MRS. DHUNMAI PHIROZE DALAL Versus MRS. FRENY A. CAVINA

1. This is a landlady's second appeal against the judgment, dated 4‑8‑1982 passed by the VIth Additional District Judge reversing the order passed by VIth Rent Controller, Karachi, dated 5‑4‑1979.

2. The facts which give rise to this appeal are that the appellant is the owner of property bearing No. 25, Survey No. PR‑1, situate opposite Makki Masjid, Garden Road, Preedy Quarter, Karachi and the respondent is her tenant in respect thereof at the monthly rental of Rs.130.44. The appellant filed an eviction application No. 2676 of 1975 against the respondent on the grounds of (1) default in payment of rent since July, 1975, (2) the respondent illegally and without the permission and consent of the appellant had partly transferred her tenancy rights by subletting the outhouses/servant quarters, and (3) the respondent had not only converted the residential property into semi‑commercial premises but she was also making gains and profits there from illegally and unauthorisedly. The respondent resisted the application. .

3. On the pleadings of the parties the Rent Controller framed the following issues on 18‑3‑1976:

(1) Whether the opponent has committed wilful default in the payment of rent as alleged by the applicant?

(2) Whether the opponent has sublet the premises as alleged by the applicant?

(3) What is the rate of rent?

(4) Whether the opponent is using the premises for the purpose other than that for which the same was let out?

(5) What should the order be?

4. The appellant examined Keki Punthaky (Exh. 22), Nauzer Messman (Exh. 23) and Dara Gotla (Exh. 24) besides her husband and herself.

5. In rebuttal the respondent examined Dr. Aspi Kaikhurso Cavina (0/10), Sohrabji Dhanjishaw (0/11), Noshir s/o Boman Shaw (0/12), Khurshid Bird! (0/13), Mrs. Foraney Aspicavina (Exh. 0/22), Iqbal Ahmed Siddiqui (0/25), Khurshid Mohinuddin (0/26) and Dhanji Shaw Patel (0/27).

6. The learned Rent Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties, decided issue No. 1 in the negative, issue No. 2 in the affirmative and issue No. 4 in the affirmative and held that the rate of rent was Rs.130.44 and allowed the eviction application on the grounds of subletting and using the premises for the purposes of other than for which it was given, vide his order, dated 25‑4‑1979 and directed the tenant to vacate the premises and put the appellant into its peaceful possession within one month from the date of the order.

7. The respondent /tenant being aggrieved by order, dated 25‑4‑1979 of the learned Rent Controller, filed Rent Appeal No. 307 of 1979 in the Court of District Judge, Karachi, which was ultimately transferred to the Court of VIth Additional District Judge, Karachi. The VIth Additional District Judge, Karachi, by his judgment, dated 4‑8‑1982 allowed the said appeal of the respondent and set aside the order, dated 25‑4‑1979 of the learned Rent Controller, for the reasons given in the said judgment.

8. The appellant above named being aggrieved by the judgment, dated 4‑8‑1982 of the VIth Additional District Judge, Karachi, has preferred this second appeal on the grounds mentioned in the memo. of appeal.

9. I have heard the learned counsel for the appellant and the respondent. As the finding of the two Courts below on the issues of subletting the outhouses and/or any part thereof, using for the purposes other than residential and rate of rent are at variance. I have gone through the entire evidence recorded in the case with the assistance of the learned counsel appearing on either side and after hearing them I am of the view that the appeal be allowed.

10. The appellant is the owner and landlady of the property being a bungalow with outhouses and servant quarters, constructed on plot of land bearing No. 25, survey sheet PR‑1, Karachi. The mother of the respondent was inducted as tenant and on her death the respondent inherited tenancy rights and thus she became and continued to be the tenant in respect of the demised premises. According to the appellant the agreed rent of the property remained Rs.130.44. According to the respondent the rent of the property was enhanced to Rs.275 per month in April, 1975 on account of imposition of betterment tax etc.

