MAH BIBI Versus HAMEEDA BEGUM

This is a landlord's second appeal challenging the decision of the learned Additional District Judge, Karachi, whereby the case was remanded to the Rent Controller for, fresh decision after giving opportunity to the tenant, respondent herein, with regard to non-compliance with the order for deposit of current rent.

2. Briefly stated, the facts are that the appellant is the landlord and the respondent is his tenant in respect of fiat No. 1 in the building known as Bibi Manzil, Moosaji Street, Ramswami, Karachi at the monthly rental of Rs. 15.

3. On 14-9-1967, the appellant filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the `Ordinance') for ejectment against the respondent on the ground of non-payment of rent with effect from 1-4-1964 up to date of institution of proceedings. In her written statement the respondent admitted the fact of non-payment of rent but pleaded that it was not wilful, inasmuch, the same was delayed on account of financial difficulties faced by her. There after, on 12-1-1968, the learned Rent Controller passed an order under sub section (6) of section 13 of the Ordinance directing the respondent to deposit by 16-2-1968, arrears of rent due uptodate and continue to deposit future rents before 15th of each calendar month.

4. The admitted facts are that the respondent deposited the entire amount of arrears of rent together with rent up to the month of March 1968 within the period fixed in the order. But since the rent for the month of January 1968 which was included in the total sum deposited, was deposited on 15-2-1968, that is on 15th rather than before 15th of the month, the appellant moved by his application of the same date, for striking off the defence of the respondent. Before the question of respondent's defence being struck off could be decided, she made yet more defaults by not paying the rents for the months of June, July, and August 1968. Accordingly, two more applications for striking off the respondent's defence on the basis of the subsequent defaults were submitted by the appellant. It may, here be mentioned that the respondent filed objections to only the first application alone and no attempt was made by or on her behalf to offer any explanation with regard to the rest of the defaults. As regards the first default, the respondent pleaded her inability to deposit rent on 15-2-1968, on account of sudden illness, which she supported with a medical certificate. It is important to note that in her affidavit containing the explanation for delay, the respondent made an admission that on the next day she was able to instruct her brother to deposit the rents.

5. The learned Rent Controller after considering the explanation and hearing the counsel for the parties came to the conclusion that the first default was condonable as it was for one day only, due to illness; however, holding the further defaults to be without reasonable cause, struck off the respondent's defence by his order dated 30-9-1968, and directed tier to hand over the possession of the demised premises to the appellant. The respondent however, instead of appealing, moved the Rent Controller for setting aside the said order dated 30-9-1968, by her application dated 11-11-1968. In the supporting affidavit, the respondent tried to explain her inability to deposit the Tents for the mouth of June, July and August 1963 by saying that due to her illness, she was unable to contact her Advocate or direct any person to deposit the rent. The learned Rent Controller summarily dismissed this application as the order for striking off defence was passed on merits and the request for its setting aside was, in any case, submitted after the lapse of more than one month. It was then that the respondent filed a belated appeal, on 4-12-1968, alongwith an application for condonation of delay. There was thus delay of two months and three days in presenting the appeal.

6. At this stage the respondent came up with an entirely new plea, to the effect that she was unable to deposit rent for the months in question as her leg was broken in an accident and she was confined to bed. She further said that as there was no one else to look after her case, she paid a sum of Rs. 60 being the rent for four months to her Advocate who misappropriated the amount and did not deposit the same in Court.

7. The learned Additional District Judge, Karachi, who came to decide the appeal condoned the delay and as regards the order in appeal took the view that the respondent was not given opportunity to explain the circumstances in which the alleged default was committed, for, in the nature of things, it was not expected that the same Advocate who was alleged to have misappropriated the rental amount would have stated that as the ground to explain the default. Accordingly the learned Judge allowed the appeal by the impugned judgment and remanded the case to the Rent Controller for a fresh decision as stated above, after affording the respondent an opportunity to file objections in respect of application for striking off defence.

8. In support of the appeal. Mr. Sabir Hussain Rehmani, the learned counsel for the appellant, first contended that the respondent could root be allowed to urge the new and inconsistent ground in support of her claim that the default was due to fraud committed by her Advocate, as it was totally inconsistent with her previous stand. He next contended that the order of remand was not justified as it was based on the wrong assumption by the learned Additional District Judge that the same Advocate continued to appear for the respondent before the Rent Controller and therefore the real facts could not come to light. The learned counsel finally criticised the condonation of the enormous delay in filing the appeal without even an attempt to explain each day's delay.

9. Mr. Ghiasuddin Baloch, learned counsel for the respondent, however, raised a preliminary point regarding the maintainability of this appeal, which must be disposed of first. It was his contention that under section 15 (1) of the Ordinance an appeal has been provided against orders passed under specified sections of the Ordinance, namely, under sections 4, 10, 12 and 13. Since, the order impugned in this appeal is an order of remand, it cannot fall within the ambit of any of the aforesaid sections, the learned counsel argued, and therefore no appeal lay against such an order.

