UNITED BANK LIMITED Versus MOHAMMAD SIDDIQ BAWA GADIT
AZIZ-UR-REHMAN, J.--- Through this Constitutional Petition No. S-766 of 2013, filed on 24.05.2013, by Messrs United Bank Ltd. through its' duly constituted attorneys namely [i]. Asif Fatah Shaikh son of Abdul Fatah Shaikh and [ii]. Syed Moazzam Raza Rizvi son of Syed Muhammad Kazim Rizvi, against deceased Muhammad Siddiq Bawa Gadit through his 'legal heirs' i.e. Respondents Nos.2 to 13 and another whereby, the Appellate Court's Judgment dated 26.02.2013, [Annexure 'C' to the MoP], passed by learned IIIrd ADJ, Karachi-East [Respondent No.14 herein], has been called in question with a prayer that the 'impugned Judgment' dated 26.02.2013, be set aside as the same besides being in conflict with Order dated 27.1.2010 ['A-10' to the MoP], has been passed without proper application of judicial mind and resultantly the Rent Case bearing No.33 of 1997 [UBL v. M. Siddiq Bawa Gadit and others], be allowed as prayed. The prayer sought in the instant Constitutional Petition No. S-766 of 2013 reads as under:-
"It is therefore, humbly prayed that this Hon'ble Court may be pleased to set aside the Judgment dated February 26, 2013 of the learned Appellate Court [Respondent No.14] and allow the Rent Case bearing No.33 of 1997 as prayed therein, after calling the Record and Proceeding [R & P] of the Rent Case bearing No.33 of 1997 and direct the Respondents to vacate and handover the physical possession of the tenement. Any other relief(s) deem fit and proper considering the facts of the case, by this Hon'ble Court may please be granted in the interest of justice and equity."
7. The relevant facts giving rise to the filing of the instant Constitution Petition are that; UBL filed an Ejectment Application under section 15 of Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], bearing Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit] on 11.01.1997, on the grounds of 'default' in payment of monthly Rent @ Rs.200/- [Rupees Two Hundred only] w.e.f. 01.01.1996, till filing of the Rent Case in January, 1997 and sub -letting of the 'subject premises' i.e. Flat No.401, UBL Building Chowrangi Mahal, Gurumandir, Karachi ['subject premises'] with prayer as follows:-
"A That the Opponent be ejected from the premises detailed at Para 1 of the application, and please be directed to hand over peaceful and vacant possession thereof to the applicants, and
B. Opponent be directed to pay the rent and rent arrears and may also be directed to pay future monthly rent till the application is decided and the opponents are ejected from the premises and
C. The cost of the Application please be awarded throughout."
3. Later on, vide Order dated 16.12.1997, passed by learned IInd Senior Civil Judge, Karachi-East, service was 'held good' upon Opponent [Tenant]. Being relevant Order dated 16.12.1997, for ready reference is reproduced herein-below:-
"Case called. Applicant and his counsel are present neither the Opponent nor any one else appeared on his behalf though opponent duly served through publication vide news paper Nawa-e- Waqt, Karachi dated 22nd November, 1997, it is to be seemed that the opponent have no interest in the present case, hence the service is held good upon the opponent. Matter is adjourned for filing of Written Statement on the next date of hearing."
Despite service, however, no one come forward to contest the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit], thus, the tenant was declared 'ex-parte' and the Petitioner herein [Landlord], was directed to file 'ex-parte proof'.
4. At such stage of the proceeding, one of the legal heirs namely Muhammad Hanif Gadit son of late Muhammad Siddiq Bawa Gadit, filed a 'Statement' on 08.10.1998, wherein, the factum of death of the Tenant, was disclosed. The said statement dated 08.10.1998, for ready reference is reproduced herein-below:
"It is respectfully submitted that Muhammad Siddique Bawa Gadit son of Bawa Gadit has died at Karachi on "24 July 1982" in Holy Family Hospital. The Cantonment Executive Officer Karachi has issued a 'death certificate' of late Muhammad Siddique Bawa Gadit. As such the above ejectment case filed by the applicant United Bank Limited against a dead person is not maintainable in law and the same is liable to be dismissed on this ground alone." [Emphasis Supplied].
5. On receiving, copy of the Statement dated 08.10.1998, by the UBL-Landlord's counsel, as per 'DIARY' dated 18.10.1998, of Rent Case No. 33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], UBL [Landlord], filed an Application under Order I, Rule 10, C.P.C. read with section 151, C.P.C., on which notice was issued to the other side. The said Application under Order I, Rule 10, C.P.C. read with section 151, C.P.C., was later on granted on 12.10.1999. The 'material part' of Order dated 12.10.1999, reads as follows:-
"In view of above circumstances I am of the view that the applicant did not intentionally and deliberately filed rent application against the dead person and law also permits to add the legal heirs of the deceased as necessary party. The application is in time, therefore, I hereby allowed the application that add the legal heirs of the deceased and this application is hereby disposed of accordingly. Let the amended title be filed."
6. The aforesaid Order dated 12.10.1999, nevertheless, was challenged by 'one of the legal heirs' of deceased Muhammad Siddiq Bawa Gadit namely, Hanif Gadit in First Rent Appeal No.636 of 1999 [New No.288 of 2001 - Muhammad Siddiq Bawa Gadit through his son namely Hanif Gadit v. UBL], before the Court of learned 1st ADJ, Karachi-East. The said FRA, however, was 'DISMISSED ON MERITS' vide Order dated 30.05.2003. The 'operative part' of Order dated 30.05.2003, reads as follows:
"Consequently I hold that the appeal is not maintainable and is even otherwise without any legal force and the same is hereby dismissed in limini. Before parting with the Judgment it is mentioned here that the observation, if any given above will not affect the merits of the main Rent Case. The case is hereby remanded to the learned trial court for deciding on merits. In order to avoid multiplicity of litigation, the appellant is further directed to submit the list of all other legal heirs of the deceased tenant as he has stated in his Counter Affidavit to application Under Order I, Rule 10, C.P.C., but did not disclose their names and they may also be joined/impleaded in the said Rent Case. [Emphasis Supplied].
There will be no order as to costs."
7. Resultantly, all the legal heirs of deceased Tenant namely Muhammad Siddiq Bawa Gadit [i.e. Respondents Nos.2 to 13 herein] were brought on record by way of filing an 'AMENDED TITLE' on 02.11.2003. All the legal heirs of the deceased tenant thereafter, filed their common 'written statement' on 09.12.2003, in response to the Ejectment Application under section 15 of Sindh Rent Premises Ordinance, 1979, wherein, the 'allegations'/'averments' 'inter alia' regarding 'default' in payment of Rent and of 'Sub-letting' of the 'subject premises' i.e. Flat No.401, UBL Building Chowrangi Mahal, Gurumandir, Karachi by the Tenant[s] without permission of UBL [Landlord], were specifically denied/controverted.
8. In view of 'pro' and 'contra' versions, parties were permitted to lead evidence in support of their 'pleas'/'assertions'. From Landlord's-UBL's side, one Syed Moazzam Raza Rizvi filed his 'Affidavit-in-Evidence' along with 'several documents' i.e. Minutes of the Executive Board, Power of Attorneys of Executives/Principal Officers, Memorandum of Articles and Association of UBL/Landlord and Sub-Power of Attorneys, Medical Certificate dated 13.03.2001 of Ikram Aziz and Retirement Letter dated 27.06.2011, which documents were duly produced and exhibited as Exh.'A/1' to Exh.'A/12'. The UBL's witness namely Syed Maozzam Raza Rizvi thereafter, was also 'Cross-Examined' by the Tenant-Respondents' side's counsel.
