NOOR ALI Versus MUHAMMAD NOOR PATHAN

1. The appellant by this appeal has challenged the orders passed by the Ist Rent Controller, West Karachi, on 31-8-1986 whereby he had ordered the ejectment of the appellant/tenant. Briefly the facts are that the respondent who is the landlord of the House NO.A-593 in Block `C' North Nazimabad (hereinafter referred to as the premises) had filed the application on 13-9-1982 for ejectment against the present appellant/tenant on the grounds of default and personal requirement. His case is that the premises were rented out to the appellant on the monthly rent of Rs.300 payable in advance by 15th of each calendar month, which was to be deposited in the Bank account of the respondent. According to the details given by the respondent in paragraph 5 of the application, the present appellant started depositing the rent in lump sums from 16-3-1978 and thus committed default. For example rent for the months of November 1979 to August 1980 was deposited in Bank on 27-1-1981 and rent for the months September 1980 to December 1980 was deposited on 18-5-1981 while rent for January 1981 to July 1981 was deposited on 2-12-1981 and thereafter no rent was deposited by the present appellant. It is also contended that the respondent/landlord who is employed in Bahrain now desires to settle in Pakistan and requires the premises for residence of his spouse and children and after settling them here he also intends to come back to Pakistan. The present appellant filed his written statement and contested the matter. His case is that there was no such stipulation between the parties to pay the monthly rent in advance but factually the respondent had delegated a power of attorney to his relative Mr.A.K. Khan Income Tax Officer, Karachi, to collect the rent and that the said Mr. A.K. Khan had advised the appellant to deposit the amount of rent according to his convenience in lump sums in the account of the respondent as there is no harm in doing so since the respondent is in Bahrain and there will be no harm caused in doing so. He also claimed that this practice was accepted by the attorney of the respondent who never objected nor did he ever serve any notice in this regard. The appellant also claimed that after the deposit of amounts as mentioned in the application by the respondent, he also deposited Rs.3,000 being the rent for 10 months on 18-7-1982 and Rs.1,500 on 25-9-1982 and as such not only the entire period was covered but advance rent had also been paid. The appellant also claimed to have paid Rs.1,890.35 towards the property tax to the Excise and Taxation Department and was entitled to adjustment thereof as well as Rs.7,982.60 which he spent towards the repairs. The appellant denied that the respondent required the premises in good faith for personal use. The learned Rent Controller decided the issue of personal requirement against the respondent but allowed the ejectment application on the ground of default.

2. I have heard the learned counsel for the parties and have also perused the record of the rent case. In the present case the respondent/landlord did not file his own affidavit but filed the affidavit-in-evidence of his attorney Abdul Sattar Khan who was appointed as such by a power of attorney signed and attested only on 30-8-1982. He could not be cross-examined due to absence of counsel of the appellant and his side was closed on 23-2-1985 and then the side of appellant was also closed on 27-3-1985 for similar reasons and the case was then adjourned to 28-4-1985 for arguments. The case was then being adjourned from time to time till 3-2-1986 when it was transferred to the Court of Ist Rent Controller. The appellant then on 26-2-1985 moved an application for setting aside the orders dated 23-2-1985 and 27-3-1985 and to allow him to cross-examine the attorney of respondent and to file his affidavit-in-evidence. This application was supported by his own affidavit and that of his previous Advocate. This application was dismissed on 14-4-1986 mainly on the ground that it was a belated application. However, the case was then adjourned for about 10 hearings for passing final order. In the meantime on 30-7-1986 the appellant moved application under section 20 of the Sind Rented Premises Ordinance read with Order 11 Rule 14 C.P.C. seeking to bring on record the original tenancy agreement and the notice sent to appellant by the Advocate of respondent through his attorney Mr.Qayum Khan. This application was also dismissed on 31-7-1986 and then final order of ejectment was passed on 31-8-1986.

