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Before Haider Ali Pirzada, J
T. MOTANDAS THROUGH His LEGAL HEIR-Appellants
versus
ANIS AHMAD-Respondent
Second Rent Appeal No. 4 of 1982, decided on 3rd December, 1986.
(a) Civil Procedure Code (V of 1908)-
-- O. VI, R. 2-Pleadings, proof of facts in-No evidence can be led or looked into in support of a plea that had not been pleaded in pleadings.
(b) Civil Procedure Code (V of 1908)
O. VI, R. 2-Pleadings, proof of facts in-Essential for a plaintiff in any proceedings to plead ingredients of facts in pleadings on which he wanted to rely and in proof of which he may produce evidence.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
--Ss. 13 & 15-Civil Procedure Code (V of 1908), Preamble-Appli cability of C. P. C. to rent proceedings-Provisions of Civil Procedure Code though not applicable to proceedings under Rent Ordinance yet principles which are basis and foundation for administration of justice, held, would be applicable to these proceedings.
Siddik Muhammad Shah v. Mst. Saran and others A I R 1930 P C 57(1); Kanda v. Waghu A I R 1950 P C 68 ; Amir Ali v. Ali Muhammad P L D 1981 Kar. 150 ; Muhammad Hanif v. Mst. Sara P L D 1982 Kar. 182 ; Syed Muhammad Murtaza v. Rehman and others 1982 C L C 1728 ; Taiab A. Kapadia v. Agha Ziauddin Barni 1981 C L C 1267 and Jana Bai v. Mst. Ghulshan and another 1984 C L C 1061 rel.
(d) Evidence Act (I of 1872)-
-- S. 116-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Doctrine, that during existence of relationship of land ---lord and tenant, tenant was estopped from denying his landlord's title or from asserting that another person had a better title than landlord, held, had no application where landlord's title had expired or been extinguished or where there had been a fraud on part of landlord in execution of a lease or where tenant did not obtain or retain possession under lease or by virtue of it, or where he has been entitled by title paramount.-[Estoppel].
(e) Nest Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
-- S. 13-Discretion-Tenant guilty of raising false plea not entitled to exercise of discretion in his favour which is exercised on equitable and judicious considerations.
P L D 1967 Lah. 966 rel.
(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
-- S. 13-Default in payment of rent-Tenant guilty of raising false plea that property in question was evacuee and that Collector of rent was collecting rent on behalf of another person thus defaulting in payment of rent-Courts below exercising discretion in favour of tenant in arbitrary manner-Eviction of tenant ordered in circum stances.
(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
-- Ss. 13 & 15-Second appeal-Default in payment of rent-Con current findings existing to the effect that tenant was not a defaulter but this was not a pure question of fact-High Court, held, was competent to interfere with such concurrent findings in second appeal.
Muhammad Alam v. Noor Muhammad 1973 S C M R 606 and Ghulam Abbas Adamali Jeevaji v. N. Hassanali & Co. P L D 1984 Kar. 373 rel.
Mohsin Tayyabally for Appellants.
S. H. Rizvi for Respondent.
Date of hearing : 30th September, 1986.
Ghanshamdas and another have challenged the judgment of VIth Additional District Judge, Karachi dated 10-2-1982 whereby he affirmed the order of the X11th Senior Civil Judge and Rent Controller, dated 4-7-1974, by way of this second appeal.
The facts to the filing of this appeal are that the respondent is tenant in respect of a Bungalow No. 540, Garden East, Karachi at the monthly rental of Rs. 120. The father of the appellants filed an Eviction Applica tion No. 1992 of 1969 against the respondent on the ground of default in payment of rent for the period commencing from 1-1-1968 to 30-9-1969 amounting to Rs. 2,520 and also on the ground of personal requirement on account of division of property between his sons. The respondent filed written statement and stated therein that "the property being evacuee property, it is beyond the jurisdiction of the Controller and the late Motandas was receiving rent falsely claiming to be the authorised agent of Sundar Das but he refused to show that the said authority or even to give in writing that he collects rent on behalf of Sundar Das".
