MUHAMMAD SIDDIQ Versus ABDUL HAMEED

1. This appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) .arises out of the following facts.

2. Flat No. 1 on the top floor of Hundaldas Building Thattai Compound, Karachi, was transferred to the respondent vide P. T. O. No. 07442 dated 8th December 1960. The respondent served the present appellant with notice on 28th December 1961, intimating the fact of transfer of the ,property in his favour and demanding a rent at the rate of Rs. 55 per month, claiming that the rent at that rate had been assessed by the Municipal Committee vide its order dated 19th September 1961. The respondent applicant claimed that in spite of the notice the appellant did not tender -or pay the rent as demanded and, therefore, he was liable to ejectment. Another ground taken was that he needed the premises for his personal bona fade requirements as the quarter in his occupation in Korangi Township was insufficient for his personal needs. The respondent had filed ejectment application on these two grounds on 29th October 1965.

3. The appellant in his written statement contended that the rent of the ;flat in dispute originally assessed by the K. M. C. was at the rate of Rs. 16 per month. Later it was assessed at Rs. 24/31 per month and that he was .always ready and willing to pay the rent at the later assessment. It was alleged that the rent at that rate had been offered by the deceased wife of the appellant but it was not accepted by the landlord. The contention .of personal bona fide need was also denied. It was alleged that he wanted -to dispose of the flat after evicting the family of the appellant. It wag also -contended by the appellant that notice under section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) was not served.

4. On these pleadings of the parties following issues were framed by the learned Rent Controller

5. "(1) Is it a fact that the disputed premises was assessed at Rs. 24/31 per month till the property was transferred to the applicant? If so its effect?

(2) Was the opponent liable to pay rent at Rs. 55 as assessed by the, applicant ?

(3) Was any valid and proper notice of demand served on the opponent? (4) Is it a fact that the applicant refused to accept rent at Rs. 24.31 ?

(5) Has the opponent been guilty of non-payment as defaulter?

(6) Is the applicant entitled to possession on account of alleged personal needs?

(7) Is the application premature?

(8) What is the upto date amount of rent due from the opponent and is. the opponent entitled to any refund or adjustment?"

6. The learned Rent Controller, vide his order dated 15th February 1969. came to the conclusion that the assessed rent of the premises in dispute was. Rs. 24/31, that the appellant not having tendered even that lent was liable to be ejected. The issue with regard to the service of notice under section 30 of the Act as well as the issue with regard to the personal bona fide need were decided in favour of the landlord. An appeal was preferred by the appellant before the first appellate authority and the learned second Additional District Judge, Karachi, vide his order dated 2-10-1970 came to the conclusion that the proper rent for the premises in dispute was Rs. 16 and that the tenant/appellant had not paid or tendered even that rent and, therefore, he was liable to be ejected. It was also held that notice under section 30 of the Act was not rendered invalid because of demand of excessive rent at the rent of Rs. 55 per month. The result was that the appeal was dismissed.

7. The learned counsel for the appellant has contended that the demand-, of rent at the rate of Rs. 55 per month was illegal because after coming into force of the Municipal Administration Ordinance, 1960, the Municipal Committee was not empowered to assessee rents on a fresh scale in view of the fact that the saving clause as contained in subsection (2) of section 4 of the Municipal Administration Ordinance saved the existing. assessment only and till such time as the West Pakistan Municipal Committee (Buildings and Land Tax) Rules, 1962, were not promulgated the Municipal Corporation of Karachi did not have any legal authority to re-assess any property in the city of Karachi. The Municipal Administration Ordinance had come into force in the then Federal Capital with effect from 16th April 1960, but the rules though promulgated on 28th June 1962, were not made applicable to Karachi till 17th May 1963. In support of this contention the learned counsel has relied upon Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 856) and Punjab Association Club v. Corporation of Lahore (P L D 1963 Lah. 380).

8. The learned counsel for the respondent does not contest this legal position but has asserted that a notice under section 30 of the Act is not rendered invalid by the mere fact of demand of excessive rent. He relies upon Mazhar Ali Azhar v. Inzarul Islam (P L D 1971 Lah. 104). Tahir Khairullah v. Zarifun nisa (P L D 1968 Kar. 182). The later case had also considered the earlier rulings on the issue, which were to the contrary and are contained in Muhammad Sabir v. Abdul Malik (P L D 1967 Pesh. 96), Sardar Begum v. Sarfroz Khan (P L D 1967 Pesh. 177) and Fakir Muhammad v. Muhammad Yasin (P L D 1964 Lah. 686) and it was observed that `it could not be reasonably concluded that merely because excessive rent was claimed by the landlord, the tenant becomes relieved of the liability to pay any rent'. The learned counsel, therefore, insists that the tenant was under all circumstances liable to pay rent at the of Rs. 16 per month. This submission of the learned counsel reflects the correct legal position, that though the assessment made by the K. M. C. in the absence of West Pakistan Municipal Committee (Buildings and Land Tax) Rules, 1962, was not valid. the notice of demand of rent under section 30 of the Act, was not rendered invalid by the mere fact that excessive rent was demanded through it. The tenant was always liable to tender or pay the legal rent, which in the present case was the rent payable immediately before the transfer of the property in favour of the landlord. According to the learned counsel for the respondent, the tenant not having done so, is liable to ejectment. I must now proceed to find if proper tender of rent was made or not.

