ISMAIL Versus SHER BANO

1. JAVID IQBAL, J.‑‑ This appeal by special leave has been filed by Ismail appellant who is tenant of Mst.Sher Bano respondent; since deceased, now represented by the present respondents.

2. The brief facts leading to this appeal are that Mst.Sher Bano respondent applied for the eviction of the appellant from the demised premises on the grounds that he was a defaulter in payment of rent and had damaged the property and that she required the premises for her personal use. The Rent Controller vide his order dated 31st May, 1982 respecting appellant being a defaulter, arrived at the conclusion that Mst. Sher Bano respondent failed to establish that the respondent was a defaulter or that he had damaged the property. But he ordered the ejectment of the appellant on the ground that Mst.Sher Bano respondent required the premises for her personal use. The aforesaid order was challenged by the present appellant by way of First Rent Appeal before the High Court of Sind at Karachi and learned Single Judge vide his judgment dated 11th December, 1983 was not impressed by the ground of bona fide personal need on the basis of which ejectment had been ordered by the Rent Controller, but accepted the other ground to the effect that the appellant was a defaulter, and thus the appeal of the appellant was dismissed.

3. Leave to appeal was granted in this case inter alia to consider as to whether the High Court had erred in reversing the finding of the Rent Controller on the issue regarding alleged default in payment of rent which was decided in favour of the appellant particularly when no cross‑appeal had been filed against the same by Mst.Sher Bano respondent landlady.

4. Learned counsel for the appellant argued before us that the Rent Controller while deciding the issue pertaining to default in payment of rent on the part of the appellant had arrived at the following conclusion:

5. "It is alleged that the opponent did not pay the rent since October, 1979, but no other proof in his behalf has been given by the landlady. On the contrary even the contention of the tenant that he remitted the rent through money order and ultimately commenced paying the same in the Court has not been contested by the applicant, and or her attorney. This goes to prove that the allegation of default in payment is decidedly baseless and is hereby rejected."

6. It has been submitted that Mst.Sher Bano respondent did not file an appeal or cross‑appeal against this finding of the Rent Controller as the case was decided in the favour. However, the appeal was filed in the High Court by the tenant /appellant but the learned Single Judge reversed the said finding while dismissing the appeal on another ground. According to the learned counsel this could not be done in a rent case as rule 33 of Order XLI of the Code of Civil Procedure, which authorities the Court hearing an appeal to pass any decree or make any order which could have been passed or made as the case may require, was not applicable in the instant case. We called upon learned counsel for the respondents as to what he has to say on this point. He submitted that under section 21(3) of the Sind Rented Premises Ordinance 1979 the appellate authority after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, can make an appropriate order which shall be final. According to the learned counsel therefore, the learned Single Judge in the instant case could reverse the finding of the Rent Controller on the issue regarding default in payment of rent which the lower Court had decided in favour of the appellant even in the absence of any cross‑appeal by Mst.Sher Bano respondent. It was submitted that there was no need on the part of Mst.Sher Bano respondent for filing an appeal when her petition had been accepted by the Rent Controller. It was, therefore, only the appellant who as tenant was aggrieved by the order of ejectment and had filed an appeal. It was also submitted that there was no justification on the part of the Rent Controller to have arrived at the conclusion that the appellant was not a defaulter as on his part it was a clear misreading of the record. Learned counsel took us through the statement of Mohammad Siddiq attorney of Mst. Sher Bano respondent.

7. He had stated that the appellant used to pay rent upto October of November, 1979. He further stated that it was not correct that they had refused to accept rent offered by the appellant. It was also not correct that thereafter the appellant sent the rent to them by money order and that the rent so tendered was also refused. It was likewise not correct that then the appellant started depositing rent in Court. It was further submitted by the learned counsel that in the affidavit placed on the record by the attorney of Mst.Sher Bano respondent; he had categorically deposed that the appellant had not paid the rent since October, 1979. When the appellant took up the plea that he had been verbally offering rent to the landlady from October/ November, 197 9 onwards which was refused, he then sent money order which was also refused, and that thereafter he started depositing the rent in Court, this was denied by the other side. Learned counsel for the respondents took us through the cross‑examination of Abdur Rahman attorney of the appellant in order to show that the appellant had been a defaulter from October 1979 to November 1980. Abdur Rahman had produced money order coupon bearing No.5364 dated 4th November 1980 and the rent receipt for the month of September, 1979 issued in October, 1979. Thus, it was evident that money order was sent for the first time in November, 1980 whereas the last rent paid was for the month of September 1979. Learned counsel submitted that the High Court was correct in arriving at the conclusion that the order of the Rent Controller on this issue was not in conformity with the facts proved on record. In view of the fact that money order was remitted after the filing of the ejectment suit and the deposit of rent in the Court was also much after the filing of the rent case on 14th October, 1980, the finding of the Rent Controller that Mst.Sher Bano respondent had not denied the payment of rent in Court or the tender of rent by money order, was obviously erroneous particularly when the attorney of Mst.Sher Bano respondent made a positive statement that the rent offered by the appellant had never been refused. The appellant had only produced last receipt of payment of rent for the month of September, 1979 and then coupon of money order dated November, 1980. Thus, from September, 1979 onwards the appellant had neither paid any rent nor sent any money order until November, 1980 nor did he deposit any rent in Court until 4th November, 1980 which indicated that there was a default in payment of rent for a period of about 13 months without any satisfactory explanation. Learned counsel for the respondents submitted that the learned Single Judge was empowered to reverse the erroneous finding of the Rent Controller on this issue under section 21(3) of the Sind Rented Premises Ordinance, 1979. In this connection he placed reliance on p L D 1980 Lah. 52 Sh. Muhammad Ashraf v. Sh. Mohammad Almas in which it was held that an appeal against an order of ejectment did not require or provide for any cross‑objections and that when the order of eviction had been passed in favour of landlord he cannot file any cross‑objections or cross‑appeal but can only support ultimate order of eviction. Reliance was also placed on 1985 S C M R 241 (256), Haji Ibrahim v. S.Rehmatullah in which it was held as follows:

8. "The ordinary power of a Court of appeal is to scrutinize the judgment or order under appeal by reference to facts, circumstances, and record as before the Authority or Court passing the impugned order, supplemented by such further inquiry as may have been undertaken under section 15(6) of the West Pakistan Urban Rent Restriction Ordinance or under section 21(3) of the Sind Rented Premises Ordinance 1979 and administer the law of the land at the date when the appellate Court is administering it."

9. We have carefully considered the arguments of the learned counsel for the parties. Apparently the finding on the issue of default) of payment of rent arrived at by the Rent Controller was based on' misreading of evidence on record. However, he had decided the eviction petition in favour of the landlady Mst.Sher Bano respondent on another ground namely the premises being required for her bona fide personal use. Therefore, there was no question of her filing cross‑objections or cross‑appeal in the instant case. The appeal in this case was filed by the tenant i.e. Ismail appellant and the learned Single Judge while hearing the same under section 21(3) of the Sind Rented Premises Ordinance was empowered to reverse the finding of the Rent Controller on the issue regarding default in payment of rent decided in favour of the appellant even in the absence of any cross‑appeal/objection by the landlady i.e. Mst.Sher Bano respondent.

10. In the light of the above discussion we do not find any substance in this appeal which is accordingly dismissed. There shall be no order as to costs.

11. M.Y.H./I‑27/S ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.