11. The appellant in her deposition stated that the rent of the premises is Rs.130.44. The respondent had sent more rent than what was the agreed rent. She did not accept the same and returned the excess amount. She placed letters exchanged between her and the appellant. The letters are produced as Exhs. 5, 9, 10, 18, 20 and 21. A.W. Nauzir Accountant in Eastern Automobile since 1974, stated that he used to deal with the account of the property and he used to handle with rent of the premises in dispute. He deposed that the appellant never demanded increase in the rent from the respondent. In May or June, 1975 by mistake the cheques were deposited in the bank account of the appellant and when the balance sheet came to him he reallsed that excess amount was deposited of about Rs.289.12. This excess amount was sent back to the respondent.

12. In rebuttal Dr. Cavina husband of the respondent stated that he had discussion with appellant's husband .. by which the rent was enhanced to Rs.275 per month with effect from June and July, 1975. The O.A. No. 1 admitted in his cross‑examination that the appellant returned the difference of excess rent as per Exhs. A/8 and 9 and he returned it back through his Advocate. He also admitted that he has been depositing the rent in Court at the rate of Rs.130.44. The' respondent in her deposition stated that rate of rent is Rs.275.

13. It is pertinent to note that the respondent stated in the written statement that the appellant requested in April, 1975 for enhancement of rent from Rs.130.44 to Rs. 275 per month on account of the imposition of betterment tax. The respondent in her examination‑in‑chief deposed that the appellant never demanded any betterment tax from her. The rent was enhanced by them between her husband and the husband of the appellant had mutually agreed to enhance the rent. The appellant's husband had left on them and they had enhanced the rent.

14. To a suggestion in cross‑examination she replied that she did not attend the meeting at the time of enhancement of rent and, therefore, she could not say about the conversation which had taken place.

15. It is pertinent `to note that the appellant was subjected to lengthy cross‑examination but no suggestion was made to her that her husband and the husband. of the respondent met and mutually agreed to enhance the rent. The first Appellate Authority while disagreeing with the Controller did not take note of the reasons given by the Controller that the rent was not mutually agreed to be enhanced. This view the first Appellate Authority is based on misreading of evidence. I am, therefore, of the view that reversal of the finding of Controller on this issue of enhancement of rent was not at all justified.

16. On the issue of subletting of the outhouse without the written consent of the appellant has transferred her right under the least or any portion thereof, the admitted position on record was that at the commencement of the tenancy the bungalow in question was handed over to the mother of the respondent. The appellant in para. 5 of the eviction application averred that the respondent illegally and without the permission and consent of the respondent partly transferred her tenancy rights in the demised residential premises by subletting property in question to different persons for their residential as well as commercial purposes. The respondent in sub‑para. (b) of para. 6 of the written statement averred that two servant quarters were voluntarily surrendered to the appellant in 1962 when she acquired ownership of the demised premises. In sub‑para (c), the respondent averred that her mother with the consent of the then landlord Mr. F.N.E. Dinshaw had sublet portion of property in her occupation and ever since then i.e. prior to 1950 sub‑tenants both in respect of residential and commercial purpose exist on said property on account of permission, dated 15‑11‑1949. Since last over 15 years before appellant became the landlady a portion of the ground floor of the bungalow in question was in possession of Mr. Kabrap as sub‑tenant for storage purposes. The said Mr. Kabraji who was carpenter was also the sub‑tenant in respect of the outhouse/ cabin since over 15 years and Mr. Kabraji ever since then continued to remain the sub‑tenant of the respondent. It has been averred that the respondent in fact has been showing the income received by her from her sub‑tenant over a period of last so many years. The Controller held that admittedly the respondent has sublet the premises but no permission has been produced. He also held that workshop and godown were sublet on different dates. The first Appellate Authority without considering the reasoning of the Controller disposed of this issue and reversed the finding of the Controller without revealing any logical basis for such reversal of the finding in the following terms:‑‑

17. "The then managing trustee of the Dinshaw Trust by a letter, dated 15‑11‑1949 (Exh. 0/5) allowed the mother of the respondent, to sublet the premises. O/W 3 Noshir deposed that Superior Furniture Company had been working in the outhouse of the demised premises since 1958. The appellant and her witnesses showed their ignorance about they presence of Superior Furniture Company, its workshop and godown before 30‑5‑1962."