9. Later on, from the Tenant-Opponents' side, Respondent No.2 herein, namely Hanif Gadit son of late Muhammad Siddiq Bawa Gadit, filed his 'Affidavit-in-Evidence' along with 'several documents' i.e. Pay Orders along with counter slips, Original TCS Receipts and Delivery Confirmation issued by TCS [Exh.'O/1' to Exh.'O/51'], Original Pay Order dated 24.09.1998, returned by UBL along with letter dated 25.09.1998 [Exh.'O/52' to Exh.'O/53']. Besides, the said witness also produced delivery details issued by TCS in respect of payment of rent through pay order and letter dated 04.11.1999 as Exh.'O/54', Copy of 'Postal Receipt' and Coupon of money order are produced as Exh.'O/55' and paid-up Challan of rent of MRC No.704 of 1998, as Exh.'O/57' to Exh.'O/63'.
10. The said Hanif Gadit thereafter, was 'cross-examined' by UBL's counsel at length. Apart from the evidence of aforesaid witness, from the tenant's side an application under section 20 of Sindh Rented Premises Ordinance, 1979, [In short SRPO, 1979], was later on, filed for summoning of an official from the office of TCS as witness which application, it appears was not only 'allowed' but the UBL's counsel was also permitted to 'Cross-Examine' the said witness viz. Aziz Ahmed Shaikh son of Karam Ali, ['DW-2']. In this regard the 'relevant portion' of order dated 07.09.2005, reads as follows:-
"The opponent in his prayer clause has very specifically prayed for summoning the witness to give evidence and produce/confirm the relevant documents. The opponent did not pray to summons the witness only to produce document. The witness was summons to give evidence and produce documents.
Under the circumstances when a witness summons to give evidence the other side has all rights to cross-examine him. Order accordingly." [Emphasis Supplied].
11. The 'Examination-in-Chief' of the aforesaid witness was recorded on 09.12.2005. Thereafter, the said witness ['DW-2'] was also 'cross-examined' on 04.11.2006 and 29.11.2006, at length by the counsel of UBL [Landlord]. Later on, when the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], came-up before the concerned learned Rent Controller on 5.10.2006 then, upon hearing, perusal of 'materials'/'evidence' available on record, and in the outcome thereof, the Points framed for 'determination' of the dispute, involved in the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others] are as follows:-
1. Whether the eviction is not maintainable under the law?
2. Whether the opponent has committed willful default in payment of rent?
3. Whether the opponent has sub-letted the rented premises?
4. What should the order be?
12. The learned trial court of IXth Senior Civil Judge/Rent Controller, Karachi-East, thereafter, 'instead of' deciding the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], on 'merits' in the light of 'evidence' and 'materials' available on record on all the aforesaid Points Nos.1, 2 and 3, somehow opted to pick-up only the 'Point No.1' and upon giving finding thereon, dismissed the 'Ejectment Application', merely on the basis of some admission'/'assertion' of landlord's Sub-Attorney namely Syed Moazzam Rizvi, stated to be made by him in his 'Cross-Examination'. The relevant piece, on the basis of which the Ejectment Application in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], was dismissed, reads as follows:
. . .
"It is correct to suggest that in the said power of attorney the bank have not authorized the Abdul Ghafoor to file Rent Case so also the affidavit-in-evidence on behalf of Bank. It is correct to suggest in the said sub-power dated 23-10-2001 Ex.A/9, the Abdul Ghafoor has not authorized me to give evidence in rent Cases. It is correct to suggest that no power of attorney Ex.A/6 was executed on 29-4-2003 and after power of attorney Ex.A/9 dated 23-10-2001. It is correct to suggest in said power of attorney dated 14-12-1999 and 21-09-1999 Ex.A/7 and A/8, bank have not authorized to give evidence and file affidavit-in-evidence on behalf of the applicant/Bank".
. . .
13. The learned trial court keeping in view the aforesaid portion of 'Cross-Examination' of landlord's sub-attorney, without going through the entire 'exhibited documents' i.e. Exh.'A/1' to Exh.'A/12', and properly appreciating the contents of Power of Attorneys i.e. Exh.'A/1' to Exh.'A/6' and Exh.'A/7' and only taking into consideration 'Point No.1', which pertains to maintainability of the Rent Case, the learned trial court, nonetheless, came to the conclusion that Rent Case bearing No.33 of 1997, filed by UBL [Landlord] against the Tenants [Respondents Nos.2 to 13 herein] is not maintainable and consequently, the 'Ejectment Application' of UBL/Landlord was dismissed on 05.10.2007 accordingly.
14. The 'material portion' of Judgment dated 5.10.2007, whereby, Ejectment Application under section 15 of Sindh Rented Premises Ordinance, 1979, in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], was dismissed, for ready and convenience purpose is reproduced hereinbelow:-
. . .
"From the above admission it is clearly proof that in the General Power of Attorney dated 14-12-1999 and 21-09-1999 there is no specific power in both the attorney regarding filing of affidavit-in-evidence in rent case and the attorney delegated no such powers to sub-attorney namely Syed Moazzam Raza Rizvi and admittedly in the Sub-Attorney dated 23-10-2001 there is no clause that the sub-attorney authorizing or empowering the sub-attorney to file affidavit-in-evidence and to give evidence in the rent case. In the light of above admission, position, the affidavit-in-evidence of sub-attorney is no legal value in the eye of law meaning thereby that no evidence has come from the side of applicant as the affidavit-in- evidence of sub-attorney is not admissible under the law of evidence.
PLD 1967 Karachi 424:-
(a) Civil Procedure Code (V of 1908), O.III, R. 1---Power of attorney---Person empowered by general power of attorney to appoint any third person to act as his agent or substitute and to exercise powers conferred on him---Such substitute or agent competent to exercise all powers conferred by general power of attorney on his own principal---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13. (P. 426] A
1997 MLD 2251:-
(a) Power of attorney---Power of attorney to give evidence---Attorney is whose favour General Power of Attorney was granted by principal had filed affidavit in evidence and appeared in Court to give evidence---Principal has concealed that power of attorney granted to attorney did not confer any express power on attorney to give evidence---Powers of attorney had to be construed strictly when attorney neither was entitled to file affidavit in evidence nor to give evidence on behalf of the principal as power of attorney in favour of attorney did not confer on him such powers. (P. 2253) A
In the light of above discussion and admissions, the ejectment application is not maintainable in law. Hence this point answered in affirmative. [Emphasis Supplied].
POINT NOS: 2 and 3:-
Admittedly the ejectment application is not maintainable under the law, therefore, I have no need to discuss the point of default in payment of rent as well as point of sub-letting. Consequently, both the points answered as redundant. [Emphasis Supplied].
POINT NO. 4:-
In view of my findings on the point No.1, I dismiss the ejectment application.
