AZIZ DARUGAR Versus ISRAFEEL AND SONS

ORDER

MUHAMMAD IQBAL KALHORO, J.--- Petitioner is aggrieved by the order dated 14.03.2012 passed in F.R.A. No.317/2010 by V-Additional District Judge, Karachi on application filed by respondent No.1/Israfeel and Sons Karachi under Order XLI, Rule 27, C.P.C. for producing additional evidence e.g. pugri agreement, receipts, rent receipt of previous tenant and receipts of receiving pugri amount. The said application was filed by the respondent on the grounds that those documents were not filed by him due to the fact that the shop in question was burnt and he was under the impression that the said documents were placed in the shop and were also burnt, but when he found them in his house, he filed the application for its production. The appellate Court while deciding this application remanded the matter to learned trial Court with direction to decide the matter afresh after allowing the respondent to lead additional evidence in the terms as stated above.

2. Case of the petitioner is that he is the owner of shop No.BVI(3)/121/13 (G-3), in Haji building, constructed on plot No.SR 8/7/G-1, 2,3, Hassanali Effendi Road near Light House, Karachi, which he had rented out to the respondent in 1992. But then on account of the respondent's default from November 2001 to April 2002, its failure to pay water and conservancy charges, making additions and alteration in the premises and personal bona fide need, he filed a rent case for ejectment against the respondent which was dismissed vide judgment dated 24.07.2010. He filed the appeal against such dismissal and while it was pending, the respondent filed the subject application on which impugned order was passed.

3. Learned counsel has argued that during pendency of the rent case, the respondent had filed the application under Order VI, rule 17 seeking amendment in affidavit-in-evidence to the effect that it may be allowed to file said documents, which was dismissed vide order dated 20.4.2010 and against which no proceedings were filed by it, therefore moving another application for same relief in the appellate court was neither maintainable nor it could have been allowed in the said terms; that default of the respondent in payment of rent and making alteration in the premises without permission of the petitioner were established by the pleadings filed and evidence adduced by the respondent in the rent case, but both the courts below did not attend to it; that the appellate court instead of remanding the case to the learned Rent Controller ought to have decided it on merits. He has further contended that in the written statement, no such plea that the premises was given on pugri basis was taken by the respondent, but only subsequently as an after-thought such plea was devised, which, however, according to him, could not be considered even on merits as any agreement on pugri basis is considered by the courts as void and illegal. He has relied upon 1991 MLD 801 and 1994 CLC 2422 in support of his arguments.

4. Rebutting the above contentions, learned counsel for the respondent has argued that instant petitioner is not maintainable against an order interlocutory in nature; that this court while exercising jurisdiction under section 199 of the constitution cannot look into evidence of the parties. Regarding failure of the respondent to challenge order of dismissal passed on its application seeking production of same documents before the Rent controller, he states that it was because of the fact the order being interlocutory in nature was not amenable to the appeal. He relied upon the case laws 1994 MLD 143 and 2012 MLD 78 Karachi in support of his arguments.

5. I have heard the parties and perused the record and the case laws cited at the bar. Insofar as issue of maintainability of this petition raised by the respondent counsel is, it may be observed that under the writ of certiorari this court can examine any order passed by the subordinate courts when the court acts without jurisdiction or in excess of it or fails to exercise jurisdiction. And while examining the legality of the order, no bar can be put on the jurisdiction of this court to attend to the evidence of the parties recorded in the trial. Additionally, the contention in this regard was that the order impugned is interlocutory and cannot be challenged in constitutional petition; its perusal however does not suggest so. Learned appellate court through the impugned order has disposed of the entire appeal, and admittedly after such disposal no proceedings were pending before it to presume that the impugned order is interlocutory. On merits, I have not found any case in favour of the respondent either. In the written statement, it has been admitted by the respondent that it had not paid rent from November 2001 to April 2002 and for the first time he sent the money order on 12.03.2002, but it returned undelivered for want of correct address. The explanation offered by the respondent for the default is that the petitioner would collect rent by visiting the shop but then in order to make it defaulter, he did not visit the shop for the said months, and also did not provide his fresh address so that the respondent could have sent rent to him. This explanation could hardly be considered valid in law. To pay rent was the duty of the respondent, which it could not avoid on the ground that the landlord stopped visiting the demised premises. And, notably, I have seen that in evidence, the respondent has admitted to have the phone number of the petitioner, which is of his residence, and it is also obvious that the respondent did not make any contact with the petitioner on that number for the purpose of paying him rent. In law if the tenant fails to pay rent in respect of the premises in his possession within 15 days after the expiry of period fixed by mutual agreement between him and the landlord for payment of the rent, or in absence whereof within 60 days after the rent becomes due for payment, the landlord can maintain his ejectment application against the tenant. Non-payment of the rent to the petitioner for 5 months stands established and there is nothing on record to suggest that the respondent tried to avoid default by making any serious efforts for payment of rent. Regarding making alteration in the suit premises, learned counsel for the respondent himself has put a suggestion to the petitioner in his cross-examination that the respondent made it before the shop was burnt. And there is nothing on record that the alteration in suit premises was made by the respondent with the permission of the petitioner.

6. Relating to the plea of the respondent that it had acquired the property on pugri basis and therefore production of the documents establishing such plea may be allowed, suffice it to say that in the written statement filed to the rent case, the respondent has not taken this plea. Even it has not been urged therein that the respondent could not file such documents under the impression that those were placed in the suit shop and were burnt. MRC No.490 filed for depositing the rent in the court by the respondent also lacks such details. And therefore if the documents are allowed to be placed on record, they being beyond pleadings of the respondent would not be considered, and markedly just because there is a purported agreement of pugri, the petitioner cannot fail to maintain his application for ejectment on the grounds as stated above. It is also worth noting that the respondents through application for amendment filed before the Rent Controller did not seek any amendment in the written statement but in its evidence which had already come on record. Learned counsel for the respondent could not satisfy as to the under said provision of law viz. Order VII, Rule 17, any amendment in the evidence can be sought by the party. The appellate court while remanding the matter back to learned Rent Controller lost sight of the fact that the respondent had failed in producing the documents and had not challenged such failure, it was required to look into merits of the case. The course whereby learned appellate court remanded the case back to the learned Rent Controller on an application for production of certain documents cannot be sanctified under any law. It could have either allowed the application by bringing the documents on record and then decided the appeal on merits, or directed the trial court to record such evidence and send back such record to it; or dismissed the application and proceeded to decide the appeal on merits. It is thus clear that the appellate court failed to exercise the jurisdiction, which warrants interference by this court. And as I have looked into evidence of the parties with the assistance of learned counsel, there is no need to remand back the case to the appellate court; the grounds as discussed above on which the application for ejectment was filed have been proved. Resultantly, the impugned orders are set aside; the application filed by the petitioner is allowed. The respondent is directed to vacate the suit premises within the period of 30 days from today.

ZC/A-53/Sindh Petition allowed.