82 against the order of ejectment, whereas the respondent/ landlady has filed F. R. A. No.1045/82 against the finding of the learned Rent Controller on the question of default.

4. I will take up first the F.R.A. No.900/82 filed b, the appellant/ tenant. In support of the above appeal Mr. Shaikh Mir Muhammad, the learned counsel for the appellant /tenant has contended that the respondent /landlady has not led any evidence to prove that the alleged unauthorised construction has in any way impaired the value or utility of the tenement in question. He has further submitted that factually the appellant; tenant had put up asbestos sheets on the roof of the flat and not on the roof of the shop and, therefore, there is no unauthorised construction or addition to the tenement.

On the other hand, it was urged by Mr. Abul Khair, Advocate, for the respondent /landlady, that since the appellant /tenant has admitted the construction, the burden of proof was on him to show that he had obtained the permission of the respondent /landlady.

5. I have gone through the rent application and have noticed that in para. 3, the following averment has been made by the respondent/ landlady:--

"That the opponent has made unauthorised construction without the consent of the applicant and contrary to the terms of the agreement."

In my view, the above averments are vague and do not contain the material particulars as to the nature of the unauthorised construction or the factum as to how the alleged unauthorised construction has impaired the value or utility of the tenement. I am inclined to hold that not every unauthorised construction can furnish a ground for ejectment but it is only the unauthorised construction which impairs the value or the utility of the tenement. I am, therefore, not inclined to maintain the finding of the learned Rent Controller on the question of unauthorised construction as the respondent /landlady has not led any evidence on the question of impairing the utility or the value of the tenement. The appeal is, therefore, allowed and the finding of the learned Rent Controller is set aside. There will be no order as to costs.

6. In support of F.R.A. No.1045/82 Mr. Abut Khair Ansari, Advocate, for the appellant /landlady, has urged that since the factum that the rent was not paid from June, 1976 stands proved the finding of the learned Rent Controller on the question of default is not sustainable.

On the other hand, it was contended by Mr. Shaikh Mir Muhammad, Advocate for the respondent/ tenant, that the appellant/ landlady's rent controller used to come to collect the rent and since he had not turned up the respondent/ tenant had first sent the rent through cheque on 30-9-1976 for a sum of Rs.725 and thereafter the respondent/ tenant started depositing .the rent in Court.

7. It may be observed that the factum of remitting rent through cheque on 30-9-1976 is denied by the appellant /landlady. The respondent /tenant has not produced the undelivered registered cover. However, Mr. Shaikh Mir Muhammad has invited my attention to the photostat copy of registered cover and the photostat copy of the acknowledgement receipt unsigned. He has not been able to state as to why the original undelivered cover was not filed. Be that as it may, even if I were to accept the factum that the rent was remitted on 30-9-1976 for the period commencing from 1st June, 1976 and that the same was refused, the default still remains. The rent for the month of June was to be, paid in the first week of July, 1976. After excluding 60 days grace period, the rent for the month of June was to be paid by the first week of September, 1976. Admittedly the alleged cheque was sent on 30-9-1976 which was not received by the appellant/landlady. Even in the Photostat copy of the cover there is no endorsement of the refusal of the same. Be that as it may, as observed above that there will be still default for the month of June even if the respondent/ tenant is allowed the benefit of the above cheque. In the case of Mst. Alima Ahmed v. Amnr Ali P L D 1984 S C 32, the Hon'ble Supreme Court of Pakistan has held that alleged practice that the landlord's attorney used to collect accumulated rent was no defence to a ground of default. It may be advantageous to reproduce hereinbelow the relevant obser vations:--

"The ejectment application was instituted on 1-3-1971. The appellant alleged non- payment default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admitted payment of rent from April, 1970 to September, 1970, by cheque, dated 20-8-1970 and next by money order on 27-3-1971 for the rent of October, 1970 to March, 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousaf's case, the tenant was clearly in default for April and May, 1970 and October to December, 1970. This was so in spite of his having received a notice (Exh.P.10), dated 14-9-1970, calling upon him to pay the arrears and the current rent directly to the landlady. The alleged practice of the attorney of the landlady of collecting accumulated rent is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the benefit for the period October to December, 1970 after receipt of the notice (Exh.P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrable incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of the discretion and that such interference was unjustified, and hence merited interference in Second Appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance projects the tenants against eviction and encashment of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being fairness or in the name of justice."

8. The above Supreme Court judgment on all fours is applicable to the present case and admittedly there was default for the month of June, 1976. The appeal is, therefore, allowed and the finding of the learned Rent Controller is reversed. The respondent/ tenant is directed to hand over the vacant possession of the tenement to the appellant/ landlady. However, with the consent of Mr. Abut Khair the learned counsel for the appellant /landlady I would allow one year's period from today as the subject-matter is a shop, on the condition that the respondent/ tenant shall continue to deposit rent in terms of the Rent Controller's order which the appellant /landlady shall be entitled to file an execution application before the expiry of the above period of one year. Furthermore, in case the respondent /tenant fails to hand over vacant possession on the expiry of one year's period the learned Rent Controller shall issue a writ of ejectment without any further notice to the respondent /tenant.

Mr. Abul Khair the learned counsel for the appellant /landlady, requests that the appellant /landlady be allowed to withdraw the rent deposited in Court, to which Mr. Shaikh Mir Muhammad, Advocate for the respondent/ tenant has no objection. The Rent Controller shall pay the above amount to the appellant /landlady upon an application. There will be no order as to costs.

M. I. Order accordingly.

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