18. The above finding of the first Appellate Authority is devoid of any basis. The case of the respondent is that her mother with the consent of the then landlord Mr. F.N.E. Dinshaw had sublet portion of the property in her occupation to Mr. Kabraji. This letter was produced by 0/W No. 1 Dr. Cavina, the husband of the respondent who deposed that the portion was sublet after 15‑11‑1949. This document was proved by Nauzir who was the Manager of F.N.E. Dinshaw and he admitted the signature of F.N.E. Dinshaw, O/W 4. Khurshid Birdi partner of Superior Furniture Company deposed that the Superior Furniture Company has godown and workshop in the disputed premises and the respondent is landlady. He produced rent voucher Exh. 0/16 for the period April to September, 1957 and rent voucher Exh. 0/17 for the period October 1957 to March, 1958. He also produced three challans, dated 31‑8‑1950, 31‑3‑1951 and 31‑8‑1950 for payment of sales tax and the place of manufacture was shown as disputed property.

19. The learned counsel for the appellant challenged permission letter; dated 15‑11‑1949 (Exh. 0/5) on the ground that F.N.E. Dinshaw was not the landlord of the disputed premises. It is clear from sale‑deed that the property in dispute was purchased by F.N.E. Dinshaw by sale‑deed, dated 15‑3‑1962 from Ishwandas Haridas Bhatia. I have perused the sale‑deed, dated 15‑3‑1962 executed between Ishwandas and F.N.E. Dinshaw. From the recital it is clear that Ishwandas mortgaged this property with possession‑on 26‑11‑1966 with F. N . E. Dinshaw and subsequently sold to F.N.E. Dinshaw. In view of this position F.N.E, Dinshaw was receiving rent from the respondent and issued the permission for subletting a portion of the disputed premises. The Custodian of Evacuee Property vide order, dated 2‑9‑1950 authorised F.N.E. Dinshaw to collect rent of the premises in dispute.

20. I am of the view that the respondent has sublet a portion of the disputed premises to Kabraji for workshop only with the permission of the then landlord.

21. O/W 4 Khurshid Birdi partner of Superior Furniture Company deposed that a portion for godown was also sublet to Superior Furniture Company. The respondent in sub‑para. (d) of para. 6 of written statement averred that a portion of the ground floor of the bungalow in question is in possession of Mr. Kabraji as sub‑tenant for storage purpose. The written statement is dated 15‑10‑1975, that is, since 1960. Khurshid Birdi produced Exh. 0/14 which pertains to payment of rent for the period January, 1975 to December, 1975. According to this voucher the rate of rent is Rs.200 per month. This voucher 0/15 indicates payment of rent in respect of workshop. According to this voucher the rent of workshop is Rs.125. It seems that for subletting this portion there was no permission accorded by the then landlord.

22. Section 13 provides that a tenant in possession of building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provision of this section. Subsection (2) then sets out several grounds of eviction. Clause (ii) mentions the following grounds:‑

23. "(ii) the tenant has, without the written consent of the landlord‑

(a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or

(b) used the building or rented land for purpose other than for which it was leased or has infringed any conditions of the tenure on which the building or rented land is held by the landlord; or "

24. The respondent's contention is that subletting before the promulgation of the Ordinance is not within the purview of clause (ii). The case must be decided on the footing that on the date of the subletting, the repealed Ordinance was not in force.

25. The question whether a subletting before the promulgation of Ordinance is within the purview of clause (ii) of subsection (2) of section 13 depends upon the construction of that clause. The relevant words are "has subletting". The present perfect sense contemplates completed event connected in some way with the present time. I am o the view that the words taken within their sweep any subletting which was made in the past and has continued upto the present time. It does not matter that the subletting was either before the promulgation old the Ordinance or after the promulgation of the Ordinance. All such sublettings are within the purview of clause (ii).

