ESSA KHAN Versus MALIK HABIBULLAH
1. This appeal is directed against order dated 20‑2‑1992 passed by learned Civil Judge‑I‑cum‑Controller, Quetta whereby appellant has been directed to hand over vacant possession of shops bearing No. 10‑5/101‑952‑953 situated on Brewery Road, Quetta to respondent Malik Habibullah.
2. Relevant facts briefly stated are that on 30‑10‑1990 respondent Malik Habibullah filed an application seeking eviction of appellants as well as respondents Nos.2 and 3 from shops bearing Municipal No.10‑5/101‑952‑953 situated on Brewery Road, Quetta. It was alleged that shops were let out to appellant at monthly rental of Rs.30 but he proved to be troublesome tenant. It is the case of landlord that appellant initially defaulted in payment of rent from October, 1979 to March, 1980 and thereafter again has failed to pay rent for the last more than 10 years commencing from April, 1980 till filing of eviction proceedings. Plea of subletting the premises to respondents Nos. 2 and 3 was also raised. Appellant, Essa Khan (ii) respondent No.2 Abdul Sattar and (iii) respondent No.3 Syed Abdul Karim have jointly filed written statement. It was asserted that respondents 2 and 3 were employees of Appellant No.1 and not sub‑lessees. Though non‑payment of rent from April, 1980 was admitted, yet it has been explained that on account of facility provided to landlord by deceased brother of appellant in vacating other premises, rent for the shops in dispute was not received by him. Para. 2 of written statement relating to said explanation is reproduced below for ready reference:‑‑ ,
2. "2. Contents of para. 2 are denied. ‑‑There is no deliberate and wilful default in payment of rent. In fact respondent is also: tenant alongwith his late brother in the adjoining Tall. The applicant requested the respondent to vacate a portion of the said Tall, so that he could construct shops over it. The respondent vacated the said portion and applicant constructed 16 shops over it. In the month of April, 1980 when respondent offered the rent due, applicant did not accept the same on the plea that the respondent has done favour to him by vacating a reasonable space for constructing shops and that he is earning a lot from those shops and in lieu of this favour he will not accept the rent of the shops in dispute in future. The respondent under this bona fide impression 'did not pay rent. However, he is willing to pay the outstanding tent:
3. Learned Controller on 2nd February, 1990 framed following 4 issues and gave the parties opportunity of leading evidence:‑‑
(1) Whether the respondent No.1 is bad paymaster and has failed to pay or tender the rent from 2‑4‑1980 ?
(2) Whether. the respondent No.1 has sublet one shop to respondent No.2 and other shop to respondent No.3 without prior permission/consent of the applicant.
(3) Whether single eviction application for 2 shops is maintainable?
(4) Relief.
4. Record reveals that landlord Malik Habibullah adduced two witnesses (i) Ghulam Rasool and (ii) Abdul Sattar besides himself to support default and subletting. Where as appellant in rebuttal has examined (RW‑i) Jalal (RW‑ii) Karim (RW‑iii) Ghaffar (RW‑iv) Syed Ali besides himself. Learned Civil Judge‑cum‑Controller allowed the eviction application by means of judgment dated 20th February, 1992 directing appellant to hand over vacant possession of Shop Nos.10‑5/101‑952 and 953 Brewery Road, Quetta to landlord Malik Habibullah. Aggrieved from aforesaid decision, present appeal was filed on 2‑3‑1992.
5. Mr. Mumtaz Hussain Baqri, Advocate strenuously contended that appellant; on receiving notice of eviction application immediately deposited/tendered the arrears of rent, therefore, he was entitled to protection of proviso to section 13(2)(a) introduced through Ordinance VIII of 1985/Balochistan Urban Rent Restriction (Amendment) Ordinance (PLD 1985 Balochistan Statutes 72). It was further argued that evidence adduced in the case does not establish subletting, therefore, conclusions of trial Court in that behalf are defective. Reliance was placed on the observation in case PLD 1980 Karachi 126.
6. On the other hand Mr. Tariq Mahmood, Advocate vehemently opposing the appeal argued that default of appellant from October, 1979 to March, 1980 as well as persistent failure to pay or tender the rent since April, 1980 was not disputed. He emphasised that plea raised by appellant in the written statement was inconsistent with willingness to pay the rent, therefore, he could not avail protection of Ordinance VIII of 1985. To supplement his submission, reliance was placed on the observation in case Hazrat Umar v. Zafar Majid PLD 1991 SC 138. He further contended that subletting was established therefore on said issue, decision of trial Court does not suffer from any defect or illegality.