On the pleadings of the parties the Controller framed the following issues :-
(1) Whether the opponent committed default in payment of rent If so, what is the effect
(2) Whether the applicant requires the premises in dispute for his personal bona fide use
(3) What should the order be
The father of the appellants examined himself in support of the eviction application and the respondent examined himself in rebuttal.
The learned Controller, after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided both the issues in the negative and dismissed the eviction application vide order dated 4-7-1974.
The father of the appellants being aggrieved against the order dated 4-7-1974 filed First Rent Appeal bearing No. 351 of 1974 before the District Judge, Karachi, which was ultimately transferred to the Court of 1Vth Additional District Judge, Karachi. During the pendency of the appeal, T. Motandas died and the present appellants were brought on record.
The learned Additional District Judge, after taking into consideration the arguments advanced by the learned counsel for the parties, dismissed the appeal vide judgment dated 10-2-1982.
The appellants being aggrieved against the judgment dated 10-2-1982 of the IVth Additional District Judge, Karachi, have preferred this second, appeal on the grounds mentioned in the memo of appeal.
Mr. Mohsin Tayyab Ali the learned counsel for the appellants has raised the following contentions :-
(1) The entire case has been decided on materials which were not pleaded by the respondent.
(2) There is no logical conclusion to believe the defence set up by the respondent.
(3) The defence as set up by the respondent is to be believed, legally he is not precluded from tendering or praying rent.
(4) The learned lower Courts have erred in not appreciating the fact that by denying appellants' title the respondent had admitted that he had not paid rent to the appellants' late father and, therefore, he was stopped from leading evidence in justification of the default.
On the other hand Mr. S. H. Rizvi, the learned counsel for the respondent has submitted that the proceedings before the Controller were not proceedings in a suit. The deceased landlord admitted that the property was forfeited and it was restored to him in 1969 and after restoration no notice was served upon the respondent and under these circumstances the conclusion of the Courts below that the default is not wilful is in accor dance with the law and both the Courts below exercised their discretion in favour of the respondent. Lastly his submission is that there is a con current finding of fact which cannot be revised in second appeal.
Reverting to the first contention of the learned counsel for the appellants that the entire case has been decided un materials which were not pleaded by the respondent. The respondent's pleadings in this regard are contained in paras. 1, 2 and 3 of the written statement which are in the following terms :-
"(1) The application has been filed in wrong jurisdiction. The property in dispute is situated in New Town Police Station area which was within the jurisdiction of the VIth Civil Judge First Class and Con troller, Karachi.
(2) With reference to para. 1 of the application, it is submitted that the bungalow in question is the property of Sundardas who is an evacuee. The property being an evacuee property it is beyond the jurisdiction of Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959.
(3) The applicant was recovering rent of the said property falsely claiming to be the authorised agent of Sundardas but he refused to show the said authority or even to give in writing that he collects rent on behalf of Sundardas. As such the applicant is not entitled to collect rent. The opponent is not estopped in denying the applicant's authority as the opponent's action in payment of rent was caused due to the fraud and misrepresentation made by the applicant himself."
A perusal of the aforesaid pleading would indicate that (1) the appli cation was filed in a wrong jurisdiction, (2) property is the property of Sundardas who is an evacuee and the property being evacuee property it is beyond the jurisdiction of the Controller, and (3) the applicant was recovering rent of the said property falsely claiming to be the authorised agent of Sundardas but he refused to show the said authority or even to give in writing that he collects rent on behalf of Sundardas. As such the applicant is not entitled to collect rent. The opponent is not estopped in denying the appellant's authority as the opponent's action in payment of rent was caused due to the fraud and misrepresentation made by the applicant himself.
Evidence was however, led to establish the defence that in June 1967 the property was forfeited by Government. The Rent Collector used to collect the rent in the name of Sundardas Motandas. The Rent Collector did not come to collect the rent from him for a long time and when he contacted the Rent Collector, he told the respondent that since the property has been forfeited, he cannot receive the rent, after cancellation of the forfeiture, the rent will be accepted. The respondent also came to know that Sundardas is an Indian National.
