NASIR JAMAL Versus ZUBEIDA BEGUM

1. This First Rent Appeal under section 21 of 'he Sindh Rented Premises Ordinance, 1979 has been brought at the instance of tenant against the order, ' dated 25th February, 1989 passed by I1Ird Senior Civil Judge and Rent Controller, Karachi (Central) in Rent Case No.589/88 whereby the appellant has been directed to hand over vacant and peaceful possession of the demised premises viz. house No.801/Block No.8. A7.i7abad, Federal B Area, Karachi, within sixty days from the date of order.

2. The relevant facts giving rise to this appeal, briefly stated, are these. The respondent being the owner and landlady of the above house filed by the ejectment application against the appellant on the ground of default in payment of rent for the period from March 1986 to 20th February, 1987 at the rate of Rs.600 per month; personal need and for making unauthorized additions and alterations. The appellant filed written statement controverting all the allegations made in the application. He pleaded that the rent of the demised premises was actuallyJts.250 per month and that it had been paid to the respondent before the receipt of notice of the institution of the ejectment case against him. It was specifically pleaded in the written statement that if the respondent took special oath on Holy Ouran that the monthly rent was Rs.600 and that she had not received the rent up to April 1987 at the rate of Rs.250 the appellant/tenant shall vacate the premises.

3. In support of her case the respondent examined her husband and Attorney Abdul Ghaffar Khan and her son Irshad Ahmad, whereas the appellant filed his own affidavit‑in‑evidence in support of his case. The learned Controller framed as many as five issues out of the pleadings of the parties. While deciding the issue of rate of rent, he held that it was Rs.250 per month and not Rs.600 per month as claimed by the respondent. The issue with regard to the additions and alterations in demised‑premises was not pressed. On the issue of default he held that the respondent/landlady had failed to prove that the rent was not paid up to April 1987 as pleaded by the appellant. With regard to issue as to whether the A appellant /tenant failed to pay rent from April 1989 upto the passing of tentative order for payment of rent on 8‑2‑1988 the learned Rent Controller held that he had committed default in payment of rent for the said period, and that the opponent cannot escape from the penalty in the shape of his eviction from the premises. In this connection he placed reliance on the following authorities:‑‑

(1) Abdul Ghani v. Mst. Rasool Bibi and 7 others (1985 CLC 2066) and

(2) Basit Yar Khan v. M/s. Pak Carpet Emporium (1986 CLC 555).

4. The issue regarding personal need was held to have been not proved. Consequently the ejectment application was allowed as stated above. Hence the appeal at the instance of tenant. The respondent /landlady has also filed cross objection in respect of other issues.

5. 1t was contended by Mr. Mobarak Ahmad, Advocate on behalf of appellant that it is evidently borne out from the facts recorded above that the appellant was not found to be in default for payment of rent for the period from March 1986 till 20th February, 1987. The only default committed by him was in respect of the period subsequent to the filing' of the ejectment application and upto the date of passing of the tentative order for payment of rent i.e. from May,I 1987 to 8‑2‑1988. The amount of rent as per tentative order for payment of rent dated 8‑2‑1988 was also paid in time and there was no default or failure on the part of the appellant to comply with the said order. It was contended by the learned counsel for the appellant that the learned Rent Controller acted without jurisdiction to take note of the subsequent default in payment of rent. In support of his contention he sought to place reliance on the decision given by me in the case of M. Salecm Farooqui v. Haji Syed Muhammad Bashir 1988 CLC 963 wherein it is held as under:‑‑

