NOORUDDIN Versus MUHAMMAD QASIM

The dispute in these two second appeals under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the said Ordinance) relates to a property in the Lyari Quarters, Karachi. The property had originally been leased out to the appellants in the two appeals by one Ibrahim Muhammad, and the appellants admit having paid rent to him. But the said Ibrahim Muhammad had relations with whom he had considerable litigation. These relations are the respondents in both the appeals. and, about nine years ago, they had wanted to file a suit against the said Ibrahim Muhammad. On the claim that they were paupers, they filed a pauper application, which was J. M. No. 66/1966. This application was disposed of on 28-2-1973 by a compromise application by the XIV Civil Judge, Second Class, Karachi. Now, the application itself states that the applicant, Muhammad Qassim, had received a substantial payment as consideration for the compromise. Prima facie, therefore, this invalidated the proceedings instituted under Order XXXIII, C. P. C. As I will presently show, this point is very important, but Mr. S. Ali Nazar stated that be had filed an application for the conversion of the pauper application into a regular suit, because the pauper applicants wanted to pay courts-fees and prosecute that suit in the ordinary manner. Unfortunately, this application, according to learned counsel, was overlooked. Be that as it may, the respondents claim to have acquired ownership of the premises demised to the appellants in these appeals on the basis of this compromise application. Therefore, it is material to point out that the decree m J. M. No. 66/1966 was prepared on 10-5-1973, whilst the registration of the properties, thus transferred, was effected the next month on 6-6-1973. Then, after effecting registration, the respondents filed separate eviction applications against the appellants in these appeals on the ground of non-payment of rent. Later, I am informed, the respondents also filed eviction applications against these appellants on the ground that they required the demised premises for their own use and occupation, and whilst this has some relevance to the order, which I will pass. I am concerned in these appeals only with the eviction cases against the appellants on the ground of non payment of rent.

2. The appellants contested the eviction applications and challenged the title of the respondents; therefore an issue was framed, which was decided against the appellants and in favour of the respondents. Then, instead of recording evidence on the question of default, the Rent Controller did a very strange thing. On the basis of a judgment reported in Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489), he held that, as the appellants had admittedly not paid rent because of their challenge to the title of the respondents, there was no need to record evidence, and he forthwith ordered the eviction of the appellants by his order of 9-12-1974.

3. Aggrieved by the order, directing their eviction, the appellants went in appeal to the District Court, Karachi, but, as the learned District Judge, who heard the appeals, dismissed them on 5-4-1975, the appellants have now come in second appeals to this Court.

4. As the appellants had challenged the title of the respondents, I may explain here that even Ibrahim Muhammad, to whom they bad paid rent. did not have title to the property on which the demised premises were situated, because be was himself a trespasser on land owned by the Government. However, I was informed by all the learned counsel that, in accordance with the policy of the Government, the respondents have now obtained in their favour a lease from the Government for the land on which the demised premises are situated, but the lease was obtained in December 1974, whilst the eviction applications under appeal had been filed on 2-7-1973. Thus, whilst the title of the respondents remained under a cloud until December 1974, they had filed the eviction applications in appeal more than a year earlier, in July 1973, and further, as their case was based on the compromise order of 28-2-1973, disposing of J. M. No. 66/1965, the defence of the appellants was that this compromise was not sufficient to confer title to the demised premises on the respondents, because the compromise order itself was a fraud on the law.

5. Mr. Muhammad Habib-ur-Rehman Khan Afridi and Mr. A. K. M. Idris first submitted that the compromise in J. M. No. 66/1966 was not valid, because the compromise did not contain any provision for the payment of court-fees. To meet this objection, Mr. S. Ali Nazar stated that the respondents were willing to pay court-fees, and he further stated that the absence of a provision for the payment of court-fees would not invalidate the compromise. Assuming, for the sake of argument, that the compromise is valid, the further difficulty is that paragraph 3 of the compromise application expressly stated that the first respondent in these two appeals, namely, Muhammad Qassim had received Rs. 15,000.00. In view of this statement, I am not able to understand how the learned Civil Judge decreed the compromise. He should forthwith have directed the first respondent to pay proper court-fees, and, in the event of his failure to do so, the pauper A proceedings instituted by the respondents, would have been dismissed. Now, it was to meet this difficulty that Mr. S. Ali Nazar stated from the Bar that he had filed an application that the pauper application should be converted into a suit, as the respondents/applicants were willing to pay court-fees. No doubt, this is an answer to the allegation that the compromise application was a fraudulent and collusive application. But the respondents were negligent in not prosecuting their application, and, in any case, even now they do not contend that they had brought these facts to the notice of the appellants. How then were the appellants to know that the compromise, by which J. M. No. 66/1966 was disposed of, was a valid and lawful compromise? And, if that compromise was not valid, obviously their objections to title needed more careful examination. Mr. S. Ali Nazar's only reply was that the respondents had sent a notice to the appellants calling upon them to pay rent. This is correct, the notice is dated 3rd March 1973, and, by this notice, Mr. S. Ali Nazar had informed the appellants of the order, by which J. M. No. 66/1956 had been compromised in the Court of the XIV Civil Judge, Karachi, and he had, therefore, called upon the appellants to attorn to the respondents and pay rent to them. By his reply dated 21st March 1973, the Advocate of the appellants had requested M. S. Ali Nazar to send a copy of the compromise order, on which he relied. But he had further stated that "my client has no information from Ibrahim Muhammad regarding the alleged compromise. A letter of attornment is needed from Ibrahim Muhammad". Mr. S. Ali Nazar replied promptly to this notice, and, by his letter of 27th March 1973, be sent to the Advocate of the appellants a copy of the compromise order in J. M. No. 66/1966, on which he relied. However, he did not comply with the request for obtaining a letter of attornment from Ibrahim Muhammad, to whom the appellants had paid rent for many years. Then, suddenly on 2-7-1973, the respondents filed eviction applications on the ground of non payment of rent.