It is well-established that no evidence can be led or looked into in support of a plea that had not been pleaded in the pleadings. It is well's established and salutary principle of law that in any civil proceedings it is essential for a proof to plead the ingredients of any facts in the pleadings on which he wants to rely and in proof of which he may produce evidence. a Order VI, rule 2, C. P. C. specifically provides for the same. It is produced below .---
"Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively, dates, sums and numbers shall be expressed in figures."
Though all the provisions of the Code of Civil Procedure are not applicable to the proceedings is eviction applications under the Ordinance, but the principles which are the basis and foundation for the administration of justice as this one incorporated in Order VI, rule 2, Code of Civil Procedure will undoubtedly be applicable to these proceedings also. The purpose in following the proceedings for framing of issues in eviction application is also intended to pinpoint the parties to the matter in con troversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudice if there is no specific pleading about certain matter the other side would have no opportunity to controvert the same and consequently no issue would be framed. In these circumstances the parties will be in the dark as to whether lead evidence in affirmative or in rebuttal and thus, some important matter in controversy be overlooked deliberately or inadver tently.
In Siddik Muhammad Shah v. Mst. Saran and other. (A I R 1930 P C 57(1)) which is the basic judgment on the subject it was held :-
"Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward."
The ratio of the decision in the above case was followed in the case of Kanda v. Waghu (AIR 1950 P C 68), Amir Ali v. Ali Muhammad (P L D 1981 Kar. 150), Muhammad Hanif v. Mst. Sara (P L D 1982 Kar. 182), Syed Muhammad Murtaaa v. Rehman arid others (1982 C L C 1728), Taiab A. Kapadia v. Agha Ziauddin Barni (1981 C L C 1267) and by me in the case of Jana Bat v. Mst. Ghulshan and another (1984 C L C 1061).
Such being the position, the inescapable conclusion follows that the lower Courts below committed the error of taking into consideration evidence which they ought not to have done so. Once the evidence in justification of the pleas that (i) in June 1967 the property was forfeited by the Government (ii) "I have contacted he told me that since the property has been forfeited he cannot receive the rent, after cancellation of the for feiture the rent will be accepted. I also came to know that Sundardas is an Indian National. I produce the order of Assistant City Survey Officer, Karachi, dated 23-6-1967. List of plots Exhs. 8 and 9-A, I also produce a letter of Assistant City Survey Officer Exh. 10 (Original seen and returned). I have contacted Motandas on telephone for the payment of rent, he replied that he will accept rent after cancellation of forfeiture and I never refused to pay the rent. The applicant never intimated to me about the forfeiture and I came to know only when the rent case was filed" is ruled out of consideration as already observed had not been pleaded, then the plea that survives or the defence that survives is that "(l) the property is an evacuee property and it is beyond the jurisdiction of Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, and (2) the applicant was recovering rent of the said property falsely claiming to be the authorised agent of Sundardas but he refused to whom the said authority or even to give in writing that he collects rent on behalf of Sundardas. As such the applicant is not entitled to collect rent. The opponent is not estopped in denying the applicant's authority as the opponent's action in payment of rent was caused due to the fraud and misrepresentation made by the applicant himself". Such a defence has proved that the eviction application was liable to be dismissed.
The father of the appellants produced extract of property A/1 showing that he was the owner of the property. The appellants' late father also produced photostat copy of the certificate of the Custodian. Evacuee Property as Exh. A/2. This certificate was issued under section 21 of the Evacuee Property Act (XII of 1957). The appellants' father also produced copy of compromises application and the order passed thereon dated 26-1-1963. This pertains to the rent case filed by him against the respon dent. It is an admitted position that the respondent had paid rent to the father of the appellants upto December 1967. In view of the evidence the defence of the respondent has not been established.