6. "A plain reading of the above‑reproduced section 15(2)(ii) of the Ordinance clearly shows that the jurisdiction of the Rent Controller to order the eviction of the tenant depends upon, firstly, the making of an application by the landlord to him stating that the tenant has failed to pay rent in respect of the premises in his possession within 15 days after the expiry of period fixed by mutual agreement between him and the tenant for payment of the rent, or in the absence of such agreement, within 60 days after the rent has become due for payment and, secondly, upon the satisfaction of the Rent Controller to the correctness of the statement made in the application. The landlord has thus to make a specific mention of the month or months for which the tenant was in arrears of rent and/or had failed to pay rent in respect of the premises in his possession within the time as mentioned therein. The Rent Controller is thus not ceased of the jurisdiction under section 15(2)(ii) of the Ordinance to order the eviction of the tenant for his failure to pay rent for any period subsequent to the period of making the application to the Controller under section 15(1) of the Ordinance. For the arrears of rent at the time of making the application for eviction and also for the rent of the subsequent period the legislature has specifically made a provision under section 16 of the Ordinance. Subsection (1) of section 16 again empowers the Rent Controller to determine the arrears of rent due and order the tenant to deposit the same within the period as he may fix in that behalf and also to direct the tenant to deposit monthly rent regularly on or before the 10th of every month until final disposal of the case. The exercise of this power has again been made subject to the presentation of an application by the landlord and after making such summary enquiry as the Controller deems fit. The legislature has thus not conferred upon the Rent Controller an unbridled power to order eviction for the default in payment of rent for the period subsequent to the making of the application under section 15(1) of the Ordinance. The Rent Controller is, however, under a legal obligation, on the application under section 16 by the landlord and after such summary inquiry as he deems fit to make, to determine the arrears of rent due and to order the tenant to deposit the same and further to direct the tenant to deposit monthly rent in future regularly on or before the 10th of every month until disposal of the case. The non‑compliance on the part of the tenant of the order made by the Rent Controller under subsection (1) of section 16 of the Ordinance renders the tenant to be visited by a severe penalty of his defence being struck off and confers a right upon the landlord to be put into possession of the premises without any further proceedings within such period as may be specified by the Controller in that behalf in his order. The power of the Rent Controller to deal with the failure of the tenant to pay rent for any month, subsequent to the making of the application under section 15(1) is controlled by section 16 and cannot be exercised in a manner otherwise than the one provided thereunder. To put it otherwise; if the landlord does not make an application under section 16(1) requesting the Controller to determine the arrears of rent due and order the tenant to deposit the same and further seeking a. direction to the tenant to deposit monthly rent regularly the Rent Controller cannot suo motu pass an order either for depositing the arrears of rent or to deposit future monthly rent and/or to take note of and pass any order for the failure of the tenant to make payment of the arrears of the rent of the subsequent months. In this view of the matter, there is no escape from the conclusion that the learned Rent Controller in the instant case has acted in excess of his jurisdiction in ordering the eviction of the appellant/tenant for his failure to deposit the rent for the months of September and October, 1983 by or before 30th November, 1983 and 30th December, 1983 respectively. His order is, therefore, patently liable to be struck down."

7. The learned counsel further emphasised that the default committed by the appellant in payment of rent for the months subsequent to the filing of the ejectment application may give a fresh cause of action to the respondent/landlady but it could not be made the basis for ordering the eviction of the appellant. In doing so the learned Controller has travelled beyond the pleadings which he was not in law entitled to do. No separate application for eviction of the appellant for default in payment of rent for the months subsequent to the filing of the ejectment application was presented. He also urged that the learned Rent Controller has misunderstood the ratio of the decisions reported in 1985 CLC 2066 and 1986 CLC 555.

8. Mr. Hafiz Abdul Baqi, the learned counsel for the respondent on the other hand, supported the impugned order on this issue. In his submission by the tentative order for payment of rent passed by the learned Rent Controller on 8‑2‑1988 the appellant was directed to pay rent at the rate of Rs.250 per month for the entire period commencing from March, 1986 till the date of passing of the order. The appellant paid the said rent in Court and hence he thereby acknowledged his liability to pay the arrears of rent for the disputed period as well. It was, according to him, an admission on the part of the appellant for his having committed default for the period claimed in the application. The next contention of the learned counsel for the respondent was that the default committed by the appellant in payment of rent for the period subsequent to the filing of the rent application till the date of passing of the tentative order for payment of rent was established on record and it was rightly taken note of for ordering his eviction on the ground of default. 1n support of his contention the counsel sought to place reliance on the following reported cases:‑ '

(1) Pakistan Art Emporium v. Palace Hotel Karachi (1989 CLC 34).

(2) Shafiq Ahmed v. Sakhawat Hussain (1989 CLC 1116).

(3) Raj Muhammad and 11 others v. Haji Muhammad Zarin and 3 others (1980 SCMR 339).

(4) Imamdin v. Tajammul Hussain and another (1989 CLC 464).

9. The learned counsel for the respondent then attacked the impugned order on the issue of personal bona fide need. He emphasised that the impugned judgment was based on misreading and misinterpretation of the evidence on record. He urged that the house of husband of respondent is constructed on a plot of 200 sq. yards and had a four rooms accommodation yet it is on the first floor and is not suitable for the residence of the respondent, who is an old and ailing lady. The said house of the husband of the respondent is also insufficient for the needs of 5 sons of the respondent. In this connection he cited Mrs. Rehana Akbar v. Inamuddin Malik (1989 CLC 616) and Muhammad Sharif v. Nisar Ahmed and others (1988 SCMR 1587).