9-A. The learned counsel sought to support this contention with the dictum laid down in the Supreme Court cases of Messrs Kandawala & Co. v. Fayyazuddin and others (1969 S C M R 720) and Ibrahim v. Muhammad Hussain (P L D 1975 S C 457). But in my view the contention has no merit. The two cited cases relate to the interpretation of section 15 (1) of the Ordinance which concerns first Appeal against the order of the Rent Controller to the District Judge. The provisions of section 15 (1) of the Ordinance are in the following terms:-

"Any party aggrieved by an order made by the Controller under notions 4, 10,12 and 13, may within 30 days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed is situated."

It was with reference to language of the above provision, that their Lord ships of the Supreme Court held in the second case cited above that section 15 (1) of the Ordinance postulates an appeal in relation to a matter which falls within the purview of the said section and that a matter which is merely incidental or eo-lateral to the dispute and which has been disposed of by interlocutory order, cannot be challenged by way of appeal under the said provision. Similarly, on the same principle in the first cited case, it was held that a decision on the preliminary issue on the question of relationship of landlord and tenant, being a decision on the preliminary issue, was not appealable as the word `order' in section 15 of the Ordinance envisages only those orders which the Controller is empowered by the Ordinance to make. However, in the case of a second appeal, to the High Court under the Ordinance the relevant provision is subsection (4) of section 15 of the Ordinance which is in the following terms :-

"Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause `A' of subsection (1) and if the appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days, from the date of order of the appellate authority or, as the case may be, of the Controller prefer an appeal in writing to the High Court and the decision thereof shall be final."

10. The keyword, for Interpreting the scope and right of appeal in regard to appellate orders are the words `an order' appearing in the opening part of the above said subsection. Whereas the right of appeal under sub section (1) of section 15 is confined to orders passed under the specified sections of the Ordinance by the Controller, under the subsection under consideration, `any order' passed on appeal is subject to a further appeal to the High Court. There can be no controversy that the order of remand passed in this case squarely falls within the ambit of the term `an order passed on appeal', for, in an appeal against the order of the Controller the District Judge would be competent to pass an order of remand. It, there fore, follows that the correctness of such an order, would obviously be subject to an appeal under subsection (4) of section 15. Even otherwise to accept the argument of learned counsel for respondent would lead to irrational results. During the course of argument I had put it to the learned counsel whether, if the District Judge in this case had dismissed his appeal, would the respondent have had a right of appeal to the High Court? His obvious reply was in the affirmative. It would be therefore absurd to hold that while `an order' passed by the District Judge against one party would be appealable, if the order is passed against the other, it would not be appealable.

11. Now turning to the merits, I find great force in the contention, that the respondent cannot be heard at the appellate stage to explain away an admitted default by adopting an explanation put forward for the firs time, when the respondent having had opportunity to do so in the trial B Court failed to avail the opportunity. I cannot accept the argument of the learned counsel for the respondent that she was deprived of a chance to explain that the default on her part was for reasons beyond her control, and that therefore the remand order was eminently just and proper in the circumstances of the case. I think that there was hardly any justification for such an order. The learned Additional District Judge, was exercising appellate jurisdiction and the general principle is that the appellate Court C should not travel outside the record of the lower Court. The powers of the appellate authority under the Ordinance are set out in section 15 (3) of the Ordinance which is in the following terms:

"(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as ft thinks fit either personally or through the Controller."

Thus it will be seen that the learned Additional District Judge could, if there were sufficient grounds for such action, hold further enquiry himself or through the Rent Controller and then decide the appeal, instead of setting aside the order. By this I may not be understood to say that the Appellate Authority has no power of remand, for, such power is a necessary incident of appellate jurisdiction. The enormous time taken in bringing the dispute in ejectment cases to conclusion is simply appalling and every effort should be made to avoid unnecessary multiplicity or protraction of such proceeding. In my view the case set up by the respondent in appeal was absolutely untenable, if a good look at the record of the case is taken. The significant facts, relevant in this regard, are that in her first explanation as contained in her counter-affidavit dated 18-6-1968, the respondent stated that on 14-2-1968, the last day for depositing the rent for January 1968 she was suddenly taken ill and on the next day she was able to deposit the rents through her brother. As regards the rest of the defaults, as stated above, she filed no objection. The plea now advanced by her at appeal stage is that she was defrauded by her counsel upon whom she depended in absence of any other person to assist her in pursuing the matter. Now the admitted position is that before filing appeal she attempted to have the order of ejectment set aside in the Court of Rent Controller. In this application which was supported by the affidavit of the respondent, nothing about the Advocate having kept away the rent amount for 4 months finds mention. On the contrary in para. (2) of the affidavit it is stated that in the first week of June 1968, she fell seriously ill and therefore she was unable to contact her Advocate or direct any person to deposit the rent. When the attention of the learned Additional District Judge was drawn to this fact, he merely repelled the argument on the assumption that the same Advocate continued to appear for the respondent and therefore it was not expected from him to state self-condemning grounds for exemption from default. However, I find that this assumption is absolutely unwarranted by the record, for, the application dated 11-11-1968 was signed and the affidavit was identified by a different Advocate, as the respondent appears to have engaged Messrs Arshad Ali Qureshi and Syed Ashique Ali Zaidi, who seem to have represented her at that stage. Therefore, there is no reason, nor any reason has been advanced for not disclosing the alleged fact that rest amount was given to the Advocate previously appearing for the respondent. It is, therefore, quite obvious that the plea now advanced is by way of second thought and is not free from doubt. This conclusion is further supported by the fact that the three medical certificates produced before the Rent Controller only referred to the illness of the respondent as 'acute Lumbage' and 'Rheumatic Arthirite' of the ankle joint. These certificates are of the dates 15-2-1968, 26-6-1968, and 5-9-1968, respectively. In the memo. of appeal before the first Appellate Authority- the respondent's case is that after 17-4-1968 she 'broke her leg due to accident and was confined to bed in her own house.' This statement is substantially inconsistent with what is mentioned in the medical certificates, which do not mention the fact of the breaking of leg. All these circumstances, coupled with the fact that, as admitted in the written statement, the respondent was a defaulter in the payment of rents for a period of over three years before the institution of the proceedings for ejectment, although the reason for that was pleaded to be financial difficulties, go to show that no justification has been made out for repeated non-compliance of the order under section 13 (b) of the Ordinance.