15. This time, UBL [Landlord] feeling 'aggrieved by' and 'dis satisfied' with the Judgment dated 05.10.2007, [Annexure 'C-7' to the MoP], opted to file First Rent Appeal No.130 of 2007 [UBL v. Akhtari Begum and others], before the Court of learned Vth ADJ, Karachi-East. Upon service, on 13.05.2010 when the aforesaid F.R.A. No.130 of 2007, came-up before the court then, after hearing, learned counsel for the parties, the said FRA was 'allowed' and the 'impugned Judgment' dated 05.10.2007, was set aside and consequently, the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others] was remanded back to the concerned Rent Controller with direction to decide the matter/Rent Case 'AFRESH' on 'merits', however, after re-hearing of the parties or their counsel.
16. The 'material relevant' part of the Judgment dated 13.05.2010, passed by learned Vth ADJ, Karachi-East, in First Rent Appeal No.130 of 2007 [UBL v. Akhtari Begum and others], reads as follows:-
. . .
Here it is suffice to say that I have minutely gone through the General Power of Attorney dated 27.4.1978 and reveals that Clauses 6, 9 and 12 of the general power of attorney empowered to the attorney to commence, prosecute legal proceedings whether civil, criminal or revenue either in such suits or proceedings or otherwise, appoint solicitor to make sign, verify execute plaints, petitions, written statement, memorandum of appeal, applications or necessary in the opinion of the attorney to be made signed, executed, verified, presented or file in respect of all lands, houses, buildings and other properties belonging to the bank.
In presence of above terms and conditions, it is established that the attorney was authorized to engage solicitor/legal agent as well as file applications in respect of affairs of the buildings, houses, lands, belonging to the appellant's bank. As such, the attorney has filed ejectment application under section 15 of SRPO, 1979 against the tenants of demise premises. Under such circumstances I am of humble view that for the purpose of filing the cases attorney needed no special permission from the principal when he is fully authorized to handle all proceedings either before competent court of law or competent authorities. Obviously, the status of the Rent Controller in a quasi judicial in nature and technicalities would not be over starched as to defeat very purpose of administering substantial justice to the parties. Here, I have been guided from case law reported in 2001 SCMR 1091 regarding the role of attorney it is held by their lordships as under:-
----Interpretation of power of attorney---Role of attorney --Scope---Power of attorney has two aspects: viz. the power to do something on behalf of principal which is generally beneficial to him and the power to exercise the discretion depriving the principal of his right to his assets, properties etc.---Part of the power of attorney which tends to accretion of the right to the properties and assets to the principal may not be interpreted in stringent terms---Where the attorney has given power to do all the things on behalf of the principal, such attorney cannot he deprived of the power to file suit or appeal on behalf of his principal. [Emphasis Supplied].
What the reasons discussed hereinabove and the dictum laid down by the superior courts (Supra) I am of humble view that the learned Rent Controller has committed error while deciding the rent case by ignoring legal aspects of the case.
So far the filing of the rent case against the dead person is concerned, I am of humble view that in spite of agitating such issue before the Rent Controller one of legal heirs has filed application under Order I, Rule 10, C.P.C. with the prayer to implead them as a necessary party and the legal heirs of the original tenant may be brought on record. Such application was allowed and all the legal heirs/respondents brought on record being statutory tenants by filing amended title, admittedly rent case was proceeded on merits and evidence was recorded on behalf of the respondent, as such, the plea of the respondent's counsel got no force as the same has already been washed out. [Emphasis Supplied].
Keeping in view of the aforegoing facts and circumstances, I am fully persuaded with contentions raised by the learned counsel for the appellant as well as case law cited by him are fully attracted to the facts and circumstances of the case, while with due respect the case law cited by the learned counsel for the respondent are distinguishable from the facts and circumstances of this case, hence not applicable. In result, the impugned Judgment is hereby set-aside, appeal in hand is allowed, matter is remanded back to the Rent Controller with direction to decide the matter afresh on merits, after re-hearing of the parties or their counsel, they are directed to appear before the Rent Controller on 25.5.2010. Office is directed to send back R&Ps to the Rent Controller forthwith. [Emphasis Supplied].
17. On 'REMAND', when the Rent Case No.33 of 1997 [UBL. v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], came-up before the Court of learned Senior Civil Judge and Rent Controller, Karachi-East then, upon hearing learned counsel for the parties findings were given on all the three [3] points i.e.:-
1. Whether the ejectment application is not maintainable?
2. Whether the opponent has committed wilful default in payment of rent as alleged?
3. What should the order be?
18. The learned trial court upon appreciating the 'evidence'/'materials' available on record and hearing, answered the 'Point No.1' in 'NEGATIVE' and Points Nos.2 and 3 in 'AFFIRMATIVE'. Resultantly, the 'Ejectment Application' was allowed vide Judgment dated 27.8.2010, [Annexure 'A-10' to the MoP], passed by the court of learned IXth Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No.33 of 1997, filed on 11.01.1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others]. The 'Operative Part' of the 'FINDING' on 'Point No.3', as per Judgment dated 27.8.2010, reads as follows:-
"Point No.3
In view of my above discussion, the ejectment application is hereby allowed and opponent is hereby directed to vacate the premises in question i.e. Flat No.401, UBL Building, Chorangi Mahal, Guru Mandir, Karachi and handover its peaceful possession of the premises to the applicant within 30 days from the date of this order." [Emphasis Supplied].
19. The Tenants [Respondents Nos.2 to 13 herein], thus, feeling 'aggrieved by' and 'dis-satisfied' with the Judgment dated 27.8.2010, [Annexure 'A-10' to the MoP], passed by the court of learned IXth Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], filed First Rent Appeal No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 12 others v. UBL], before the Court of learned IIIrd ADJ, Karachi-East 'inter alia' with a prayer that the Judgment dated 27.8.2010, whereby, the Ejectment Application in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], was allowed be set aside, as the same besides, being erroneous has been passed 'contrary to law' and without proper appreciation of 'evidence' and 'materials' available on record. The prayer sought in the Memo of F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 12 others v. UBL], reads as follows:-
. . .
It is, therefore, respectfully prayed that this Hon'ble Court, in the interest of justice and equity, be pleased to admit this appeal, call for R&P of the Case and after hearing and perusal of R&P set aside the impugned order dated 27-08-2010 passed by the IXth Senior Civil Judge and Rent Controller, East Karachi, in Rent Case No.33/1997 with Cost. [Emphasis Supplied].
. . .
20. On 26.02.2013, when the aforesaid F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 11 others v. UBL], came-up before the Court of learned IIIrd ADJ, Karachi-East, then, after hearing learned counsel for the parties, the learned ADJ, Karachi-East while, allowing F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 11 others v. UBL], the Ejectment Application filed under section 15 of Sindh Rented Premises Ordinance, 1979, [In short SRPO, 1979], was consequently, dismissed. The relevant 'operative part' of Judgment 26.02.2013, [Annexure 'C' to the MoP], for ready reference is reproduced here-in-below:-
. . .
"In the instant case the dispute between the parties over the rent from January 1996 onwards for which the documents are on record against which no evidence from the landlord available on record. Hence in my humble view it is the duty of the landlord to prove willful default and the learned trial court has not taken any evidence of the landlord while deciding the issue against the default but he has decided the case on surmises. Landlord has failed to establish his prima facie case as is his own version is very much contradictory, the facts of the case are not consists each other. On the contrary the tenant/appellant has produced sufficient evidence, however, the findings of the learned trial court are not proper, call for interference, hence stands set aside.
