Find a Lawyer

Second Appeal No. 132 of 1979, decided on 28th August, 1983.

--- Ss. 13 & 15 and Transfer of Property Act (IV of 1882), S. 8 Eject ment Pending appeal by tenant, landlord selling property in dispute to respondent transferring all rights, title, interest in rented premises--Transferee, held, succeeds to rights already accrued to previous land lord Default committed in respect of rented property, held, not personal and passes to landlord along with other rights, benefits and advantages under sale-deed and Transfer of Property Act, S. 8 Respon dent being successor to previous landlord, held further, entitled to prosecute rent application on ground of default available to him.

Adil Brothers, Karachi v. Amin Art Press and others P L D 1976 Kar. 53 and Muhammad Ishaque v. Abdul Haq and 2 others 1982 C L C 665 rel.

---S. 13---Transfer of Property Act (IV of 1882), S. 8 Principles under-lying transfer of property Act, held, not completely ousted by Ordinance and to be preferred only in case of inconsistency.

---S. 145 Witness Statement of tenant inconsistent with his written statement Omission to cross-examine such witness on that point by landlord, held, immaterial Statement of witness cannot be taken at its face value West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15.--[Witness].

Abdul Wahab for Appellant.

Suleman Qassam for Respondent.

Date of hearing: 21st August, 1983.

House No. H. V. 1/2, 1/5, situated opposite Ramswami Tower, Karachi was transferred to one Manzoor Ahmed in the year 1962 by the Settlement Authorities. At the time of the transfer, respondent Muhammad Haroon was occupying this house, hence he became statutory tenant of the said Manzoor Ahmed. The latter filed an ejectment application against the respondent being Rent Application No. 2583 of 1968 in the Court of Civil Judge 1st Class and Rent Controller, Karachi on 11th September, 1968 on the ground that the respondent has failed to pay rent from 1-12-1965 onwards and that he (Manzoor Ahmed) required the pre mises in question for his own bona fide use. The respondent admitted being statutory tenant of the said Manzoor Ahmed. Receipt of notice under section 30 of the Displaced Persons Act, 1958 was also admitted. The rate of Rent @ Rs. 20 per month was also admitted. The respondent, however, denied, that he was in arrears. His plea was that on the verbal permission of the said Manzoor Ahmed, he had spent an amount of Rs. 560 on the repairs of premises and that this amount was to be adjusted towards the future rent.

2. The learned Rent Controller passed a tentative order directing the respondent to deposit arrears of rent and current rent with the Nazir of the Court. On failure of the respondent to comply with this order, the defence of the respondent was struck off vide his Order dated 15-2-1972. Against this order the respondent/tenant filed an appeal before District Judge, Karachi, which was Rent Appeal No. 157, of 1972 and it was heard by the IV Additional District Judge, Karachi. During the pendency of this appeal Manzoor Ahmed transferred the premises in question to the present appellant Arshad Mahmood Siddiqui. The first appellate Court, vide its order dated 21st April, 1973, in Rent Appeal No. 157/1972, allowed the application of the appellant for being substituted as landlord in place of Manzoor Ahmed. The above appeal was finally decided by the IV Addl. District Judge, Karachi on 6-12-1973, whereby the order of the Rent Controller, striking off the defence, was set aside and the case was remanded to the Rent Controller for disposal according to law.

3. When the record came back to the Rent Controller, the present appellant filed an amended application under section 13 (2) of the West Pakistan Rent Restriction Ordinance of 1959 (hereinafter referred to as the said Ordinance) in which he pressed only one ground for ejectment i.e. default< --[if gte vml 1]>< [endif]-->< [if vml]> in payment of rent from February/March, 1964. He also added that the respondent had made alterations in the premises which has materially impaired its value.

