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Before Abdul Razzak A. Thahim, J
Haji AHMAD HAJI ABDUL REHMAN--Appellant
versus
Late Syed NAZIR HUSSAIN SHAH through Legal Heirs--Respondent
First Appeal No.415 of 1983, decided on 22nd April, 1987.
(a) Sind Rented Premises Ordinance (XVII oaf 1979)--
---Ss. 15 & 21(1)--Sind Chief Court Rules, R. 331--Appeal against ejectment order--Limitation for--Party should be intimated by office about delivery date of copy of order of Court intended to be appealed against--In absence of such intimation on behalf of office, time for obtaining copy would start from date when application for obtaining copy was made and end when copy was delivered--Appeal filed against such order within 30 days after delivery of copy of such order, would be in time.
P L D 1966 S C 182; P L D 1984 S C 332; 1975 S C M R 157; P L D 1982 Kar. 5_32; Mst. Safdari Begum and 2 others v. Amir Ali Tabrezi 1985 C L C 836 and P L D 1984 S C 208 ref.
(b) Sind Rented Premises Ordinance (XVII of 1979)--
---S. 15(2)(ii)--Default in payment of rent--Proof--Where case was filed against original tenant during his lifetime and default in payment of rent was also alleged to have been committed by him during his lifetime, legal heirs of such tenant in possession of rented premises after death of such original tenant, held, could not be liable for default, if any, committed by their predecessor during his lifetime.
P L D 1966 S C 182 and 1986 S C M R 1873ref.
(c) Sind Rented Premises Ordinance (XVII of 1979)--
---S. 15(2) (iii) (b)--Using of residential premises for commercial purpose--Proof--In absence of any evidence on record that premises in dispute, let out for residential purposes has ever been used for commercial purposes either by original tenant or by his legal heirs after his death, Rent Controller, held, rightly decided that premises was not being used for purposes other than that for which same was let out .
(d) Sind Rented Premises Ordinance (XVII of 1979)--
---S. 15(2)(iv)--Impairing value and utility of premises--Proof--No evidence on record available to show that tenants have damaged building .n dispute or have impaired value and utility thereof--Merely by carrying out certain necessary repairs of premises by tenant which according to rent agreement was their responsibility to do, tenants held, could not be said to have impaired value and utility of premises.
(e) Sind Rented Premises Ordinance (XVII of 1979)--
---Ss. 15 & 21(1)--Appellate jurisdiction, exercise of--Order of Rent Controller based on evidence on record and passed after giving cogent reasons, held, could not be interfered with by High Court in exercise of Appellate jurisdiction.
Muhammad Sadik for Appellant. Usman Ghani Rashid for Respondent. Date of hearing: 29th March, 1987.
This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 against the order dated 6-2-1983 of XII Senior Civil Judge and Rent Controller, Karachi whereby he dismissed the rent case of appellant.
The facts are that Haji Ahmed landlord filed rent case No.1943/1971 against the respondents on the grounds of default, additions and alterations and utilising the premises for non-residential purposes and carrying on business there. The Rent Controller on the pleadings of the parties framed following issues:-----
(1) Whether the opponent has committed default in payment of rent
(2) Whether the premises is being used other than for which it was rented out
(3) Whether the opponent has committed such acts as are likely to impair the value and utility of the premises
(4) What should the order be
The Rent Controller by impugned order decided all the issues against the appellant and dismissed the rent case. Before the Rent Controller appellant examined himself only while respondent No.2 examined himself, and Iqbal Hussain.
Mr. Sadiq, for the appellant raised the following contentions:--
(1) Default has been committed from June 69 to July, 1971 amounting to Rs.520
(2) The premises were given for residential purposes but respondent are doing their business there.
(3) In case of death of the tenant his heirs are liable for default. In this connection reference was made to P L D 1966 SC 182. Reference was also made on the point of default to P L D 1984 SC 332.
Mr. Usman Ghani Rashid, for the respondents raised a preliminary objection that appeal is barred by limitation therefore it is liable to be dismissed. In this connection he referred to the cases reported in PLD 1984 SC 208 and 1975 S C M R 157. On the other hand Mr. Sadiq has cited 1985 C 1, C 836. It was also argued by Mr. Usman Ghani that it was an old case, therefore old law will apply and cited case reported in P L D 1982 Kar. 532.