For the forgoing reasons the appeal is allowed and the rent case is dismissed." [Emphasis Supplied].
. . .
21. The Landlord [UBL], upon 'allowing' of F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 11 others v. UBL] and dismissal of Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], thus, feeling 'aggrieved by' and 'dis-satisfied' with the Judgment dated 26.2.2013, [Annexure 'C' to the MoP], passed by learned IIIrd ADJ Karachi-East, has now approached this court, by way of filing of instant Constitutional Petition bearing C.P. No.S-766 of 2013 [Messrs United Bank Ltd v. Mohammad Siddiq Bawa Gadit since deceased through his legal heirs i.e. Respondents Nos.2 to 13 and another], on 24.05.2013, 'inter alia' with a prayer that the 'impugned Judgment' dated 26.2.2013 [Annexure 'C' to the MoP] passed by the Appellate Court be 'set aside' and in the result thereof, the earlier 'Judgment dated 27.8.2010', [Annexure 'A-10' to the MoP], passed by the court of learned IXth Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], be consequently restored with direction to Respondents/Tenants in possession of premises, to vacate the 'subject premises' i.e. Flat No. 401, UBL Building Chowrangi Mahal, Gurumandir, Karachi and hand over its' vacant peaceful possession to the Landlord [UBL Petitioner herein] promptly.
22. On 15.10.2019 and 29.10.2019, when the instant Constitutional Petition bearing C.P. No.S-766 of 2013 [Messrs United Bank Ltd. v. Mohammad Siddiq Bawa Gadit since, deceased through his legal heirs i.e. Respondents Nos.2 to 13 and another], came-up before me then, I heard Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner [UBL-Landlord] and on conclusion of his arguments, thereafter, on 06.11.2019 and 22.11.2019, heard Syed Anayat Hussain Shah Bukhari, learned counsel for Respondents Nos.2 to 13 [Tenants] at length. The Petitioner's counsel, in rebuttal was finally heard on 11.12.2019 and available on record before me was also minutely gone through with the assistance of learned counsel for the parties. On conclusion of arguments on 11.12.2019, the case was thus reserved for Judgment.
23. Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner herein [UBL-Landlord], forcefully, contended that the 'impugned Judgment' dated 27.08.2010 [Annexure 'C' to the MoP at P-431], passed by learned IIIrd ADJ, Karachi-East [Respondent No.14], is a result of 'mis-reading' and 'non-reading' of 'evidence'/'materials' available on record, the same, as such, has resulted in 'mis-carriage' of justice. Further, the learned Appellate Court has also failed to consider the contentions of the Petitioner's counsel inter alia in respect of 'default' committed by the Tenants [Respondents Nos.2 to 13], since, 01.01.1996, till filing of the Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others] on 11.01.1997. Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner herein [UBL-Landlord], next contended that the learned Appellate Court, has badly failed to properly attend to and see the actual fact that the rent sent through Pay Order bearing No.PB 088929 dated 24.09.1998, for a total sum of Rs.400/- [Rupees Four Hundred only], allegedly stated to be rent for September 1998 and October 1998, as per record, was promptly returned by UBL [Landlords] with an 'endorsement' that 'UBL-Landlord', has already filed a rent case bearing No.33 of 1997 against the 'tenants' [Respondents Nos.2 to 13 herein], before a competent court of law. Needless to say, the factum of returning of the aforesaid 'Pay Order' has also been admitted in 'Cross-Examination' of Respondent No.2 herein. The rent, as 'claimed' by Respondents Nos.2 to 13 [Tenants], was later on deposited in Rent Misc. Application bearing No.704 of 1998, reportedly, filed sometime, in the month of November, 1998, which clearly establishes/shows the commission of 'willful default' by the Tenants [Respondents Nos.2 to 13], in respect of rent for the period w.e.f. 01.01.1996 to 11.01.1997. Moreover, learned Appellate Court, has also failed to consider that 'LAST RENT RECEIPT' [Annexure 'O/2' to 'written statement'], has not been produced in evidence. This position, it is needless to say, has also been admitted by the Respondent No.2, in his 'Cross-Examination'.
24. According to Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner herein [UBL-Landlord], the Respondent No.2 herein, [Tenant-LR], in his 'Cross-Examination' has also admitted that 'Last Acknowledgment of Rent' [Annexure 'O/2' to 'written statement'], was issued by 'Landlord' [UBL], only after receiving rent for the period January 1, 1995 to December 1, 1995, though it was not as per 'terms' and 'conditions' enunciated in the Tenancy Agreement of April 1, 1969. According to Mr. Abdul Haleem Siddiqui, learned Appellate Court i.e. Respondent No.14 herein, however, did not take into account the aforesaid admission which omission, indeed, amounts to 'mis-reading' and 'non-reading' of evidence. On this ground also, the 'impugned Judgment' [Annexure 'C' to the MoP] passed by learned Appellate Court, is patently illegal thus liable to be set aside.
25. Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner herein [UBL-Landlord], in furtherance of his arguments, contended that, in the case in hand, UBL/Landlord, used to issue 'rent receipt', however, only after receiving monthly rent. Per Mr. Haleem Siddiqui, in this regard not only the last rent receipt for the month of January, 1995 to December, 1995 was referred to but the same was/is also annexed with 'WRITTEN STATEMENT' of the Respondents [Tenants] as Annexure 'O/2'. Besides, to such effect, there is also a clear cut admission in the 'Cross-Examination' of Mr. Hanif Gadit [PW-11. Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner herein [UBL-Landlord], while, continuing his arguments further contended that learned Appellate Court has also failed to properly appreciate the spirit of section 10 of Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979]. Per learned counsel, procedure for remitting a 'money order' requires that it be tendered 'with a form' by the 'postman' and in case of acceptance of the 'money order' a receipt needs to be given by a 'payee' evidencing the delivery of money order, to remitter. In the case of any refusal, the 'money order' needs to be returned to the 'remitter' with an 'endorsement of refusal'. The learned Appellate court, however, in the case in hand, has failed and/or ignored this aspect of the matter as well. This position/fact explicitly shows that rent as claimed by the tenants herein was never sent/tendered. The non-compliance of section 10 of Sindh Rented Premises Ordinance, 1979, in its' letter and spirit, cannot be justified or excused. Any attempt made contrary to law regarding payment of rent, per Mr. Abdul Haleem Siddiqui, is of no legal effect and consequences.
26. The PAY ORDER as referred to hereinabove, per Mr. Abdul Haleem Siddiqui, was sent back to Tenants in the Month of September, 1998. As far as, the alleged 'Money Order' bearing No.3520 [Exh.'O/55'], is concerned, the same, was allegedly sent to one 'Imtiaz Shaikh', Karachi Head Office, UBL on October, 15, 1998. The arrears of rent deposited after a period of 90 days, indeed, amounts to a clear cut 'willful default' on the part of Tenants [Respondents Nos.2 to 13]. The learned Appellate Court, [Respondent No.13 herein], however, had badly failed to apply its' judicial mind while, passing the 'impugned judgment' dated 26.02.2013 [Annexure 'C' to the MoP]. The Tenants, it is needless to say, have also badly failed to discharge their duty viz-a-viz payment of monthly rent for the period w.e.f. January, 1996, till January 11, 1997, when, Rent Case No.33 of 1997, was filed by the Petitioner Bank [UBL-Landlord]. Under law it is significant to note that the burden of proof regarding payment of monthly rent for the period of January, 1996 upto January, 1997, was heavily lying upon the shoulder of Tenants [Respondents Nos.2 to 13 herein].