6. I observed earlier that the respondents have filed another set of eviction applications against the appellants and others on the ground that they require the demised premises for their own use; therefore I will refrain from making any observations on the question of the title of the respondents to the demised premises. But, as the demised premises had admittedly changed hands, the narrower point, which requires consideration, is, whether the respondents had produced, as was their duty, satisfactory evidence of their title. Their entire case rested on the compromise application, but, as I showed, the application itself invited suspicion. Now, my doubts have been removed only by Mr. S. Ali Nazar's statement that he had filed an application, which was somehow overlooked, for converting the pauper application into a suit. But, as the respondents had never informed the appellants of these facts, the appellants acted reasonably in treating the copy of the compromise order as a suspicious document, not sufficient, by B itself, to prove the title of the respondents. But their bona fides and their willingness to pay rent are proved by their express request to the Advocate of the respondents that they should be supplied a lever of attornment from Ibrahim Muhammad to whom they had been paying rent previously. Nothing could be more reasonable than this request, the more so, as Ibrahim Muhammad is admittedly the uncle of the first respondent, and the failure of the respondents to comply with this very reasonable request is another circumstance, which would, in the mind of any reasonable tenant, have raised doubts about the title of the respondents. This was the' background in which they had been in arrears of rent for a few months when the eviction application was filed, and the obvious point for consideration, which arose, was whether or not they were entitled to the benefit of the Rent Controller's discretion under section 13 of the said Ordinance.

7. The Rent Controller unfortunately did not examine this aspect of the case because of an application filed by the respondents for the disposal of the applications in their favour on the basis of a judgment of a learned Single Judge of the Lahore High Court reported in Nisar Ahmad v. Nazar Muhammad. There, as in the instant case, the appellant had been sued by his landlord for eviction on the ground of non-payment of rent. The appellant had sought to justify his non-payment on the ground that the respondent was not the owner of the demised premises, and, as the appellant failed to prove this plea, the Rent Controller forthwith ordered his eviction. In upholding this order, Pal, J. observed

"11. Moreover even if the amount of rent to be paid by the appellant is determined under the said provision then what would be the effect of such determination. Is it possible for the appellant to prove that he has paid the rent to the respondent? He himself has admitted that he has not paid even a single penny as rent to him because he never acknowledged him to be his landlord. Any such order under the said provision would be a futile exercise of the jurisdiction vesting in the Rent Controller. It may further prolong the agony .of unnecessary litigation but the ultimate result will be the ejectment of the appellant for non-payment of the due rent. As such even from this aspect of the case no such order is required to be passed for the purpose of determining the amount of rent to be paid by the appellant, after his plea regarding the relationship of land lord and tenant between the parties has been rejected."

Mr. S. Ali Nazar relied on this passage, and the Courts below have followed 'it, but, with respect I regret my inability to agree with the principle laid .down in it.

8. The question of the propriety of recording evidence on the question of a tenant's failure to pay rent must always depend on the facts .and circumstances of a case. Thus, for example, if, in order to justify his admitted non-payment of rent, a tenant raises a frivolous objection to the landlord's title, then the Rent Controller may be justified in ordering the eviction of the tenant because of his admission about the non-payment of rent without recording evidence, provided that the landlord drops his claim to the arrears of rent. But, it' the landlord does not drop his claim for the arrears of rent, evidence has to be recorded, unless the quantum o C :rent due has been admitted. Again, even when the quantum of rent due is admitted, there could be cases in which the failure to pay rent was justified; therefore in such cases it could be the duty of the Rent Controller to record evidence, and it was so in both the instant cases. Because the learned counsel for the respondents had not placed before the appellants the relevant facts and because the title of the respondents was under a cloud, the appellants were justified in withholding the payment of rent until the respondents had proved their title. And the respondents did not even make a reasonable attempt to prove their title until this appeal, because Mr. S. Ali 'Nazar had not stated in the Courts below that the respondents had filed .an application to convert their pauper application into a suit. And as the appellants had not been informed of this application, they were entitled to .assume that the compromise order was illegal, and this apart from the fact that the title of the respondents was perfected by the lease obtained by them long after the institution of their eviction application. In this 'background, I have no doubt that the appellants were justified in withholding the payment of rent, and the fact that they were in arrears does not mean that they were not willing to pay rent. This was, therefore, a very fit a case for the exercise of discretion in favour of the appellants under section 13 of the said Ordinance, and the Courts below erred in law in not exercising that discretion. Accordingly, I set aside the orders under appeal, directing the eviction of the appellants, and dismiss both the eviction applications. The appeals are thus allowed with costs in this Court.

9. I observed earlier that it is the duty of the Rent Controller generally to record evidence before deciding an eviction application; therefore it may seem strange that 1 am dismissing the eviction applications in a case in which evidence on the question of non-payment has not been recorded. However, Mr. S. Ali Nazar admitted that no rent was due from any of the appellants, as rent was being deposited in the other eviction applications filed by the respondents on the ground that they required the demised premises for their own use and occupation. Accordingly, it is not necessary -to remand the case.

With these observations, the appeals are allowed with costs.

S. A. H. Appeals allowed.