The impugned order was announced by Rent Controller on 6-2-1983 and application for copy was made on 8-2-1983. Fees were estimated on 12-2-1983 and fees deposited on 14-2-1983. A copy of order was ready on 19-2-1983 and on same day stamps were supplied. The order was compared on 20-2-1983 but delivered on 21-2-1983. Appeal a/s 21 of the Ordinance was presented in this court on 21-3-1983. Appellant had to file appeal within 30 days. The contention of Mr. Usman Ghani Rashid is that appellant should have filed appeal on 20-3-1983 and is barred by limitation. In this case estimated cost for copies was worked out on 12-2-1983 and cost paid on 14-2-1983. Under Civil Court Rule 323 (1) appellant is required to deposit amount as well as requisite stamps within seven days from the date of communication. In the present case cost was paid on 14-2-1983 and stamps were supplied on 19-2-1983 i.e. within stipulated time of seven days. A copy of order was compared and made ready on 20-2-1983 but delivered on 21-3-1983. The contention of Mr. Usman Ghani Rashid is that appellant is not entitled to get benefit of one day as he was bound to receive copy on 20-2-1983, therefore appeal is barred by limitation. After the compliance of all the requirements and in case of compared copies, the certification of the copier has taken place, the Rule 331, requires that a list of copies ready for delivery shall be pasted on the Notice Board of the Record Keeper's Office. Under Rule 328 the copy shall not be certified to be true copy unless compared and signed by the duly authorised member of the regular establishment. Moreover under Rule 331 of the Sind Chief Court Rules office has to notify the party about the date when copy would be ready. If such notice is not given then time for obtaining copy shall start when the application for copy was made and end when the copy was delivered. In this connection reference can be made to the case of Mat. Safdari Begum and 2 others v. Amir Ali Tabrezi reported in 1985 C L C 836. In the present case certification was made on 20-2-1983 and promptly on the next day copy was collected. The facts of the case reported in P L D 1984 SC 208 are different as there was long interval in the certification and delivery and the copies were not collected with due diligence. Even otherwise if period from delivery and certification of copy which is one day is counted the appeal is within time. The judgment was delivered on 6-2-1983. If that day i.e. 6-2-1983 is excluded then for the presentation of the appeal in this Court appellant has time as under:------
7-2-83 ----------One day
22-2-83 to
28-2-83 ---------- Seven days
1-3-83 to
21-3-83 -----------Twenty-one days
------------
Total: 29 days
In view of above, I hold that the appeal is within time.
Now I come to the issues framed by the Rent Controller. All the Issues decided against the appellant. Issue No.l is with regard to the default in payment of rent. It is an admitted position that rent case was filed during the life time of Syed Nazir Hussain Shah and default was also alleged to have been committed during his days. Subsequently his legal heirs i.e. Begum Syed Nazir Hussain Shah and son Intizar Hussain Shah were impleaded as parties and amended rent application was filed on 22-3-1973. Before the Rent Controller appellant Haji Ahmed examined himself while respondent No.2 Intizar Hussain examined himself and three other witnesses. Hajl Ahmed in his evidence Ex.5 has alleged that respondent did not pay the rent from June, 1969. In his cross-examination he has admitted that he is a 'Mutawali'. Sometime rent was paid after a month, sometime after two months and sometime after six months. He used to visit respondents' residence and collected the rent from them and he used to send them receipts. He has not produced any document or counterfoils of receipt book. Respondent No.2 Intizar Hussain Shah in his affidavit stated that his father died in the year 1972 who was himself dealing with rent matters during his life time. After the death of his father he was able to lay hands on various receipts issued by the appellant in respect of the rent. Three coupons were also traced out by him. He produced the receipt and money order coupon in original. He has also denied the other allegations in respect of the change in the premises or using for any business purpose.
P.W. Iqbal Hussain witness of the respondent in his evidence has stated that from the day Syed Nazir Hussain Shah occupied the said flat, several signboards were installed at his residence. Patients used to call on Nazir Hussain Shah for consultation and diagnosis. He has also stated that several visitors also used to call on him for astrology Maktaba and Magazine. The said practice continued during his lifetime. He has stated that there is no change in the pattern of the premises. There is no dispute that premises are exclusively being used for that purpose. Family is residing there.
It is an admitted position that there was practice according to which rent was collected in lump sum and default was allegedly committed during the lifetime of- Syed Nazir Hussain Shah.
Mr. Usman Ghani Rashid has referred to the case reported in P L D 1966 SC 182 and submitted- that legal heirs after the death of the tenant are liable for the default. The circumstances of this case are different as practice of collecting rent in lump sum is existing here and during his life time Syed Nazir Hussain Shah sent the rent through money order which the landlord refused. In this situation the respondents cannot be held responsible for the default as alleged. Moreover Mr. Sadiq has himself relied upon a case Zakaullah and B another v. Safdar and others reported in 1986 S C M R 1873 whereby leave to appeal was granted to consider the point whether the legal heirs of the tenant are liable for the default committed by the original tenant.
ISSUE NO. 2:
According to the agreement executed by the late Nazir Hussain Shah Hakim Ex.6 a residential house was let out on rent to late Nazir Hussain Shah. According to agreement the repairs of the house were the responsibility of the tenant. It is nowhere in the agreement that this house will be only for the residential purpose. The appellant has not examined a single witness to show that this premises was being used for commercial purpose. The case o late respondent was that he was doing some consulting work right from the inception of C tenancy in the year 1965. Prior to this no rent case was filed on this ground and there is no evidence as appellant has not produced any witness to support his contention. The photograph and other documents cannot prove his case. Moreover Nazir Hussain Shah died in the year 1972 and after that there is no evidence that his heirs are using these premises for business. The Rent Controller has rightly decided this issue against the appellant.
ISSUE N0. 3:
There is no evidence that respondent have damaged the building which has impaired the value and utility of the premises. The case of the respondents is that they have carried out necessary repairs. It is clear from the agreement Eat.6 that it was the responsibility of the respondent to carry out the repairs and that respondent will bear the expenses and will of demand anything. This agreement has been admitted to have bee executed. The case proceeded and evidence recorded under the pros lure laid down under Sind Rented Premises Ordinance, 1979, therefore, question of application of old law in procedure does not arise.
For the reasons stated above, I am of he view that the Rent Controller has rightly dismissed the rent case of the appellant and his order calls for no interference as such; appeal is dismissed.
H . B . T . / H-29 / K Appeal dismissed
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