9. On this question the two Courts below have come to the conclusion that no tender or payment of rent was made even at the rate of Rs. 16 per month. The learned Rent Controller made the following observations in this regard

10. "But in spite of that there was no evidence on record to suggest that opponent had paid or tendered rent to the applicant at the rate fixed by the Deputy Settlement Commissioner at Rs. 24/31 p.m. or bye the K. M. C. authorities or by the Excise and Taxation Authorities. The mere assertion of Ghulam Muhammad that his father had tendered rent to the applicant at the rate assessed by the Excise and Taxation Authorities was not enough. This was not even disclosed and asserted by the Opponent Muhammad Siddiq in his written statement. According to Ghulam Muhammad son of opponent neither he nor his father had sent rent by money order or by cheque at the rate assessed by the Excise and Taxation Authorities or by the Deputy Settlement Commissioner. Karachi."

11. The appellate authority also came to the same conclusion that no tender of rent was made and its observations are to the following effect :

12. "The appellant in his written statement has stated that he was willing to pay the rent at Rs. 24.31 per month fixed by the Settlement authorities and that his wife had once tendered the rent to the respondent which he refused. The appellant has not examined himself but his son was examined for him and he has stated that his mother did not tender the rent and he tendered the rent. Thus the appellant has failed to prove the oral tender to the respondent ; hence it is clear that the appellant wilfully failed to pay any rent in spite of the legal notice within the statutory period and hence he was liable to ejectment."

13. Unfortunately these observations are not supported by the facts on record. But before I deal with this point I may mention that the admitted position is that the opponent Muhammad Siddiq had, during the proceedings before the learned Rent Controller and the first appellate authority, resided in Chittagong, and one of his wives and her children were living in -the disputed house. P. W. Ghulam Muhammad son of Muhammad Siddiq, had appeared as his father's witness before the learned Rent Controller. This absence of the appellant explains for the averment made in the written statement that it was his deceased wife who had tendered the rent to the landlord. The variation between the averments in the written statement of Ghulam Muhammad before the learned Rent Controller is, therefore, to be viewed in this context and as such it would be difficult to term them as contradictions. In examination-in-chief Ghulam Muhammad has stated that he tendered the rent to the applicant at the rate of Rs. 16, but it was refused. In the next sentence be says that the applicant demanded rent at the rate of Rs. 45 and that 'we tendered him rent but he hid not accept the rent'. In cross-examination again, he says that the rent was tendered orally 'but it was refused.

14. If this statement had stood alone it could be possible to argue that by itself it could not be relied upon for a finding of proper tender of rent. ,But the landlord has himself admitted in cross-examination that 'opponent had tendered rent at Rs. 16 per month which I refused to accept'. This admission proves the case of the opponent/appellant that the rent at the rate of Rs. 16 was duly tendered but it was refused.

15. Section 13 (2) (i) enjoins upon the tenant to pay or tender rent to the landlord. If a landlord chooses not to accept the rent so tendered, the tenant cannot be made to suffer for such conduct on the part of the landlord. It would not be correct to hold under such circumstances that .default had been committed. The tenant stands absolved of his responsibi lity under the law when he tenders the rent due. In the present case, the -stand of the tenant is proved not only from the statement made on oath ;by the son of the tenant but also because of the admission made by the -landlord in cross-examination. There is no doubt that the second explana tion to subsection (2) of section 13 states that 'rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area . . . . . . . shall be deemed to have been duly tendered. This explanation merely names two of the modes of proper tender of rent. 1 does not mean that any other mode of tender of rent is excluded by virtue of this proviso. If rent were tendered through money order or by, deposit with the Rent Controller that would be an absolute proof of such! tender. But if the tenant can prove independently that the rent was duly tendered, by whatever mode it was so tendered, the tenant has done his duty ,under the law.

16. In view of the above finding I hold that no default has been committed by the tenant and, therefore, I would set aside the finding of the lower Courts on this issue.

17. On the question of personal bona fide need the landlord had to show that he was not occupying any other residential building suitable for his needs in the same urban area. In his ejectment application the landlord .respondent stated that he is living in a quarter in Korangi Township. In his statement before the Court he has stated that he is living in a two room quarter allotted to him by the K. D. A. in Korangi. The flat in dispute ..also consists of two rooms. Admittedly the landlord is occupying residential building in the same urban area. The onus to show that that building was not suitable for his requirements lay entirely upon the landlord., Not only chat he has also to show that the premises, from which he is seeking to eject tenant would provide him better accommodation if not entire suitable than the one already in his occupation. He has not discharged this onus 'because he has not been able to show that the flat in dispute would provide ,him, in any way, better accommodation than the quarter he is occupying ;in Korangi. The law does not lay any converse responsibility on the tenant to show that the house occupied by the landlord in the same urban area is suitable for his requirements. But in spite of that the tenant has, through cross-examination, shown that the flat in dispute has similar accommodation, ;and no better than the quarter already in occupation of the landlord.

18. In view of these findings I would accept the appeal and set aside the orders of the Courts below. Parties are left to bear their own costs.

19. S. A. H. Appeal accepted.