3. Mr. Salim Karamally has submitted that Abdul Sattar Khan, the attorney of the respondent was constituted as such only on 30-8-1982. He does not say in his affidavit that he was present at the time of appellant being inducted as tenant nor he claims to have been collecting the rent. According to him it was Abdul Kadir Khan who was the attorney of the respondent in 1969 and it was he who had inducted the appellant as tenant and that in the written-statement filed by him he has said that this Abdul Kadir Khan (A.K.Khan) had permitted him to deposit rent in lump sum. It is further contended by the learned counsel for the appellant that this Mr.A.K. Khan has been deliberately kept back by the appellant but a new attorney has been appointed on 30-8-1982 on the same date when the application for ejectment was drafted 30-8-1982 for the purpose of this application and therefore his affidavit has no evidentiary value. From this Mr. Salim Karamally has further submitted that non-examination of Mr.A.K. Khan would give rise to presumption that had he been examined, his evidence would have gone against the respondent. In the circumstances the learned counsel for the appellant has submitted that payment of rent in lump sum as permitted by Mr. A.K. Khan would not render the appellant liable to ejectment. He has placed reliance on the case of Abdul Aziz v. Abdul Ghani (1986 SCMR 1857) wherein it has been observed:-

4. The perusal of the details of the receipts covering the period July, 1974, to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition."

5. The learned counsel for the appellant then has submitted that in these circumstances the tenant could not be held liable unless he was put on notice by the landlord. He has placed reliance on the case of Abdul Latif v. Munir Ahmed PLD 1987 Karachi 460. In this case it has been held:-

6. "I am of the view that past conduct of the landlord which is proved by the six rent receipts is sufficient evidence in proof of assertion that landlord is in habit of accepting rent periodically. In this view I am fully supported by the case of Abdul Aziz v. Abdul Ghani (1986 SCMR 1857). If the landlord wanted his impression about past conduct to be erased, then he should have put tenant on notice or informed him that acceptance of rent in the past in lump sums was an act of condonation and the same is not to be treated as standard practice and rent has to be paid every month when it is due and failure of tenant in that context would make him liable to eviction, only then tenant would be deprived of this particular defence. In the instant case landlord does not claim to have done so.'

7. Repelling the above contention of the appellant's counsel Mr. Nasim A. Farooqi has submitted that the non-payment of rent within due time amounts to the wilful default. He has contended that the act of acceptance of rent by the landlord periodically would not absolve the tenant of his liability but this could at the most be a mere act of condonation on the part of the landlord. He has placed reliance on the case reported in 1984 SCMR 404. However, there is the case of Jamaluddin v. Mst. Pari Jan (1984 SCMR 403). This case has no bearing on the present case. Mr.Farooqi has then relied on the case of M/s. Tar Mohammad Janoo & Co. v. Taherally and others (1981 SCMR 93). In this case it has been held:--

8. "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month."

9. He has also placed reliance on the case of Tahir Ali and another v. Mesers H Akbar & Co.Ltd. (1989 CLC 710).

10. Mr.Nasim Farooqi the learned counsel for the respondent has then drawn my attention to paragraph No.1 of the rent agreement wherein it is provided that the rent for each month is payable in advance by 15th of the relevant month. Mr.Salim Karamally for the appellant has also relied on this agreement to prove that it was MrA.K. Khan who had inducted the appellant as tenant and that then he permitted the appellant to pay rent periodically to lump sums. From this agreement he also wanted to show that the payment of property taxes and carrying on the repairs was the responsibility of the landlord failing which the appellant had incurred expenditure on the same which was adjustable against the rent. This agreement was sought to be brought on record by the appellant but the same was rejected by the Rent Controller. In view of the above since both parties are relying on one or the other clause of the said agreement, I am of the view that Rent Controller should have allowed it to be brought on record. Mr. Salim Karamally has referred to the affidavit wherein it has been explained that the same could not be produced earlier as his side was closed. Mr. Nasim Farooqi has then relied on the case of United Bank Limited v. Eshan Ellahi (1989 CLC 287) wherein it has been held that rent could be paid only in 3 modes as provided in section 10 of the Sind Rented Premises Ordinance and from this he has argued that the deposit in Bank is not the proper tender. In my view this case also does not help the respondent as in the present case it is the admitted position that the arrangement between the parties was that the appellant was given the Bank account number of the respondent to deposit the amount of rent therein as contended in paragraph No.4 of the application for ejectment.

