A.P. MUHAMMAD Versus MUHAMMAD NAWAB
1. This First Rent Appeal is directed against the order dated 16-3-1985, passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 3190 of 1981 by which the appellants were ordered to be ejected from the cabin in dispute on the ground of default.
2. The brief facts giving rise to the present appeal are that the respondents filed an ejectment application before the learned Rent Controller in respect of Wooden Cabin being used as Panshop situated at Chosia Hotel, Karachi, on the grounds of default - in payment of rent from March 1981 to June, 1981, requirement for bona fide personal use, sub-letting and reconstruction. It was stated in the application that the opponents/appellants were tenants of the applicants/respondents in above Pan Cabin at the rate of Rs. 120 per month which includes electricity charges also, but the same subsequently increased to Rs. 210 due to increase in electricity rates. That they failed to pay rent from March, 1981 to June, 1981. That they need the cabin for their brother Muhammad Ayoob who intends to start his own business. That they wanted to construct the cabin in dispute. There was also an allegation that the opponents have sublet the cabin in question.
3. The appellants filed their written statement in which they denied the allegation of default. They further stated that rent was being paid to the appellants/respondents regularly but no receipts were being issued by them. That it was not a shop but it was a small cabin. That it was also denied that the appellants required the cabin in question for their personal bona fide use. That the applicants themselves were tenants of a hotel where the cabin in dispute is located and, therefore, the question of reconstruction did not arise. The allegation of subletting was also denied as according to them Abbas was their employee. That the respondent No. 3 had died which was in the knowledge of the applicants, while opponent No. 2 had left Pakistan. The tenancy was now being held by opponent No. l and L.R: s of opponent No. 3.
4. The learned Rent Controller framed the following issues:--
(1) Whether the applicants require the shop in dispute for bona fide personal use of applicants' brother Muhammad Ayub?
(2) Whether the applicants want to reconstruct the shop in dispute?
(3) Whether the opponents have sublet the premises?
(4) Whether the opponents are defaulter in payment of rent?
(5) What should the order be?
5. The respondents examined respondent Muhammad Nawab in support of their case, while appellant A.P. Muhammad was examined on behalf of the appellants. However, the learned counsel appearing for the respondents did not press issues Nos. 1 and 3. The learned Rent Controller decided issue No. 1 against respondents, but issue No. 4 was decided against the appellants, and, therefore, they were directed to vacate the premises within two months from the date of order, and put the respondents in vacant possession thereof. The present appeal is directed against the above order of ejectment.
6. I have heard Mr. K.B. Bhutto, learned counsel for the appellants, and Mr. Mirza Vaqar Hussain learned counsel for the respondents.
7. It was contended by the learned counsel for the appellants that the application was mala fide and the respondents wanted to eject the appellants by force and, therefore, a Civil Suit No. 4763 of 1980 was filed which was decreed against the respondents, and the present application was filed as counterblast to the above suit. That the appellants had deposited Rs. 12,000 as security with the respondents and therefore, default if any, could be adjusted from the said security deposit. He has further contended that the evidence of respondent Nawab was contradictory regarding the amount of rent. That he has further admitted that electric charges were paid upto March, 1983, in fact the statement of respondent that Rs. 115 were electric charges, and Rs. 120 was rent was absurd. That even if there was any default it was for two months only, and therefore the same could be condoned looking to the circumstances of the case. In support of his contention he has relied upon 1986 C L C 1758; P L D 1982 Kar. 188; P L D 1977 Kar. 285; 1980 S C M R 676; P L D 1980 SC 298; 1985 C L C 1392 and 1426 and 1984 SCMR24.
8. The learned counsel for the respondents has contended that the appellants were defaulters and therefore the order passed by the learned Rent Controller does not call for any interference. That the amount of security deposit was to be refunded to the appellants only after they vacated the premises; and therefore no adjustment could be made regarding the arrears of rent. He has further contended that the appellants failed to deposit the rent from March, 1981 to April, 1983 inasmuch as the first deposit was made by them on 22-5-1983 which is clear from the report of the Nazir. In support of his contention he has relied upon 1986 C L C 556; 1985 M L D 1256 and an unreported decision of the Supreme Court in Civil Appeal No. 678-K of 1986 decided on 15-9-1987.
