DEEDAR AHMED Versus COOPERATIVE ENGINEERS LIMITED

The appellants had sought the eviction of the respondents on two grounds, firstly, that of default in the payment of rent for the months of November and December 1982 and January 1983 and, secondly, for their personal bona fide requirements. The respondents controverted both the grounds and according to them the usual practice of paying rent was through cheques and as practice rent for all these three months was sent by cheques which were duly accepted by the appellants but no receipt was issued by them in acknowledgment. As for the personal requirements, the respondents claimed that the appellants did not require the premises (office accommodation) for their bona fide use and occupation. On the basis of evidence adduced by the parties learned Rent Controller came to the conclusion that the appellants had failed to prove any allegation and, consequently, dismissed the ejectment application vide judgment dated 31‑8‑1987 which is impugned in this appeal. The appeal was kept aside for the whole day but none appeared for the appellants. As a result, learned counsel for the respondents was heard. In view of the absence of the learned counsel of the appellants and of the appellants, the appeal was liable to be dismissed for non‑prosecution but I have gone through the record of the case with the help of learned counsel of the respondents and am of the view that the appeal was also liable to be dismissed on merit as well.

2. As for the default in the payment of rent for the above‑mentioned three months, appellant Deedar Ahmad in his affidavit‑in‑evidence admitted having received letter dated 30‑1‑1983 (Annexure `A') sent by the respondents, stating that they had made the payment of rent for the disputed three months as per following details:

"Cheque No.CDK 994438 dated 21‑12‑1982

Rent for the Months of November and

December, 1982 C Rs.477/43 per month. Rs.954.86

Cheque No.CDK 995108 dated 06‑01‑1983

Rent for the month of January, 1983. Rs.477.43

(Cheques are drawn on Habib Bank Ltd. S.D.V. Branch, Abdullah Haroon Road, Karachi)."

The appellants not only admit the receipt of the above‑noted letter Annexure `A' but they also admit having replied it vide their letter dated 10th February 1983 Annexure `B'. In this letter they clearly state that it is in reply to the letter of the respondents dated 30th January 1983 and yet the appellants duly ignored to respond to the contents of Annexure `A'. They neither admitted nor denied, nor made any reference to, the payment of rent for the above‑noted three months in the manner indicated in Annexure `A'. The appellants also did not issue receipts for the above‑noted three months, as asked for by the respondents in the last para of Annexure `A', nor did they give any reason why these receipts were not being issued by them and based their letter of 10th February 1983 (Annexure `B') on altogether different subject, namely, eviction of the premises for their personal use and requirements. This is an implied admission on the part of the appellants that the rent was tendered by the respondents in the manner as alleged in letter Annexure `A' and the appellants had not issued receipts for the same. 1 am in full agreement with the learned Rent Controller that this material evasion by the appellants in their letter Annexure B', together with the admission of appellant Deedar Ahmad in his cross‑examination that rent was always paid by cheques, sufficiently proves the defence set up by the respondents that the rent for the above‑noted three' months was paid by them through cheques as per details given in Annexure `A'. since the tender of rent for all the three months was m time, :here is no default on the part of the respondents.

3. The appellants had tried to set up a new plea during the cross examination of R.W.1 Abdul Hameed, attorney of the respondents, that the tender of' rent through cheques was not proper because they were not issued by the respondents (M/s. Co‑operative Engineers Limited) but by some other person or entity. Firstly, this objection was not taken in the ejectment application anti, therefore, being out of the pleadings of the appellants, cannot be entertained. Secondly, there is no force in this objection. The cheques are negotiable instruments and transferable. It is immaterial under whose 1 signatures were they issued and on whose account were they drawn. It is eno,;i1‑i that they were for the appropriate amount, legally valid and encashable or transferable to the account of the appellants and were not stale. For that matter, if the rent had been tendered in cash, the appellant might as well had raised the objection that the tender was in the form of currency notes under the signatures of Governor of State Bank of Pakistan and the tender was not in hard‑cash and, therefore, not proper. Such an objection, if accepted, would bring to a grinding halt all commercial activities of the nation. It is, therefore, rejected. It may here be added that after the receipt of letter Annexure B', the respondents deposited the rent of the three disputed months along with the rent of February, March and April in M.R.C.No.596/83 on 12‑2‑1983 and they were ever since depositing the rent regularly. This deposit of rent in M.R.C. No.596/83 is an established position and a suggestion put to R.W.1 Abdul Hameed in cross‑examination in this regard shows that the appellants also concede to it.