27. Mr. Abdul Haleem Siddiqui, learned counsel for UBL,-Landlord [Petitioner herein], in support of his contention regarding [i] Mode of Payment of Rent, [ii] Deposit of rent after filing of Ejectment Application [iii] 'Default' in payment of rent [iv] Practice of paying of accumulated rent [v] Tenant's responsibility in respect of non-payment of rent and [vi] burden of proof lying on the shoulder of Tenant and [vii] 'Production of Receipts' in respect of payment of rent is the liability of tenants, placed reliance on the cases of [i] Feroz Khan v. Syed Zoha [1996 CLC 949 Kar.] [ii] Kala Khan through Legal Heirs v. Anjuman Musalmanane Mashraqui Punjab, Karachi (Regd.) [1993 CLC 250 Kar.] [iii]. Muhammad Baqar Qureshi v. Mst. Razia Begum [1981 SCMR 18] [iv] Messrs Tar Muhammad Janoo and Co. v. Taher Ali and others [1981 SCMR 93] [v]. Muhammad Hanif Kukda v. Mrs. Shirin and another [1987 MLD 2141] [vi] Shezan Limited v. Abdul Ghaffar and others [1992 SCMR 2400] [vii] Muhammad Iftikhar Malik v. Mst. Surraiya Sultana [1985 MLD 1114] [viii] Dr. S.M. Sattar v. Moosa [1984 MLD 693] [ix] Alam Ali v. Muhammad Ibrahim [1984 MLD 237] [x] Rukhsana Begum v. TNT Eepress Worldwide Pakistan (Pvt.) Ltd. [2005 SCMR 1398] [xi] Mst. Hajiani Aisha and others v. Abdul Waheed [PLD 1989 Supreme Court 489] [xii] State Bank of Pakistan v. Jehangir Rustom Kakalia [1984 MLD 1220] [xiii] Sarwar Ali Khan v. Muhammad Ali [1984 MLD 753] [xiv] Amir Ali and others v. Messrs Burma Oil Mills Ltd. [1990 SCMR 1327] [xv] Muhammad Shafi Choudhary v. Saeed Ahmed [1996 SCMR 1784].
28. The relevant portions from some of the aforesaid cases on which reliance placed by learned counsel for the Petitioner are reproduced herein-below:
[i] 1996 CLC 949 KAR:-
"...In absence of reliable and satisfactory evidence in the circumstances of the present case, the testimony of the appellant/tenant cannot be said to be sufficient to prove the payment of 'rent having been paid till August, 1991 to the respondent/landlord. The appellant/tenant should not have paid rent without obtaining rent receipt or without any other documentary proof of payment of rent and in case rent receipt was not issued on the first occasion then the rent should have been sent by money order or should have deposited in the Court but this was not done therefore the appellant/tenant cannot escape the liability and consequences as laid down under the rent laws. ..." [Emphasis Supplied].
[ii] 1993 CLC 250 Kar:-
"...One receipt produced by the present appellants as Exh.O/1 in the rent case shows that the same was issued on 1-3-1977 for a sum of Rs. 165 being the rent for the period April, 1976 to February, 1977. The next receipt that has been produced is dated 11-2-1978 and is marked as Exh.O/3. This receipt is for a sum of Rs.240 and is the first receipt showing deposit of rent in Court. The very fact that the abovesaid Miscellaneous Rent Case No. 703/78 was filed in the year 1978 itself goes to show that during the period March, 1977 till this rent case was filed in 1978, no other efforts were made by the tenants to tender the rent. As provided in section 10 of the Sindh Rented Premises Ordinance, 1979, there are three modes of tendering the rent by the tenant. The first mode is that rent shall be paid directly to the landlord; the second mode is that in case the landlord refuses, it may be sent to him through postal money order and the third mode is that in such case, the same may be deposited with the Controller within whose jurisdiction the premises is situate...." [Emphasis Supplied].
[iii] 1981 SCMR 18:-
"..... we have no hesitation in reiterating that clause (i) of subsection (2) of section 13 of the Ordinance comprises of two parts, dealing with two different and distinct situations.
In the first part it stipulates a situation where a time is fixed in the agreement of tenancy for the payment of rent, and in such a case the phrase "rent due by him" means the rent which has become due according to the terms of the tenancy: and if it is not paid within 15 days after the expiry of the time fixed in the agreement, then the tenant becomes liable to ejectment. In other words the intention of the law clearly is to preserve the sanctity of the mutual contract as to the time agreed upon for the payment of rent, which becomes due on the date stipulated in the agreement. If the agreement stipulates the payment of advance rent by a certain date, then rent becomes due on that day, and the law allows a period of fifteen days for it payment after the expiry of the specified date, which is in the nature of a grace period for the benefit of tenants.
The second part of the clause deals with a situation where there is no agreement between the parties as to the date or time by which the rent is to be paid; and in such a case the law allows the tenant a period of sixty days from the period for which the rent is payable. We are unable to accept the contention that the second part of the clause also governs the first part, as such a proposition would amount to negating the first part of the clause, which is expressed in clear and unambiguous language...." [Emphasis Supplied].
[v] 1987 MLD 2141:-
. . .
"15. Having reached the above conclusion there is no escape from holding that notwithstanding the practice prevalent between the parties with regard to the payment of rent in lump sum after the expiry of the whole year, there was a default on the part of the appellant for making the payment of rent for the year 1980 even as per alleged practice prevalent between them. I am unable to persuade myself to agree with the learned counsel for the appellant that the case as set up by the appellant with regard to his paying rent without obtaining receipt was justified in the facts and circumstances of the case. No sane person would part with the amount of rent for the whole year without obtaining the receipt more particularly when he had been served with a legal notice claiming the rent of that year and also of the four months of succeeding year. I, therefore, hold that there was a deliberate default on his part to make the payment due and payable by him to the respondents."
. . .
[vi[ 1992 SCMR 2400:-
"18. ... it has been held that the practice of accepting accumulated rent or sending of monthly rent bills by a landlord in no way, absolves the tenant from discharging his statutory obligation under the relevant provisions of the rent laws i.e. to pay rent. There cannot be any cavil with the propositions propounded in the above cases. However, the point in controversy in the present case is as to whether the grace period of 15 days is to be allowed to the appellant for payment of monthly rent or 60 days. For the reasons already referred to hereinabove, I have held that the appellant is entitled to the grace period of 60 days. The above view, which I am inclined to take, in no way, is in conflict with the provision of clause (ii) of subsection (2) of section 15 of the Ordinance or with the above judgments relied upon by Mr. Rehmani. [Emphases Supplied]
It was candidly conceded by Mr. Rehmani that if the appellants were to be allowed 60 days grace period there would be no default.