4. The respondent filed amended written statement in which he alleged that the ejectment application was not maintainable without notice under section 13-A of the said Ordinance, that no default had been committed, that the previous landlord had permitted him to make repairs in the house and adjust the cost of repairs amounting to Rs. 560 towards future rent. On the pleadings of the parties, following issues were framed by the trial Court:

< [if supportLists]>(1) "What is the monthly rent according to the latest assessment carried out by the K. M. C. which the applicant is entitled to demand from the opponent under section 30 of D P. Act of 1958

< [if supportLists]>(2) Whether the notice under section 13-A of the Ordinance was necessary for the applicant to give the opponent in view of judicial order dated 21.4-1973 passed by IV Additional District Judge, Karachi between the aforesaid parties

< [if supportLists]>(3) Whether the opponent has committed default in payment of rents

< [if supportLists]>(4) Whether the opponent has damaged the disputed premises or has committed such acts as are likely to impair materially its value or utility

< [if supportLists]>(5) Whether the opponent has made alterations in the disputed premises without written permission of the applicant

< [if supportLists]>(6) What should the decree be

After recording evidence of the parties, the learned Rent Controller came to the conclusion that the rent of the premises in question was Rs. 20 per month, that notice under section 13-A of the said Ordinance was not necessary, that no default was committed by the respondent in payment of rent, and that the plea of alterations etc. in the premises was not proved by the appellant. In view of the above findings the ejectment application was dismissed by the Rent Controller by his order, dated 15-11-1977.

5. This order was challenged by the present appellant by appeal under section 15(1) of the said Ordinance, which was dismissed by the learned VII Additional District Judge, Karachi by his order, dated 27th January, 1979. Hence this second appeal.

6. Learned counsel for the appellant has urged following points in support of the appeal:-

< [if supportLists]>(i) The judgments of the Courts below are based on misreading of evidence.

< [if supportLists]>(ii) That the appellant being purchaser of the premises in question from the original owner Manzoor Ahmad, has stepped into the shoes of the former and is entitled to the benefit of the default which was com mitted prior to his purchasing the property ; and

< [if supportLists]>(iii) That the Courts below have erred in ignoring the latest assessment of rent @ Rs. 45 per month made by the local authority and fixing the rent n Rs. 20 per month.

7. Perusal of the judgments of the Courts below shows that the respon dent had admitted arrears of rent to the extent of Rs. 460 which were payable to the previous landlord Manzoor Ahmed. The trial Court as well as the first appellate Court have taken the view that the default committed during the landlord ship of Manzoor Ahmed, the previous landlord, could not be availed of by the present landlord for the purpose of ejecting the respondent. It has also been held that the categorical statement of the respondent's attorney in his evidence that he was permitted by the previous landlord to effect repairs and to adjust the cost of repairs towards the rent, has not been disputed by the appellant in cross-examination. Both the Courts below, therefore, came to the conclusion that the default was not proved.

8. The question whether the default, if any, committed during the days of the previous landlord was available to the present appellant or not, has not been seriously pressed by the learned counsel for the respondent. Moreover Mr. Abdul Wahab has, in support of the argument that the default committed during the days of the previous landlord can be availed of by his successor i.e. the present appellant by virtue of section 8 of the Transfer of Property Act, 1882, relied on the case Adil Brothers, Karachi v. Amin Art Press and others (PL D 1976 Kar. 53). In the above case, about the right of transferee to continue and prosecute an ejectment application filed by the former landlord, the Court held as under:

"Under section 8 of the Transfer of Property Act, 1882 transfer of property passes forthwith to the transferee all rights, title and interest which the transferor is then capable of passing in the property and the legal incidents thereof. In the sale-deed executed in the instant case, the landlord transferred all his rights, title, interest in the property to the appellant and also covenanted with the appellant-vendees that henceforth the vendees shall be the rightful and absolute owners of the said property and shall peaceably and quietly hold, occupy and possess the same and enjoy all the rights, profits and benefits thereof without any let, claim, demand, denial, hindrance, interruption or eviction On the date of transfer, the order passed by the Rent Controller directing eviction of the tenants for the default com mitted by the latter existed in favour of the landlord which conferred rights, interest, benefit, and advantage on the latter to evict the respon dents tenants and obtain vacant possession of the premises. Default is committed in respect of premises and is not personal. Thus, when the landlord sold and transferred the building with all his rights, title,' interest, benefits and advantages in respect thereof to the appellant, the benefit of the default conferring the right to eject also passed to the appellant under the sale-deed as well as under the Transfer of Property Act as the Ordinance does not operate as a complete ouster of the principles underlying the Transfer of Property Act and is to be preferred only in case of inconsistency."