26. Subsection (1) of section 13 of the Ordinance throws some considerable light on the construction of subsection (2).

27. Subsection (1) of section 13 bars the execution of a decree passed before or after promulgation of the Ordinance. A tenant shall not be evicted there from except in accordance with the provision o this section. Subsection (1) contemplates that the grounds of eviction mentioned in section 13 may have arisen before the promulgation of the Ordinance.

28. I find no reason for presuming that section 13(2)(ii) is not intended to apply to sublettings before the promulgation of the Ordinance. If the tenant has sublet the premises or any part thereof without the permission of the landlady either before or after the promulgation of the Ordinance, she is not protected from eviction under section 13(2)(ii), and it matters not that she had a right to sublet the premises under section 108(J) of the Transfer of Property Act.

29. As regards the argument of the learned counsel for the appellant that the respondent has used the part of the premises for a purpose other than that for which it was let out to her mother, the case as set out in the eviction application that the respondent has let out part of the premises to Kabraji or to Superior Furniture Company for commercial purpose. Subsequently she has also let out for storage purpose.

30. On the other hand Mr. Naik has submitted that when the premises were let out for commercial of storage purpose the Ordinance was not promulgated. The argument that clause (ii)(b) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent laws the landlady is entitled to evict the tenant on the expiry of the period mentioned in the notice to quit. Section 13(i) protects the tenant from eviction except in certain specified cases. If one of the grounds of eviction is made out the tenant does not qualify for protection from eviction. I find no reason for presumin that section 13(2)(ii)(b) is not intended to apply to converting into commercial before the promulgation of the Ordinance. If the tenant ha used the premises in question for a purpose other than that for which it was let out to her without the permission of the landlady either before or after the promulgation of the Ordinance, she is not protect from eviction under section 13(2)(a) and (b).

31. The question which requires determination in this case is whether the part of the premises which was let out to the tenant for storage purposes becomes non‑residential building as contemplated under section 2(d) of the repealed Ordinance. In order to determine this question, curtain provisions of the repealed Ordinance are necessary to be reproduced here. Section 2(d) of the Ordinance defines "Non‑Residential building" and thus reads:

32. "Non‑residential building" means a 'building' being used solely for the purpose of business or trade,"

33. Section 2(g) defines "residential building" means any building which is not a non‑residential building.

34. Section 2(b) of the Ordinance defines "scheduled building" and it reads thus:

35. "Schedule building" means a residential building which is being used by a person engaged in one of the profession specified in the schedule to this Ordinance, partly for his business and partly for his residence."

36. Here reference to sections 11 and 19 of the Ordinance is also relevant and they read as under:‑‑

37. "11. Conversion of a residential building into a non‑residential except with the permission in writing of the Controller.

38. "19. Penalties‑‑(1) If any person contravenes any of the provisions of subsection (1) of section 10, section 11 or section 18, he shall be punished with fine which may extend to one thousand rupees.

(2) No Court shall take cognizance of an offence under this section except upon‑‑

(a) a complaint of facts which constitute such offence filed with the sanction of the Controller in writing; or

(b) a report in writing of such facts made by the Controller."

39. From the perusal of the Scheme of the Ordinance and the various terms used therein it is quite apparent that the words "business trade" and the word "profession" have been used purposely, having different connotation.

40. Section 11 of the Ordinance, as reproduced earlier, says that no person shall convert a residential building into a non‑residential building except with the permission in writing of the Controller. In the present case admittedly the premises were let out for residential purposes. Admittedly the tenant let out a part or a portion of a residential building to Superior Furniture Company. The major portion of the premises is being used by the tenant for her own residence. Under these circumstances, could the respondent /appellant convert a part of the residential building into a non‑residential one without the permission in writing of the Controller, since there is a bar provided under the Ordinance itself and under section 19 of the Ordinance penalty for' the breach of the same has been provided, it is quite clear that a residential building as such could not be converted into a non‑residential building by letting out to Superior Furniture Company for a workshop and storage therein. Anything done in contravention of the provisions of the Ordinance cannot bind the appellant /landlord or the respondent/ tenant. In this view of the matter also it cannot be held that the H premises have become non‑residential building because it is being used partly for the purpose of a workshop and storage by the sub‑tenant.