[vii] 1985 MLD 1114:-
"7. It may be observed that the factum of remitting rent through cheque on 30-9-1976 is denied by the appellant/landlady. The respondent/tenant had not produced the undelivered registered cover. However, Mr. Shaikh Mir Muhammad has invited my attention to the photostat copy of registered cover and the photostat copy of the acknowledgment receipt unsigned. He has not been able to state as to why the original undelivered cover was not filed. Be that as it may, even if I were to accept the factum that the rent was remitted on 30-9- 1976 for the period commencing from 1st June, 1976 and that their same was refused, the default still remains. The rent for the month of June was to be paid in the first week of July, 1976. After excluding 60 days grace period, the rent for the month of June was to be paid by the first week of September, 1976. Admittedly the alleged cheque was sent on 30-9-1976 which was not received by the appellant/landlady. Even in the photostat copy of the cover there is no endorsement of the refusal of the same. Be that as it may, as observed above there will be still default for the month of June even if the respondent/tenant is allowed the benefit of the above cheque. In the case of Mst. Alima Ahmed v. Amir Ali reported in PLD 1984 SC 32, the Hon'ble Supreme Court of Pakistan has held that alleged practice that the landlord's attorney used to collect accumulated rent was no defence to a ground of default...." [Emphasis Supplied]
[viii] 1984 MLD 693:-
"...Nevertheless, the relationship of the landlord and the tenant continued between the parties even after the expiry of the aforesaid agreement. Thus, the parties came to be governed by law and the tenancy between them became statutory tenancy. When the ejectment application was filed, the West Pakistan Urban Rented Restriction Ordinance, 1959 held the field. As provided in section 13(2)(i) of the said Ordinance, the tenant was obliged to pay or tender rent due from him within fifteen days after the expiry of the time fixed in the agreement of tenancy and in absence of any such agreement within sixty days from the period for which rent is payable. Thus, the practice of paying the accumulated rent in lump sum relied upon by the tenant was not in consonance with the requirement of law and as such cannot be approved as legal and binding. In this connection, reliance has been placed on the latest Supreme Court authority reported as Mrs. Alima Ahmed Begum v. Ameer Ali PLD 1984 SC 32 wherein it was held:
"The alleged practice of the attorney - of the landlady of collecting accumulated rent is of no avail in explaining these delays and defaults..."
While making the above observations the Supreme Court followed the law laid down by it in the case of Dr. Syed Warisali Tirmizi v. Liaquat Begum 1980 SCMR 601." [Emphasis Supplied].
. . .
[xiii] 1984 MLD 753:-
. . .
3. The factum of non-payment of rent from November, 1976 till November, 1977 has almost gone unchallenged. The only question that has to be considered by me is whether the sending of money order in October, 1977 saves the appellant from the result of non-payment of rent from January, 1976 till the date of the money order and whether the deposit of rent in Miscellaneous rent proceedings in October, 1977 has again the same effect or not. It may be pertinent to note here that the appellant has not produced in Court the money order sent by him to the respondent. Nor has he stated in his written statement as to for how much amount the money order was sent whether it was for entire amount or rent due or not. In any case even if the appellant has sent entire rent from January, 1976 till September 1977 on 6-10-1977 it dot not save the appellant from the defaults that he has committed earlier. The rent of January, 1976 was to be raid within sixty days of 1-2-1976 and thereafter every month's rent was to be paid in that order and therefore, on 6-10-1977 when the money order was sent by the appellant the rent from January, 1976 till July, 1977 was clearly due making; it a period of 19 months. No tenant can have that privilege of waiting for 19 months before sending the rent by money order to the landlord.' The net result is that the appellant was clearly in arrears of 19 months rent on 6 -10-1977 and therefore, sending of rent by money order did not absolve him from the responsibility in respect of non-payment of rent of the earlier period. Hence the money order' sent in October, 1977 did not help the appellant at all and consequently the effort for deposit of rent made by the appellant on 24-10-1977 was similarly of no consequence because the rent had already been due for 19 months. Therefore, I am of the opinion that the Rent Controller was quite right in coming to the conclusion that the appellant had failed to pay the rent from January, 1976. I may also state that the recovery of rent by the respondent through D.W. proceedings filed on 1-11-1977 for the last 12 months conclusively establishes that the rent of 12 months had been due in November, 1977 which had not been paid by the appellant. It is common knowledge that in D.W. proceedings only one year's rent can be recovered and not more. The result is that this appeal is found to be without merit and is hereby dismissed. Mr. M. Zaki Ahmed does not press cross-objections in respect of finding of subletting not having been proved and, therefore, cross-objections are dismissed." [Emphasis Supplied].
. . .
[xiv] 1990 SCMR 1327:-
"...To prove such agreement was the burden of the tenant and such agreement was not to be lightly inferred from the mere fact that the landlord had received rent from his tenant in the past at irregular intervals. Similar view was taken in Messrs Tar Muhammad Janoo's case (supra) where it was observed:--
"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 collect it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazarda of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent...." [Emphasis Supplied].
[xv] 1996 SCMR 1784:-
"9. As regards the merits of the case, the finding of the learned Rent Controller that there is a default in payment of rent from August, 1987, to February, 1989, it appears that the last receipt issued by the appellant to the respondent is of July, 1987. Then there is a receipt issued by the office of the learned Rent Controller for depositing of the rent by the respondent for the month of February, 1989. There is no reliable evidence on record produced by the respondent to prove the factum of payment of rent for the above period. The Rent Controller had rightly concluded that there was default for the period from August, 1987, till filing of the rent case i.e. up to February, 1989. [Emphasis Supplied].
29. In contra, Syed Anayat Hussain Shah Bukhari, learned counsel for Tenants [Respondents Nos.2, 3, 4, 6, 7, 8, 12 and 13], while, defending the 'impugned judgment' dated 26.02.2013 [Annexure 'C' to the MoP] vehemently contended that the learned 2nd Additional Judge Karachi [East], has rightly passed the 'impugned Judgment' and, as such, there is no any 'mis-reading' and/or 'non-reading' of evidence, as alleged by UBL/Landlord [Petitioner herein] and as argued by Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner. Learned counsel for the Tenants [Respondents Nos.2, 3, 4, 6, 7, 8, 12 and 13] while, continuing his arguments submitted that the 'Petitioner'/ 'Landlord' did receive the monthly rent from the Respondents-Tenants 'uptill' the month of December 1995, against a 'valid receipt'.
30. According to Syed Anayat Hussain Shah Bukhari, learned counsel for Tenants [Respondents-Tenants], it was an established practice between Landlord [UBL] and Tenants that after receiving the monthly rent by the Landlord [UBL] from Tenants, UBL used to issue 'rent receipt[s]'. This Practice, as urged, remain continued uptill December, 1995. Per Syed Anayat Hussain Shah Bukhari, learned counsel for Respondents Nos.2, 3, 4, 6, 7, 8, 12 and 13 [Tenants], later on i.e. from the month of January 1996, onwards', the Petitioner/UBL herein, refused to issue any 'rent receipt' whereafter, the answering Respondents [Tenants] started the payment of rent i.e. from the month of January, 1996, onwards' by way of Pay Order[s] having been sent through 'courier service' of TCS. Learned counsel for Respondents [Tenants], in this regard made reference to the two [2] letters dated 21.05.1998 and 13.6.1998, of Tenants whereby, a request was made to the landlord [UBL], for issuance of 'rent receipts'. The 'landlord', inspite of receiving the said two [2] letters, however, as alleged, had failed and/or avoided to issue 'rent receipts' to the Respondents [Tenants].