4. As for the personal requirements of the appellants, the averments made by them are contained in para 4 of the ejectment application in which they state that they "required the demised premises for their bona ride personal use". The appellants did not disclose in what business they were engaged, how they happened to require the demised premises and what they intended to do after obtaining possession of the same. These averments were, on their very face, vague and carried no conviction. The appellants elaborated on the point in para. 9 of the affidavit‑in‑evidence of appellant Deedar Ahmad in which he stated that he came from a mercantile family and had been separated from his family business for about three years (prior to the filing of the affidavit‑in -evidence which was filed on 15‑5‑1983) and that he was in dire need of this room for his personal use to do his business and that he had no shop/office/business house in his possession or occupation in Karachi. The averments made in affidavit‑in‑evidence are also equally as vague as the averments made in the ejectment application and carry no more conviction than the latter did. It may also be noted that in the ejectment application the personal requirements were said to be of the appellants whereas the affidavit -in‑evidence of Deedar Ahmad confined the requirements to his own person and not to the requirements of appellant Ansar Ahmad. Moreover, it is clear from the evidence on record that M/s. Rahim Motors were inducted as tenants into another tenement of the same building in July 1984 as admitted by appellant Deedar Ahmad in his cross‑examination. Learned Rent Controller has elaborately discussed in his judgment the evidence on this point. If the requirements of appellant Deedar Ahmad had been genuine and bona fide, he would have surely put to his personal use the tenement which fell vacant and was, subsequently, given on rent to M/s. Rahim Motors in July 1984, even if this tenement had not been sufficient and suitable for his requirements, on the principle of "something is better than nothing", expecting to later shift to the demised premises in the present case if the same was decided in favour of the appellants.

5. Moreover, Deedar Ahmad admitted in his cross‑examination (recorded on 15‑3‑1986) that Pasha Motors had been their tenant and in place of the tenement in possession of Pasha Motors, 16 shops had been constructed. He, however, maintained that not he but his tenant Pasha Motors had illegally constructed these shops. This is not believable since the appellants did not bring any action against M/s. Pasha Motors. It is also difficult to believe that Deedar did not know that 12 of these 16 shops were lying vacant. (He had said so in his cross‑examination of 15‑3‑1986). Since he did not utilise any of these shops for his use, the bona fides of his personal requirements becomes all the mere suspect.

6. I also note that R.W.1 Abdul Hameed, attorney of the respondents, under whose signatures written‑statement of the respondents was filed, was put some suggestion in reply to which he stated that "it is correct that power‑of attorney has been given to me only for business affairs". I do not understand how such a suggestion was put to the witness. Firstly, the copy of power‑of‑attorney is on record and its contents will speak for themselves and no evidence is admissible whereby something is added to or subtracted from a document. Secondly, if the question, in reply to which the above‑noted admission had come from R.W. 1 Abdul Hameed, was put to indicate that Abdul Hameed was not authorised to rile written‑statement or his affidavit‑in- evidence on behalf of the respondents and had no authority whatsoever to do anything on behalf of the respondents in the rent proceedings, the appellants stand on a very weak ground. Clause 6 of the general‑power‑of‑attorney executed by the respondents in favour of Abdul Hameed fully authorises him to do everything in the rent proceedings on behalf of the respondents. This para. 6 is quoted below:‑

"6. To commence, prosecute, continue and defend all actions, suits, applications or legal proceedings whether Civil, Criminal or Revenue including proceedings before Income‑tax Authorities, KDA, KMC and to sign all applications, petitions, memo of Appeal, Revision, Affidavit and Vakalatnama on behalf of the Company.

It is thus evident from the above‑noted para 6 that Abdul Hameed was fully authorised to file written‑statement and give evidence on behalf of the respondents and also to do whatever was required to be done on behalf of the respondents in all legal proceedings (which term includes Civil Litigation, Criminal Litigation as well as litigation under the. Rcnt Laws). As such, the defence of the respondents did not suffer from any defect. ,

7. Learned counsel of the respondents pointed out to me that learned counsel of the appellants had been appointed special prosecutor in the Court of Special Judge under Suppression of Terrorist Activities Act and he even suggested that the hearing of the case might be adjourned. I am of the view that if the learned counsel of the appellants had been so appointed, it was all the more incumbent upon him to make adequate arrangements for the prosecution of this appeal in the High Court. For the same reasons, the appellants were also expected to be extra vigilant and should have been personally in attendance on the date of hearing. At any rate, the appellants or their learned counsel should have prayed for adjournment will in advance in case the learned counsel of the appellants was not in a position to attend the Court today. It is evident that the appellants and their learned counsel are both grossly negligent in pursuing the appeal. I therefore, declined to adjourn the case.

8. For what has been stated above, the appeal is dismissed for non-prosecution as well as on merits and with costs throughout.

A.A./D-90/K Appeal dismissed