7. I have carefully considered the arguments addressed by learned counsel for parties.
8. It is an admitted position that appellant has not paid rent to respondent/landlord with effect from April, 1980. Attempt was made to suggest that landlord on account of favour shown by brother of appellant had voluntarily declined to receive the rent from him. On such view of the matter protection of amending Ordinance VIII, of 1985 was claimed. Relevant provision is reproduced here for ready reference :‑‑
9. "Provided further that where the application made by the landlord is ‑on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made he shall make an order rejecting the application".
10. It is a matter of record that appellant had failed to pay the rent for more than (ten) 10 years commencing from April, 1990 when eviction application was instituted. Similarly on previous occasion, from October, 1979 upto March, 1980 default was committed by him. Pleadings further disclose that appellant had not expressly admitted liability regarding rent due, rather efforts were made to suggest relinquishment of right by landlord as regards recovery of rent. In the peculiar circumstances explanation furnished by appellant, is neither reliable nor plausible, therefore must be excluded from consideration. There is no gainsaying the fact that tenant has legal and moral obligation to tender rent with complete promptitude when it falls due. Section 13(2)(i) of Balochistan Rent Restriction Ordinance VI of 1959 mentions a period when non‑payment of rent becomes actionable. Amending Ordinance of 1985 certainly makes default condonable provided liability on this score is explicitly admitted, indicating repentance with willingness to clear all the dues. But question arises whether admitted continuous non‑payment of rent for ten long years could attract protection of amending Ordinance VIII of 1985 reproduced above. I am afraid such construction or relaxation would frustrate real spirit and object of law. Facility contained in the amending Ordinance VIII of 1985, appears to minimize pangs of prolonged litigation where default for al moderate period has occasioned for the first time. But it cannot embrace limitless or contumacious non‑payment for extraordinary or unreasonable period of time or repetition of such conduct. Identical provision of amending Ordinance of N.‑W.F.P. has been examined by Hon'ble Supreme Court in case Hazrat. Umar v. Zafar Majid PLD 1991 SC 138. Relevant observations are reproduced below:‑‑
11. "Taking advantage of this amendment an argument has been advanced in this appeal that the liability to pay the rent for the default period was not denied by the appellant. His only plea was that the respondent landlord having declined to receive the rent in an ordinary mode, the appellant tenant was compelled to remit the amount, through money order but the landlord had refused again to receive the amount Therefore, as argued by the learned counsel, the condition laid in the afore quoted proviso to avoid eviction on the ground of default had been satisfied.
12. We do not agree with him. It was disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly, appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the proviso would have been satisfied if the tenant would have, at proper time, accepted, amongst other conditions his liability to pay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in proviso. In this case none of the conditions is satisfied. For example the appellant did not accept this liability to pay the rent. As to the facts, when he had filed the written statement, the rent, according to his own admission in para. 5 of his written statement was still due.
13. Notwithstanding the aforementioned averment in the written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the Proviso. Accordingly, he cannot get any advantage on account of the newly added proviso."
14. In the instant case also appellant had raised disputed question in the written statement. Besides as mentioned above, non‑payment related to unreasonable period, and contains repetition of default.
15. For the above discussion and relying on the aforequoted observation, I am inclined to hold that appellant is not entitled to protection claimed by him and was liable to ejectment on account of wilful default in payment of rent.
16. Now reverting to question of subletting, it may be seen that there is positive evidence showing relationship of master and servant between appellant and two respondents. They in their respective versions have unequivocally confirmed this position. Besides respondent landlord and all other witnesses independently expressed about working of respondents 2 and 3, at shops in dispute on behalf of appellants for last more than 7 to 8 years. Appellant is admittedly a contractor and manages his affairs in that behalf through respondents 2 and 3 who are working for him: There is no tangible evidence on record which may indicate sub‑leasing of premises to respondents 2 and 3. The conclusions of trial Court on this issue are based merely on conjectures and impressions which cannot be sustained. Accordingly I am inclined to reverse findings of trial Court on this issue and hold that subleasing of premises to respondents 2 and 3 has not been established.
17. Thus on account of findings pertaining to wilful default committed by appellant, as already discussed above decision of Controller directing eviction of appellant is upheld. Consequently appeal stands dismissed. However appellant is granted four months' time to hand over vacant possession of the premises. Parties are left to bear their own costs.
18. AA./413/0 Appeal dismissed.