31. Syed Anayat Hussain Shah Bukhari, learned counsel for Respondents [Tenants], next contended that UBL, upon receiving Pay Orders of monthly rent i.e. from January, 1996 to September, 1998 through TCS, however, returned Pay Order No.POB-088929 dated 24.9.98 of Rs.400/- only through which monthly rent for September and October 1998, was sent to UBL. The said Pay order, admittedly, was received back to the Tenants [Respondents herein], on 25.09.1998, 'with the remarks' that UBL-Petitioner herein has already filed an Ejectment Case against Tenants [Opponents] the same, as such, was 'not accepted' rather returned back to the Tenants.
32. Per Syed Anayat Hussain Shah Bukhari, the Tenants [Respondents-Tenants herein], later on sent the due monthly rent of September, 1998 to December, 1998, by way of 'Postal Money Order' to the Landlords [UBL], but it was also refused by the 'Landlords' [UBL] on 10.10.1998. The Tenant[s]/Opponent[s], thereafter, had thus no 'alternative option' except to deposit the monthly rent in Court. Accordingly, the Opponents [Tenants] started the deposit of 'monthly rent' from September, 1998 onwards' in MRC No.704 / 1998, filed in the court of Vth Senior Civil Judge, Karachi-East.
33. Syed Anayat Hussain Shah Bukhari, learned counsel for Respondents [Tenants] while advancing his arguments next submitted that in the light of above, there is 'no default' from 01.01.1996, as alleged, by the Landlords/UBL] as per Tenants' versions UBL, had received the monthly rent from the Tenants [Respondents herein], uptill the month of August, 1998, through Pay Orders and from the month of September, 1998 onwards' the Tenants [Respondents herein] did deposit the 'monthly rent' in court i.e. in MRC. No.704/98.
34. Syed Anayat Hussain Shah Bukhari, in support of his contentions regarding [i]. Past practice of rent deposit [ii]. Time limit for rent deposit [iii]. Payment of rent in lumpsum [iv]. Reaching at another conclusion is no valid ground for interference under the exercise of Constitutional Jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 placed reliance on the case laws i.e. [i]. Shahid Latif Avon and another v. Hafiz Mansoor and 4 others [1989 CLC 1128] [ii] Wazeeruddin v. Khalid Masood [1989 CLC 106] [iii] Moizur Rehman v. Mrs. Fakhra Javed [PLD 1991 Karachi 452] [iv] Mst. Fatima and 4 others v. Fazalur Rahman [1983 CLC 792] [v]. Shakeel Ahmed and another v. Muhammad Tariq Faroogh and others [2010 SCMR 1925]. The relevant portions from the aforesaid cases on which, learned counsel for the Respondents [Tenants] has placed reliance read as follows:-
[i] 1989 CLC 1128:
"...The burden in such case was on the landlord to prove through Rent Collector that either there was no such practice or the Rent Collector had never refused to receive the rent. He has placed reliance on the case of Jalilur Rehman v. Johar Trading Company (1982 CLC 219). I am of the view that in the instant case the appellants having deposited the rent in Court on account of refusal of the landlord to receive the same which fact has been supported by the landlord to receive the same which fact has been supported by the money-order coupon etc., no default in payment of rent has been committed. The findings of the Rent Controller on this issue are set aside. [Emphasis Supplied].
[ii]. 1989 CLC 106:-
"...By virtue of section 15, subsection (2), clause (ii) of Sindh Rented Premises Ordinance, the appellant could deposit rent for the month of March, 1981 by first of June, 1981 and in view of the fact that he started depositing rent in Court from 23rd May 1981, he could not be said to be a defaulter.
In view of the above discussion I am of the clear view that looking to the circumstances that the respondent was not the owner of the property in question, his right was disputed and a suit was filed by the actual owners, namely Mushtaque Ahmed and his brother, coupled with the fact that the appellant had immediately moved the Civil Court for permission .to deposit the rent and had on rejection of the said application, deposited the rent in Misc. Rent Case, the learned Controller committed error in holding that the appellant was a defaulter. The appeal is, therefore, allowed and the impugned order passed by the learned Rent Controller is hereby set aside, the ejectment application filed by the respondent is accordingly dismissed with no order as to costs." [Emphasis Supplied].
[iii] PLD 1991 KARACHI 452:-
"First I will take up the question relating to default in payment of rent. It is imperative that the Rent Controller should bear in mind that whereas the Sindh Rented Premises Ordinance, 1979 provides under section 10(3) two modes for payment of rent by the tenant, one by postal money order and the other by deposit with the Controller, in case the landlord refuses or avoids to accept the rent and whereas under subsection (4) thereof written acknowledgment, postal money order receipt, or receipt of the Controller may be produced and accepted in proof of the payment of rent, this does not imply exclusion of evidence, either ocular or documentary as to any other mode of payment e.g. Dasti (by hand), by cheque etc. The learned Controller could not have brushed aside the entire' evidence adduced by the appellant merely on the ground that the postal money orders do not bear the endorsement of "refused" on them. No doubt the burden of proof as to the payment of rent is upon the appellant, once it is shown that he was duly served with a notice under section 18 of the Sindh Rented Premises Ordinance. This is also the case of the respondent that despite notice dated 29-5-1986 served by her on the appellant, he committed default in payment of rent. Now it is an admitted position that much before this notice was served upon him, on 6-7-1986 the appellant had deposited rent of a sum of Rs.1,067 upto April, 19th in Misc. Rent Case No.289 in the Court of the Vth Rent Controller, Karachi in the name of the previous landlady. Even if the money orders dated 21-5-1986 and 4-6-1986, sent by the appellant may be disregarded, there was default in payment of rent for the month of May only within the meaning of section 15 (2) (ii) read with section 18 of the Ordinance and in the circumstances of the case, the learned Controller ought to have exercised his discretion in favour of the respondent. Apart from this, the learned Controller completely overlooked the statement of the respondent to the effect that she did not know if the appellant had committed default in payment of rent. Hence the finding of the learned Rent Controller on this ground is set aside." [Emphasis Supplied].
[iv] 1983 CLC 792:-
"Now, taking up the case of Abdul Rashid v. Saleh Muhammad, it was observed that the parties cannot contract themselves out of the provisions of law on the subject i. e. the West Pakistan Urban Rent Restriction Ordinance, 1959 nor can any party plead a practice which is Contrary to the law and that the landlord having accepted delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the any month. This case is also distinguishable from tenant by the 15th of every the present case for the reasons already stated above." [Emphasis Supplied].
[v[ 2010 SCMR 1925:-
"8. We have carefully perused the impugned judgment passed by the learned Single Judge in chambers of High Court of Sindh and seen that not only the said judgment is outcome of misreading and non-reading of evidence, but also the learned single Judge in chambers failed to appreciate, that jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979." [Emphasis Supplied].
35. While conducting his arguments Syed Anayat Hussain Shah Bukhari, learned counsel for Tenants [Respondents Nos.2, 3, 4, 6, 7, 8, 12 and 13 herein] vehemently contended/prayed that the instant Constitutional Petition bearing C.P. No. S-766 of 2013 [Messrs United Bank Ltd v. Mohammad Siddiq Bawa Gadit since, deceased through his legal heirs i.e. Respondents Nos.2 to 13 and another], filed by the 'Landlords' [UBL], is not only erroneous but also devoid of any merits, the same as such, is liable to be dismissed, otherwise, the Respondents [Tenants], in possession' of the 'subject premises' shall be seriously prejudiced.