9. I have considered the contentions of the learned counsel. It is the case of the respondents that the appellants have failed to pay them rent from March, 1981 to June 1981. It has been further argued by the learned counsel for the respondents that the appellants failed to pay the rent even after the filing of the ejectment application and the first deposit was made by them in the Court on 22nd May, 1983 which is clear from the report of the Nazir. The rate of rent according to them was Rs. 210 which included electric charges. The rate of rent was not disputed by the opponents. However, in cross-examination respondent Nawab admitted that electric charges were being paid by the appellants/opponents regularly at the rate of Rs. 115 but the rent was not paid to them, whereas the case of the appellants was that they had paid rent upto June, 1981 and they have been depositing rent in Court thereafter. In view of the statement of respondent Nawab on oath that rent has not been paid to them from March, 1981 to June, 1981 the burden was then shifted and it was the duty of the appellants to prove that they had been paying rent regularly to the respondents. There is an assertion from the appellants in the written statement and in the evidence of A.P. Muhammad that they have paid the rent for the above period to the respondents. The evidence of respondent Nawab of course shows that no receipts were being issued but in any case the fact remains that according to him the appellants had paid rent upto February, 1981. The fact that he has admitted that the appellants had been paying them electric charges regularly goes a long way to show that the respondent was speaking nothing but truth. Oral word of appellant A.P. Muhammad is not supported by any other evidence, moreover in view of the fact that the rent was neither offered nor paid to the respondents after the filing of the application but the arrears were deposited on 22-5 1983 clearly goes to show that the appellants were defaulters. So far as the contention of the learned counsel for the appellants was concerned about the rate of rent, in fact there was no dispute about the same inasmuch as it was admitted by the appellants in their written statement that the rate of rent was Rs. 210 p. m. which included electric charges. As far as the question of exercise of discretion in favour of the appellants was concerned, in fact the appellants appeared to be habitual defaulters which is clear from the fact that they did not pay or deposit the rent for a long time, and therefore the discretion could not be exercised in their favour. The decisions reported in Najamudin v. Zaheer Ahmed P L D 1982 Kar. 188; Zakaullah Khan v. Nawab Ali 1986 C L C 1758 and Muhammad Hussain v. Ghulam Ali P L D 1977 Kar. 285 relied upon by the learned counsel for the appellants are with utmost respect distinguishable, inasmuch as in the first case the stand taken by the tenant was that the landlord never recovered the rent regularly but he used to recover the same after intervals and that he had been paying the rent whenever demanded. That the landlord had avoided to accept rent on the ground that he was busy in preparing accounts and therefore the Rent Controller exercised discretion in favour of the tenant against which the landlord filed appeal in which it was held that under the provisions of section 13(2) of the Ordinance, Controller was not bound to order eviction in every case in which default in payment of rent has been proved. The Controller has ample discretion and the same, no doubt has to be exercised after taking into consideration all the factors, and the Court was of the view that the discretion was exercised in favour of the tenant properly and the appeal was dismissed. In the case of Zakaullah Khan the default was only for one month and therefore the High Court was pleased to set aside the order of the Rent Controller and the discretion was exercised in favour of the tenant. In the case of Muhammad Hussain since there was bona fide dispute regarding deduction of Rs. 15 p. m. towards adjustment of Rs. 3,000 deposited with previous landlord, it was observed that the dispute was bona fide and the tenant was not likely to invite his eviction by withholding Rs.15 per month and therefore Courts below were right in exercising discretion in favour of the tenant. As far as the decision in the case of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24 was concerned the observation made by their Lordships of the Supreme Court was in the nature of obiter dicta. In the above case it was observed that: "the additional period of default from October, 1979 upto filing of the second application in December, 1980 furnished independent cause of action."
10. The facts of the above case are totally different and distinguishable, inasmuch as the tenant had taken a plea in the first ejectment application that he was not served with a notice regarding transfer of ownership and therefore he was not liable for ejectment on the ground of default but he failed to pay the rent till there was direction for deposit and the landlord filed fresh application for ejectment which was allowed, appeal was dismissed, and therefore matter went before their Lordships of the Supreme Court. On the other hand, the decision in the case of Mst. Ameena Begum and others v. Mehar Ghulam Dastagir P L D 1978 SC 220 it was observed by their Lordships of the Supreme Court that:--
11. "Indeed in our considered opinion a discretion vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice."
12. This decision was followed in the case of Abdul Hameed Khan v. Mst. Ayesha Khatoon 1985 M L D 1256 wherein it was observed by Muhammad Zahoorul Haq, J of this Court (as he then was) that:--
13. "Where the cause of action had matured during the pendency of the eviction application, the ejectment order of the Rent Controller was maintained, and the appeal was dismissed."
14. In view of the above factual as well as legal position I am of the considered view that the appellants were defaulters in payment of rent from March, 1981 to June, 1981, and thereafter till the rent was deposited in the Court.
15. As far as the contention of the learned counsel for the appellants that the arrears of rent could be adjusted from the security deposit was concerned, the lease agreement shows that the tenants had to pay the rent on the 5th of every pr calendar month, and that they have deposited a sum of Rs. 12,000 in cash as security deposit. Para 6 of the lease agreement shows that on failure on the part of the lessees to abide by the terms and conditions herein the lessors shall be at liberty to cancel the tenancy agreement, and take vacant possession of the cabin; without intervention of the Court and without any notice. In the event of cancellation of the licence of the lessees and on getting; vacant possession of the cabin, the amount of security deposit mentioned above shall be refunded to the lessees.
16. In view of the above terms and conditions of the lease agreement the arrears of rent could not be adjusted from the security deposit and the same was to be refunded to the lessees only after the lessors were put in vacant possession thereof. In this connection I need not refer to the authorities cited by the learned counsel for the parties as all those authorities have been discussed by their Lordships of the Supreme Court in Mrs. Zarina Khawaja v. Agha Mebboob Shah Civil Appeal No. 68-K/86 relied upo n by the learned counsel for the respondents. In the above case seven questions were formulated by their Lordships of the Supreme Court and the question No. 6 reads as under:--
17. "Whether the use of security amount for absolving the tenant in this case from liability of eviction for non-compliance with the order of deposit, was permissible in law?"
18. The question was answered in negative, and it was observed that the security deposit in this case is to be applied by the landlord according to the terms quoted earlier, and to compensate himself at the time of the tenant handing over possession to him for unpaid rent and/or damage caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant/respondent from liability to make a deposit under section 16(2) and old section 13(6) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It was further clarified that the covenants in each agreement as to security will be considered according to the agreement itself.
19. In view of the above decision of their Lordships of the Supreme Court the amount of arrears of rent could not be adjusted from the security deposit.
20. In view of the above discussion the order of the Rent Controller does not call for interference, and the appeal is accordingly dismissed. However, I allow six months' time to the appellants to hand over vacant possession to the respondents subject to the condition that they continue to deposit monthly rent regularly. Mr. Vaqar Hussain has gracefully agreed to the grant of period of six months to the appellants.
21. H.B.T./A-37/K
22. Appeal dismissed.