41. Mr. Naik has contended that the two servant quarters are being used by the respondent or with the consent /knowledge of the appellant by present occupants for commercial purpose and as such the question of the respondent having changed the purposes of property from residential to commercial.

42. Mr. Naik has submitted that there was acquiescence on the part of the appellant in the conversion/user of the premises in dispute, for a purpose other than that for which the premises in dispute had been let out. In support of his contention he placed reliance on the following cases:‑‑

(1) P L D 1963 Kar. 695, (2) P L D 1978 Lah. 109 and

(3) P L D 1980 Kar. 126.

43. In the above‑cited first case the facts were that Muhammad Shafi had the knowledge of subletting of the premises in favour of Zahir Ahmed and Mulla Mustaqeem but he continued to accept rent from the tenant on the old terms without protest. In view of these facts a Division Bench of erstwhile High Court of West Pakistan, Karachi Bench held that "Muhammad Shaft by his conduct had given his implied consent to the state of affairs and cannot now complain at his pleasure, nor take advantage of the situation created".

44. In the second cited case the facts were that the appellant No. 1 was the tenant of the respondents. The landlord filed eviction application on the ground of subletting, that is, the appellant No. 1 had sublet the disputed shop to appellants 2 and 3. The Rent Controller came to the conclusion that the shop in question had in fact been sublet and, therefore, allowed the eviction application. An appeal by the appellants also failed for the same reasons. They filed the second appeal before Lahore High Court. Mr. Gul Muhammad Khan held that "the act of the respondents to go on receiving rent for years knowing that it is the firm and not Ghulam Muhammad; who was doing business there, amounts to waiver. They, therefore, shall be estopped to turn round and invoke their right which they abandoned by their conduct and accepted the firm as their tenant".

45. In the third and last case cited above, the facts were that one Samandar Khan, husband of the respondent, constructed the building in about 1935 and thereafter he had remained the tenant in the said premises of Usman Khan. Usman Khan permitted him to sublet a portion. The appellant purchased the property in 1958 and as per evidence that even after his becoming the owner of the premises the appellant did not object to the subletting of the aforesaid portion of the premises by Samandar Khan. The appellant filed application on the ground of subletting. The Controller dismissed the application. The appeal filed by the appellant was also dismissed. The appellant filed second appeal in this Court. Mr. Zafar Hussain Mirza, J. (now Judge in Supreme Court) held as follows:‑‑

46. "In the light of this legal position I find no warrant for interference with the view taken by the two Courts below that by long‑standing practice during the days of the previous landlord as well as the present landlord, namely, the appellant, the respondent and her husband the previous tenant were impliedly allowed to sublet the disputed portion and therefore, the appellant has waived by his conduct the requirement for obtaining his consent in writing."

47. It must be remembered that the premises in dispute are governed by the repealed Ordinance which imposes restriction unknown to the common law on the powers of the landlords to recover premises from their tenant. Correspondingly several obligations have been imposed I upon the tenant. The rights and obligations of the landlords and the tenants of the premises governed by Rent Laws must be worked out within the four corners of the Rent Laws.

48. In my opinion, the decisions cited by the learned counsel for the respondent are not relevant for determination of the rights and liabilities arising under the Rent Restriction Laws such as the one with which I am concerned.

49. The landlord's right to obtain possession of the premises or leased premises under section 13(2)(i), (ii), (iii), (iv), (v), (vi) and subsection (3)(a)(i) and (ii) of the repealed Ordinance or sections 14 and 15 of the Sind Rented Premises Ordinance, 1979 is in no way impaired by his acquiescence in the breach of the condition which would under the Transfer of Property Act enable him to re‑enter the leased premises, what is denied to the landlord by his acquiescence in the breach of the condition or by his waiver is the right of re‑entry and not other remedies open to him under the law. The provisions which are incorporated in section 13(2)(ii)(b) of the repealed Ordinance or section 15(2)(iii)(b) of the Sind Rented Premises Ordinance, 1979 has or is used the premises for a purpose other than that for which it was leased or let out to him. This provision does not permit change of J the purpose of the use or continued use for a changed purpose by acquiescence or waiver of the landlord.