10. Replying to the arguments of Mr. Harz Abdul Baqi, the learned counsel for the respondent, it was contended by Mr. Mubarak Ahmad, the learned counsel for the appellant that the appellant had offered to the respondent to take special oath that she had not received the rent at the rate of Rs.250 for the period from March, 1986 to April, 1987 but she despite having sought adjournment on that ground, failed to take special oath. The appellant also, in the alternative, offered to take special oath that the rent for the period in question had been duly paid to the respondent at the rate of Rs.250 per month for which no rent receipt was issued and that the respondent had thus no cause of action to file the application for ejectment for the alleged default in payment of rent for the period from March, 1986 to April, 1987. He urged with vehemence that this offer is still open to the respondent and if she comes and takes the special oath on Holy Quran, the appellant will not only pay the amount of rent for the said period but will also vacate the demised premises within six months. In his submission, the learned Rent Controller was not competent to take note of subsequent default after the riling of the application In this connection he cited the case of Sami Ahmed v. Mrs. Rehana Zaidi (1985 CLC 540).

11. With regard to the alleged personal need of the respondent, the learned counsel submitted that she did not disclose that she was residing in the house of her husband. It was in cross‑examination of the respondent's witness that it came to surface that the house in which the respondent is residing is owned by the husband of the respondent. The house in her occupation has admittedly more accommodation than that of the demised premises in possession of the appellant. He also urged that P.W.2 Irshad Ahmed has admitted in his deposition that the two sons of the respondent have gone abroad and are not residing in Pakistan. Irshad Ahmed (P.W.) the son of the respondent has also during cross examination admitted that "The house in which we are living is on 280 sq. yards. There are four rooms on the ground floor and one room on the first floor." P.W.1 Abdul Ghaffar Khan, the husband of the respondent during his cross‑examination has also admitted that "the house which is in our possession is in my name. It is on 200 sq. yards. There are two temporary rooms on the first floor of it and there are four rooms on the ground floor of it. 1 am in occupation of it since 1964". The counsel urged that in paragraph 5 of the application it was deliberately wrongly mentioned that the house is required by the respondent for herself, her husband, 4 sons and 3 daughters. 1t is now borne out from the evidence that two sons of the respondent are settled in America and one daughter after her marriage has left the house. It has also come in evidence that one son of the appellant was residing in a rented house.

12. Taking the issue, of default first I find that the learned Rent Controller having specifically held that the claim of the respondent in regard to the default in payment of rent for the period from March, 19M to April 1987 was incorrect, committed error in law in allowing the application for ejectment on the ground of default for the period subsequent to the filing of the ejectment application when no effort was made by the respondent to amend the application. Before proceeding further it may be observed that the Supreme Court in the case of Mst.

13. Amina Begum v. Mehar Ghulam Dastgir (PLD 1978 SC 220) has, after a detailed review of the case‑law, endorsed the observations made by Madras High Court in AIR 1950 Mad. 321 to the effect that "the ordinary rule is that'a Court should give its decision on the facts and circumstances as they existed at the date of institution of suit or at the date any subsequent amendment of the pleadings and should not take notice of events or decisions which have happened after such date." In this very decision the Supreme Court also reproduced the following passage from the Commentary under rule 7 of Order VII of the Code of Civil Procedure by Mulla (12th Edn).

14. "Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made."

15. It is thus evident from the above‑reproduced extracts from the decision of the Supreme Court notwithstanding the fact that in proper cases a discretion is vested in the Court to take note of the subsequent events and grant relief to the parties accordingly, if by doing so it can shorten litigation and best attain the ends of justice. But it is to be exercised only in proper cases in order to avoid multiplicity of proceedings, shorten litigation and to do complete justice between the parties. In all the cases cited by the learned counsel for the respondent the tenants were found to be in default for the period mentioned in the ejectment applications and that in certain cases it was also considered that the rent for the subsequent period after the filing of the rent case was also not paid and for that reason the ejectment of the tenants was ordered. In the two cases referred by the learned Rent Controller in his impugned judgment viz. 1985 CLC 2(W> and 1986 CLC 555, the position was exactly the same namely, that the ejectment was ordered not solely on the ground of default in payment of rent 'for the period after filing of ejectment application, but for want of proof payment of rent for the period prior to the filing of ejectment application. In both these cases the default in payment of rent for the period stated in the ejectment applications was found to have been proved. Likewise in the case of Pakistan Art Emporium (Supra) the tenant was found to have defaulted in payment of rent for the months of November, December 1983 and January, 1984, which had given rise to the ejectment proceedings. It was a different aspect that for the subsequent period also the tenant was found to have not paid the rent. Likewise in the case of Shafiq Ahmed (Supre) the default, for the period of October to December, 1979, in respect of which application for ejectment was filed was found to have been actually committed. While considering the contention of the counsel for the tenant that the default in payment of rent was only for the month of October, 1979 and hence it was a case wherein the discretion in ordering ejectment should have been exercised in favour of the tenant, the learned Judge made a reference to the subsequent conduct of the tenant to show that he had not paid the rent from January, 1980 till April, 1981 i.e. even for the period subsequent to the filing of the ejectment application. The ejectment in this case was thus not ordered only for the default committed for the period subsequent to the filing of the application. In the case of Raj Muhammad and 11 others (supra), the Honorable Supreme Court reiterated the ratio of the decision given in the case of Mst. Amina Bcgum, which has already been discussed above. Similarly in the case of Imamdin (supre) the ejectment was sought, inter alia on the ground of default in the payment of rent from September, 1981 to February, 1982. In certain cases which were the subject‑matter of F.R.A. Nos.966 to 970 of 1986 before the High Court the tenants were also stated to have committed default in payment of rent from March, 1982 to December, 1982. With reference to the second set of cases viz. F.R.As.966/86 to 970/86 it was pleaded on behalf of the tenants that since the landlord had filed ejectment application in which an application under section 16(1) had been filed, therefore, the tenants could not have deposited the rent in Court because the order for deposit had not been passed and secondly, as the ejectment case had been filed the provisions of section 10 could not be invoked.