The respondent stated in his examination-in-chief that "the Rent Controller used to collect the rent in the name of Sundardas Motan. The Rent Controller did not come to me for a long time, and "when I contacted him he told me that since the property has been forfeited he cannot recover the rent till the cancellation of forfeiture". He also stated that since Sundardas was an Indian National, the property was forfeited by Govern ment. He produced the order of Deputy Commissioner Exhs. 8, 9 and 9-A. The order of the Assistant Survey Officer was produced by the respondent as Exh. 10. The respondent further stated that many times he contacted late Motandas on telephone but every time he was intimated that rent will be accepted. A little further the respondent deposed that "I have con tacted Motandas on telephone for the payment of rent, he replied that he will accept the rent after cancellation of forfeiture and I never refused to pay the rent. The applicant never intimated to me about the forfeiture and I came to know only when the rent case was filed".
It is pertinent to note that firstly the respondent did not take these pleas in his written statement and secondly when the late T. Motandas appeared in the witness-box, he did not suggest to him about these facts to him. On the contrary the trend of cross-examination shows that he refused to accept rent from him for the reason that the property was an evacuee and his son Sundarlal was in India or the Government had forfeited the property.
It is common ground that the relationship of landlord and tenant exists between the predecessor-in-interest the appellants and the respondent, that the respondent has not paid rent to the appellants for the period 1-1-1968 to 30-9-1969.
The learned counsel for the respondent contends that the appellant ceased to be the owner of the bungalow and the respondent was not bound to pay rent during the period of forfeiture.
The arguments appear to me to be wholly devoid of force. There is no iota of evidence on record to justify the conclusion that the Government ever threatened to evict either late Motandas the landlord or the respondent.
Assuming for the sake of arguments that the Government held out a threat directly or indirectly to evict the respondent, the question arises whether the threat could entitle the respondent to deny the landlord's title and to attorn to the paramount title. Section 116 of Evidence Act is in the following terms :-
"116. Estoppel of tenant; and of licensee of person in possession.-No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
This section accords statutory recognition to the well-known doctrine that during the existence of the relationship of landlord and tenant, the tenant is estopped from denying his landlord's title or from asserting that another person has a better title than the landlord. This doctrine has no application where the landlord's title has expired or been extinguished or where there has been a fraud on the part of the landlord in the execution of a lease, or where the tenant did not obtain or retain possession under the lease or by virtue of it, or where he has been entitled by title paramount. A person who is evicted by such is at liberty to deny his landlord's title for an eviction is equivalent to a termination of the tenancy. Even if a tenant is not actually evicted but if a judgment of eviction has been passed against him, a tenant is justified in treating the relationship of tenancy at an end and at liberty to give a new and rightful character to his possession. The eviction need not be actual but may be only symbolic. In other words, if there is notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant by the real owner, which would bring to an end the relationship of landlord and tenant which is protected under section 116 of the Evidence Act.
The respondent in the present case was neither evicted from the premises occupied by him nor was a judgment of eviction ever passed either against the appellants' predecessor-in-interest or against the respondent. It may be that a suit or eviction application might be brought by the para mount landlord, but that fact alone could not justify the respondent in denying the title of the appellant and attorning to the Government. The language of section 116 of the Evidence Act is clear and unambiguous and the respondent was precluded during the continuance of the tenancy from denying that the appellants' predecessor-in-interest had at the beginning of the tenancy title to let the premises out to him.
It is an admitted position that the premises in dispute was forfeited by the Government and the same was withdrawn by the Government by an order dated 16-4-1969. In this view of the matter the defence taken by the respondent does not survive.
The respondent deposed in his examination-in-chief that he came to know only when the rent case was filed. I have perused the Exhs. 8, 9, 9-A and 10. The respondent obtained these copies on 12-11-1971, that is, much after the filing of the documents. I have perused the order sheet dated 4-5-1972 as well as the rent account filed by the respondent. These documents would show that the respondent did not tender the rent to late Motandas or deposited with the Nazir of the Controller.
A perusal ' of clause (i) of subsection (2) of section 13 of the 1959 Ordinance shows that the initial onus is on the landlord to prove that the tenant has not paid or tendered rent due from him within the period allowed by the law and that under the circumstances it is a fit case to order his ejectment and to obtain the relief for which he has sued.