50. In order to acquire protection from a possible order of eviction the evidence must be such that it should be reasonable to infer that the landlord not only acquiesced in the change of the purpose of the user but in fact concurred with the same. If this is established then naturally the purpose of the lease itself will be regarded as a new purpose for which the premises are being used. In such a case, there would be no change of purpose for which the premises are being used. I am satisfied that on the facts of this case the evidence does not disclose that the appellant concurred with the purpose for which the respondent allowed the sub‑tenant to use.

51. Mr. Naik, the learned counsel for the respondent has contended that a cause of action could have accrued to the original landlord who could have filed an application for eviction on the ground that the respondent has sublet portion of the premises and has also used the same for a purpose other than for which it was let out to her.

52. Section 13(2) refers to the right of the landlord to evict a tenant. This right is to be exercised against a person who is tenant of the landlord. The word 'landlord' is defined in section 2(c) of the repealed Ordinance. There can be no dispute that for the period after 30th May, 1962 the appellant is the landlady. Karachi Rent Restriction Act as repealed by the West Pakistan Urban Rent Restriction Ordinance XXXVIII of 1962, which came into force on 1st July, 1963 under K Notification No. Judl‑1‑17(7)/60(KAR) published in Gazette of West Pakistan, Extraordinary of 1st July, 1963. The question which arises is whether a cause of action which has accrued in favour of the predecessor‑in‑title of a landlord for the time being can be availed of by the purchaser of the property in case. The definition of the word 'landlord' is not framed as an inclusive definition so as to include the successor‑in‑interest of a landlord. On the other hand, the definition uses the words "for the time being". In order that a person must fall within the definition of the landlord at ‑a particular point of times, h must be a landlord who must be receiving or entitled to receive rent in respect of any premises. In the instant case, the appellant would be receiving rent on her own account prior to the enforcement of the repealed Ordinance. The latter part of the definition which refers to a landlord in the case of a tenant and subtenant is not relevant. Therefore, the definition of a landlord speaks of a landlord with reference to the point of time when the rights under the repealed Ordinance are sought to be exercised. Consequently, when section 13 (2) (ii) (a) and (b) o the repealed Ordinance uses the word "tenant", who is again defined as any person by whom or on whose account rent is payable for building or rented land, the inclusive portion not being material for the purposes of the present case. It appears that the intention of the Legislature was that the landlord who would be entitled to seek to evict would be only the landlord, whose tenant had committed a breach during the time when he was the tenant of that landlord. If the definitions of "landlord" and "tenant" are thus read properly, it is clear that the breaches which are contemplated by clauses (a) and (b) of section 13 (2) (ii) of the Ordinance must be breaches qua tenant of that landlord who claims to exercise his right to seek to evict his tenant. In other words, the breaches in respect of which the Applicant makes a grievance and on which a right to evict is sought to be founded must be committed by a tenant in the capacity of a tenant of the landlord alone. In the instant case I have already held that the relevant words are "has sublet" and the words "has used". These words have taken within their sweep any use which was made in the past and has continued upto the present time. It does not matter that the using were either before the enforcement of the Ordinance or after the enforcement of the Ordinance. In view of the matter I do not find any force in the contention of the learned counsel for the respondent.

53. The appellant has established the ground of eviction under section 13 (2) (ii) (a) and (b) with regard to the storage of goods in part of the disputed premises as this was an integrated tenancy of the premises in dispute. In my opinion, the appellant is entitled to an order of eviction of the respondent from the premises in dispute. ;

54. In the result, the appeal is allowed. The judgment of the First Appellate Court is set aside and the order of the Controller is restored. The respondent will have four months' time to vacate the premises in question. Parties will pay and bear their own costs.

55. A.A. Appeal allowed.