16. My learned brother Saleem Akhtar, J, repelled this contention with the following observations:‑‑

17. "There was no bar under law prohibiting the depositing of rent in Court by the appellant. It is the statutory duty of the tenant to pay the rent regularly. The pendency of ejectment case does not give a right to stop payment of rent. After order under section 16(1) was passed the appellant deposited the rent in Court. However, no valid ground for non payment from March till October had been given."

18. In this case it is evidently clear that the landlord had filed separate ejectment applications against different tenants for the period of default in payment of rent subsequent to the filing of the earlier ejectment applications. Likewise in the case of Sami Ahmed (supra) an ejectment application, inter alia, on the ground of default in payment of rent for four months viz. March 1976 to June, 1976 was filed. During the pendency of the said Rent Cases another Rent Case was filed only on ground of default in payment of rent for 15 months commencing from October, 1976 to December, 1977. It was contended before the High Court in the First Rent Appeal on behalf of the tenant that the second application for ejectment was not maintainable during the pendency of first rent case as it was barred by res judicata under section 11, C.P.C. Repelling this contention my learned brother Dr. Tanzil‑ur‑Rehman, J. held as under:‑

19. "13. The second application filed on the ground of default for the period October 1976 to December, 1977 was based on distinct cause of action because the first application was filed on the ground of default for the months of March to June, 1976, whereas the second application was based on the ground of default for October, 1976 and December 1977. The provisions of section 11, C.P.C. will, therefore, not be attracted in this case. Even otherwise, the issue raised in the earlier ejectment application had not been heard and decided. The cases cited by the learned counsel for the appellant have also no bearing on the facts of the case before me.

14. The liability to pay the monthly rent in accordance with the provisions of the Sindh Urban Rent Restriction Ordinance, 1959 was a continuing month to month liability. Thus, the subsequent application on subsequent default was quite maintainable."

20. This case, I find, does not lend support to the contention of the learned counsel for the respondent. On the contrary, if I have correctly understood the ratio of this case, it goes against him inasmuch as for the default committed after the filing of ejectment application a separate cause of action had accrued to the landlord to file a separate application for ejectment.

21. I have considered all the authorities cited by the learned counsel for the parties and I find that none of them has a direct relevancy to the issue in hand. The ratio of the decision already recorded by me in the case of M. saleem Farooqui (supra) I find, is squarely applicable to the facts of this case and I do not find any justification to depart therefrom.

22. I have considered the submissions made by the learned counsel for the respondent in support of the cross‑objections and I find no substance in them. In so far as the issue regarding personal bona fide need is concerned, I find that the learned Controller has given cogent reasons for deciding this issue in. favour of the appellant. Admittedly two sons of the respondent have left Pakistan for America where they are settled whereas out of the three daughters one was admittedly married and had gone to live with her husband. One of the remaining two sons, named Irshad Ahmed was admittedly residing in a rented premises at the time the eviction application was filed. His having left that rented house after the filing of the application is not proved and has rightly been disbelieved by the learned Rent Controller. I do not, therefore, rind any justification to interfere with his finding on the issue. The cross‑objections filed are, therefore, held to be without force.

23. In the result, the appeal is allowed and the impugned judgment of the learned Rent Controller is set aside. The parties are, however, left to bear their own costs.

24. H.B.T./N‑247/K Appeal allowed