In another case of Muhammad Ishaque v. Abdul Haq and 2 others (1982 C L C 665) it was clearly held by Ajmal Mian, J. of this Court that a person purchasing pre mises from the landlord during pendency of an appeal succeeds to all the rights which have already accrued to previous landlord and that the purchaser is entitled to prosecute rent application on the ground of default which was available to the previous landlord. While coming to this conclusion, the learned Judge had also relied on the case of Adil Brothers referred to above.

9. The main question, however, is whether the respondent at all com mitted any default before filing the rent application by the previous landlord in the year 1968 So far as the rate of rent is concerned, both the Courts below have come to the conclusion that the previous landlord had been accepting rent @ Rs. 20 per month from the respondent, hence there was no justification for the appellant to insist on a higher rent of Rs. 45 per month. The respondent has produced several receipts issued by the former landlord showing that the rate of rent has been Rs. 20 per month.

10. On the point of default there is evidence of appellant Arshad Mehmood, who has stated that the respondent is in arrears of rent since the year 1962, and that he had made alterations etc. in the premises without his permission. On the other hand there is evidence of Rasheed, the attorney of the respondent, who stated that the Respondent had effected repairs and incurred Rs. 600 thereon. He further stated that he had asked the previous landlord to give adjustment of this amount towards future rent, but he kept him on promises and ultimately backed out from his promises and filed the ejectment application. It appears that both the Courts have not properly appreciated the evidence of the parties on the issue of default. The main question is whether the former landlord had allowed the respondent to effect repairs and promised to adjust the cost of repairs towards the future rent According to the written statement of the respondent, an amount of Rs. 560 was spent on repairs, whereas his witness Rasheed states that the amount spent on repairs was Rs. 600. Moreover Rasheed does not state anywhere that this amount was spent with the prior permission of the then landlord. The 7 trial Court has, therefore, wrongly concluded that by not cross-examining the witness Rasheed on the point of repairs, it shall be deemed that whatever was stated by the respondent's witness Rasheed, should be taken to be gospel truth. The statement of O. W. Rasheed in Examination-in-Chief is to be examined with reference to the pleadings of the parties. If the statement is not consistent with the written statement filed by the respondent, then in spit of omission to cross-examine the witness on this point, the statement of the witness cannot be taken at its face value. Moreover, respondent's witness Rasheed also admits that the then landlord had not accepted the respondent' claim of Rs. 600 as having been spent on repairs. Even the respondent did not put any question to the appellant in cross-examination that any repair were effected in the premises in question with the permission of the previous landlord, who had promised to adjust the same towards arrears of rent. It is, therefore, clear that the findings of both the Courts below on the point of default are based on misreading of evidence. The respondent himself did not appear in the witness-box to prove that he was permitted by the then landlord to effect repairs. Moreover, there is inconsistency about the amount spent on repairs. According to the written statement of the respondent, Rs. 560 were spent on repairs, while his attorney, who appeared as his witness vaguely stated that 'we spent Rs.-600 on repairs'. If the plea of the respondent regarding having spent any amount on repairs, with the permission of the previous landlord, is disbelieved, then the respondent shall clearly be responsible for default in payment of rent for the several months.

For the above reasons the judgments of the trial Court and the appellate Court are set aside, the appeal is allowed with costs and the respondent is directed to vacate the premises in question and hand over possession of the same to the appellant within three months.

M.B. A. Appeal accepted,

***

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.