In P L D 1967 Lah. 966 it was held that;
"In exercising the discretion the Controller must not act arbitrarily, on humour or caprice, perusal likes and dislikes or irrelevant and extraneous considerations. He is bound to act fairly in accordance with commonsense, justice and equity."
Mr. S. H. Rizvi has contended that order of eviction should not be passed against the respondent even if he was held defaulter. His conten tion is that eviction of tenant on ground of default is discretionary with the Controller and in the instant case both the Courts below have exercised their discretion in favour of the respondent. I am afraid, this contention cannot be evalued in favour of the respondent. A tenant guilty of raising false plea is not entitled to exercise of discretion in his favour which is exercised on equitable and judicious considerations. The view of the learned District Judge as well as of the Controller on the issue of default was equally unjustified, arbitrary and unjust as well.
The respondent had raised a false plea that the property was evacuee and late Motandas was collecting rent on behalf of Sundar. It is an admitted position that late Motandas filed eviction case against the respon dent which was ultimately compromised. The other plea which was raised that late Motandas and the Rent Collector informed him that the property in dispute was forfeited by the Government and they would collect the F rent on restoration of the property. The respondent deposed in his examination-in-chief that he came to know about the forfeiture after the filing of the rent case. The respondent came up with false pleas as such he is clearly disentitled to claim exercise of discretion in his favour. I am of the view that to exercise discretion in favour of such a tenant would be tentamount to encouraging false pleas. The omission on the part of the tenant in payment of rent by circumstances beyond his control only would justify exercise of discretion in his favour. In view of this, it seem that the Courts below have exercised their discretion in favour of the G respondent in an arbitrary manner and could justify interference by High Court in second appeal.
The last contention of the learned counsel for the respondent is that this Court cannot interfere in second appeal as this is a pure question of fact.
On the other hand Mr. Mohsin Tayyabally learned counsel for the appellants has submitted that the question whether there was a default within the purview of the repealed Ordinance was a mixed question of law and fact and the High Court could, therefore, displace the concurrent find ing of the Courts below.
I have perused the impugned order and the judgment and I find that there is a concurrent finding to the effect that the respondent is not a defaulter but this is not a pure question of fact. Hon'ble Supreme Court laid down the following decision in the case of Muhammad Alam v. Noor Muhammad (1973SCMR606) :-
"We have heard the learned counsel for the appellant and read the N evidence placed on record by the parties. The question whether there was default with the purview of section 13 of the Rent Restric tion Ordinance, 1959, was a mixed question of law and fact. The High Court could, therefore, displace the concurrent findings of the Courts below on this point."
In the case of Ghulam Abbas Adamali Jeevaji v. N. Hasanali & Co. (P L D 1984 Kar. 373) my learned brother Nasir Aslam Zahid held:
"I am here very humbly add that the finding on the point whether rent of a particular period has or has not been paid is, however, a finding of fact but the question whether it would amount to a default under section 13 of the 1959 Rent Ordinance for which the tenant is liable to be ejected is a mixed question of law and fact. I may also observe that it is not every finding of fact which is immune from interference in second appeal by the High Court. There can be concurrent findings, which may not be based on any evidence or which might be perverse, in which case the High Court can and do interfere with such concurrent findings."
I agree with the above observations of my learned brother. In view of the above decisions the objection of the learned counsel for the respondent that in this case the point of default cannot be disputed is overruled.
For the reasons stated above and in the circumstances of the case, I am of the opinion that there is default in the payment of rent for the period 1-1-1968 upto 30-9-1969, the rent for this period was deposited by, the respondent with Nazir of the Controller after passing of tentative rent order on 4-5-1972 when the same should have been paid within the time, specified in section 13(2)(i) of the Repealed Ordinance.
As a result IInd Appeal No. 40 of 1982 is allowed, the order dated 4-7-1974 of the Controller dismissing Rent Case No. 1992 of 1969 and judg ment dated 10-2-1982 of the learned VIth Additional District Judge dismissing Rent Appeal No. 351 of 1947 are set aside. The eviction application is allowed and the eviction order on the ground of default is granted. The respondent is allowed four months time to vacate the premises.
M. Y. H./5080/K Appeal allowed
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