12. Mr. Ghiasuddin Baloch, however, contended that the lower appellate Court's decision on a question of fact is final and therefore is not p assailable in second appeal. He placed reliance on the case of Visumall Chatumal Khilnani v. Ali Bakhsh (P L D 1968 Kar. 521). On the other hand Mr. Sabir Rahmani, placing reliance on a case of the Privy Council reported in A I R 1914 P C 67, argued that a decision that there is no evidence to support a finding of fact is a decision of law. However, I feel this question admits of no controversy, in view of what their Lordships of the Supreme Court in the recent case of Mohammad Alam v. Noor Mohammad (1973 S C M R 606) have observed, in the following terms:

"The question whether there was default within the purview of section 13 of the Rent Restriction 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."

Accordingly, the contention of Mr. Ghiasuddin is untenable. But in my opinion, the argument is not relevant in this case at all, as the question of a finding by appellate Court does not arise here, in view of the fact that the learned Additional District Judge did not proceed to give a finding on the question but remanded the same for a fresh decision to the Rent Controller.

13. 1 now turn to the final point regarding the condonation of delay. It is now well-settled that delay in filing an appeal can be condoned under section 5 of the Limitation Act only if each day's delay is explained. In this case there was delay of more than two months and only vague allegations in support of the request for condonation of delay have been made in the Memo of Appeal, that the respondent was ill and her Advocate did not inform her that an order of ejectment had been passed against her. It has not been disclosed as to when and in what circumstances the respondent acquired knowledge of the impugned order. It is, therefore, not possible to judge whether she was diligent or careful in prosecuting her case or not. However, it is quite clear that she had, admittedly, the knowledge about order by 11-11-1968, when an application for setting aside the same was submitted before the Rent Controller, instead of filing an appeal against it. This application was dismissed summarily, as should have been expected, on 12-11-1968. Even then an application for copy of the order of ejectment was presented on 18-I1-1968, when already the appeal was long before time barred. The negligence of the counsel, if at all true, can hardly be a ground for condonation of delay. Thus in a recent case the present my Lord the Chief Justice of Pakistan, namely the case of Miss E. Andrews v. Niaz Ahmed and others (1975 S C M R 356) held the tenant guilty of laches in not enquiring from her counsel the amount of as well as the date by which the arrears of rent were to be, deposited. Thus I find that the discretion exercised by lower appellate Court to condone delay was in ignorance of these relevant facts and as such was not judicially sound.

13. Mr. Ghiasuddin, however, questioned the power of this Court to interfere with the exercise of discretion by the first appellate Court in condoning delay. The learned counsel cited some decisions of the Indian Courts but I do not wish to burden this judgment with a detailed discussion of the same, as none of the cases lays down such a wide proposition of law as is sought to be canvassed by counsel, but in each case in the particular facts the High Court had declined to interfere. Mr. Rehmani, on the other hand also cited some cases of the Indian Courts supporting the contrary view, that if discretion in the matter was arbitrarily exercised without due regard to the principles, such discretion, cannot be said to have been properly exercised and could be challenged in second appeal. In any case. I find no good reasons to agree with the argument, for, whether the discretionary power vesting in a Court of law was exercised arbitrarily, capriciously and not in accordance; with sound judicial principles, would always be a question of law or at any rate a mixed question of law and fact, and, would therefore, be subject to correction fn second appeal like any other error on a question of law. The contention of the learned counsel for the respondent therefore fails and I hold that the appeal filed by the respondent before the first appellate Court was time-barred.

14. In the result, I would allow the appeal and set aside the judgment and order of the Additional District Judge remanding the case to the Rent Controller. The order of the Rent Controller directing the respondent to put the appellant in possession is maintained and a period of three months is allowed for the purpose. Having regard to the circumstances of the case I would make no order as to costs.

S. Q. Appeal allowed.