11. The next point urged by Mr. Salim Karamally is that in the circumstances of the case the learned Rent Controller should have allowed the appellant to bring on record the said rent agreement and should have also allowed him to cross-examine the attorney of the respondent to bring out the truth. He has also referred to the statements of accounts produced by the respondents to show that noel only deposits of rent were periodical but also the withdrawals of the rent by the respondent were periodical. He has also relied on the case of M/s. B.C. Aga & Co. v. Fakhruddin (IInd RA. No.5 of 1986) decided on 29-5-1988, wherein it has been held:-

12. "Taking into consideration the aforesaid authorities and provisions of law of West Pakistan Urban Rent Restriction Ordinance one cannot escape the conclusion that a plausible explanation has been given for the default. No hard and fast rule for exercise of discretion can be laid down as it entirely depends upon the facts and circumstances of each case. The landlord had adopted a mode of realising rent consistently for a long period whereby the tenant was led to believe that if rent is paid in that manner it will not amount to a default. In such circumstances if the landlord by fraudulent means creates a default, the discretion may be exercised in favour of the tenant.

13. The concluding paragraph of the order of the Rent Controller reads:

14. "However before parting I may point out that I gave second thoughts to allow some evidence to be brought on record for complete dispensation of justice but found it to be not warranted for even in such eventuality different findings than already reached could not be given."

15. From the above discussion I am of the view that if the Rent Controller had allowed some evidence the same would have had some bearing on the case.

16. Lastly the learned counsel for the appellant hay submitted that the lower Court should have set aside the orders passed on 23-2-1985 and 27-3-1985 as sufficient grounds had been shown being that the appellant was out of country and that he had entrusted the matter in the hands of his counsel who happens to be the president of an organisation concerning the prisoners and mentally deranged persons who had to leave the city urgently in respect with above work. This contention is also supported by the affidavit of the advocate himself. These facts are not denied by the respondent in his objections filed to the said application.

17. In reply to above contention Mr. Nasim Farooqi learned counsel for the respondent has placed reliance on the case of Muhammad Idrees v. Mst. Shamim Akhtar (1980 SCMR 787). With respect I am of the view that the point involved in the above case was with regard to the setting aside of ex parte order whereas the point involved here pertains to the reopening of the side of appellant.

18. No doubt the appellant was not present before the Court to cross examine the respondent's attorney or to file his affidavit-in-evidence. But this was not a case where the Rent Controller had passed the order to proceed ex parte. Reference may be made to the case of East and West Steamship Co. v. Queensland insurance Co. (PLD 1963 Supreme Court 663) wherein it has been held:--

19. "The question was raised at a late stage of the argument before us that in acting upon evidence so received, the trial Court had not proceeded in accordance with the rules governing the safe dispensation of justice. Even though the defendant-company had failed to appear to contest the suit, it was nevertheless the duty of the Insurance Co. to establish that loss had in fact taken place that the loss was evaluated in terms of money, and that this had been done in such manner as to inspire confidence. There can be no doubt of the duty of the Court to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party."

20. From the above discussion I am of the view that the point involved in the case is not that the tenant has paid rent periodically in lump sums after a gap of long periods but the point involved is whether the tenant has done so with the consent of the person who inducted him as tenant. The other point involved would be as to whether the tenant was entitled to adjustment of the expenses incurred by him on repairs and payment of taxes. Both these points require evidence.

21. I, therefore, set aside the impugned order and also the orders passed by the Rent Controller on 23-2-1985 and 27-3-1985 and remand the case with the direction that the appellant be permitted to cross-examine the attorney of the respondent and also to file his affidavit-in-evidence. The appeal is allowed in the above terms. However, there will be no order as to costs.

22. M.Y.H./N-203/K

23. Appeal allowed.