36. Heard and perused the record.
37. Before proceeding further, at this juncture, I would like to refer to the 'Tentative Order dated 29.01.2004, passed by the court of learned VIth Rent Controller Karachi-East, on the Application of 'UBL'-'Landlords', filed under section 16 [1] of Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], whereby, the 'tenants' Respondents Nos.2 to 13 herein, were directed to 'deposit the arrears' of rent for the month of January, 1996 till December, 2003 for about 96 months @ Rs.200/- [Rupees Two hundred only], per month and future monthly rent from the month of January 2004 onwards' on or before 10th of each calendar month. For ready reference the 'Material Part' of order dated 29.01.2004, reads as follows:-
. . .
Under these circumstances, I hereby direct the opponents to deposit the arrears of rent from the month of January 1996 till December 2003 for 96 months at the rate of Rs.200/- per month amounting to Rs.19,200/- on or before 28.02.2004, and the opponents are entitled to adjust the rent to the tune of Rs.15,200/- which was deposited in the said MRC No.704/1998 under ledger No.79/1998. Opponents/tenant, is also further directed to deposit the future monthly rent from the month of January 2004 and onwards on or before 10th of each calendar months. The rent for the month of January 2004 is to be deposited on or before 10th of February 2004 and onwards accordingly till the final disposal of the instant eviction application. In case a holiday falls on 10th of the month the rent be deposited on the following day or next opening day. However, the applicant is also directed not to withdraw the rent from the month of January 1996 till August 1998, for 32-months amounting to Rs.6,400/- till the final disposal of the instant eviction Application. Applicant is also entitled to withdraw the rent from the month of September 1998 and onwards except the disputed period from the month of January 1996 till August 1998 for 32-months. Order accordingly. [Emphasis Supplied].
38. The aforesaid order dated 29.01.2004, it is significant to note, upon allowing the Ejectment Application on 'merits', vide Order dated 27.08.2010, however, has not been called in question in F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit and his widow Mrs. Amina Bai since deceased through their legal heirs namely Hanif Gadit and others v. UBL], filed on 23.09.2010 against the Ejectment Order dated 27.08.2010, by the Respondents herein [Tenants]. The said order dated 29.01.2004, as such, has 'attained the finality' in respect of deposit of arrears of rent and 'default' committed' by the Tenants [Respondents Nos.2 to 13 herein].
39. Not only the above, one of the Tenants [Respondent No.2 herein], in his 'cross-examination' has also admitted the 'default' in 'monthly rent' in the following manner:-
. . .
"It is correct that UBL used to issue the acknowledgment of receipts, after receiving the rent. I have also gone through the annexures of Written Statement. I have filed annexure O/2 with my Written Statement. It is correct that receipt dated 19.11.1995 was issued last receipt issued by the bank of receiving the rent. I have paid the rent for the period from 1.1.1995 to 1.12.1995. I have paid the rent in the month of 1.11.1995. It is correct that after, the issued receipt Annexure O/2 of the Written Statement. It is correct that the receipt was issued in the name of my deceased father Muhammad Siddiq Bawa Gadit showing Flat No.401, UBL Building, Chowrangi Mahal Gurumandir, Karachi. It is correct that I have not filed rent receipt issued by UBL on 19.11.1995 as Annexure O/2 of my Written Statement with the Affidavit-in-Evidence. It is correct that I have mentioned January, 1996 the Applicant [Bank] refused to issue the rent receipt after acknowledging the rent." [Emphasis Supplied].
40. The 'admission' of deponent [Respondent No.2 herein], to the above effect, however, has not been considered by the learned Appellate Court [Respondent No.14 herein]. Thus, as urged, by Abdul Haleem Siddiqui, the 'impugned judgment' dated 26.02.2013 of the Appellate Court [Annexure 'C' to the MoP], is not only erroneous but also suffering from 'non-reading'/'mis-reading' of evidence/materials available on record. From the above, it is quite evident that [as admitted by Respondent No.2 in his 'cross-examination']. UBL while declining to issue 'rent receipt' from January, 1996 onwards' did acknowledge the 'receipt of rent' only for a period of 1.1.1995 to 01.12.1995. Further, the 'last rent receipt' [Annexure 'O' to the Tenants 'Written Statement/Respondent No.2's affidavit-in-evidence], admittedly was not filed/produced in evidence by the Deponent [Tenant No.2]. Besides, the above' Respondent No.2'/'Opponent' in his 'cross-examination' has made admission to the following effect.
. . .
"It is correct that Exhibits 3, 47, 11, 14, 17, 19, 22, 26, 31, 32, 35, 36, 37, 40, 41, 44, 45, 49 and 50 the bank stamp of acknowledgement is not appearing on the said Exhibits. It is correct that stamp embossed on Exhibit O/8, O/19 and O/23 are of the Engineering Department of UBL. It is correct that I have sent the Pay Order through TCS to UBL Estate and Property Department". [Emphasis Supplied].
41. The learned Appellate Court i.e. 'Respondent No.14 herein', however, has ignored and/or not considered all the 'above admissions' made by Respondents-Tenants' witness namely Hanif Gadit son of Muhammad Siddiq Bawa Gadit [late]. The witness of UBL ['Landlord'-Petitioner herein], in his 'cross-examination', it is significant to note, has specifically and vehemently denied the receiving of any pay order 'except', Pay Order No.POB-088929 dated 24.09.1998. The said Pay Order, though was received but it was returned through the Petitioner's letter dated 25.09.1998 [Exh.'O/53']. For ready reference the aforesaid letter of UBL [Exh.'O/53'] is reproduced herein below:-
UBL(H.O.)/ENGG/E&P/98/
DATED: 25-09-1998
Ex.O/53
Mr. Muhammad Siddique Bawa Flat No.401, UBL Building Chowrangi Mahal [Gurumandir] Karachi.
Sub: RENT PREMISES NO. _______________________
Since the Bank has filed ejectment case against you, as such we cannot accept the rent till the matter is decided by the court. [Emphasis Supplied].
Therefore we are hereby returning following cheques/pay orders.
S.No. Particulars Amount.
1. Pay order No.POB-088929 Rs.400/-
Dated 24.9.98
Sd/-
IMTIAZ SHAIKH
HEAD OF ENGG. DEPTT.
42. Manifestly, the Bank's witness in his 'cross-examination' has specifically denied the receiving of the alleged 'pay orders', as such, the 'burden of proof is/was on Respondents' shoulder not only to prove the alleged pay orders A/c of deceased Tenant namely Muhammad Siddiq Bawa but also 'encashment' thereof, on the account of the deceased Tenant, who, as per Respondents' own 'disclosure' was passed away on 24.07.1982. Apart from the above, the learned Appellate Court [Respondent No.14 herein], has also failed to take into consideration the 'admissions' of Respondents' witness namely Aziz Ahmed Shaikh son of Karam Ali [PW-2], recorded on 04.11.2006 and 24.11.2006. The 'relevant portions' therefrom, are reproduced at [i], [ii] and [iii] respectively, herein-below:-
[i] It is correct that in the terms and conditions it is mentioned that T.C.S. would not carry or deliver or take the consignment, which is come into definition of Negotiable Instrument. It is correct that in Ex.O/4, 8, 15, 19, 23, 27, 31, 36, and 45 it has not been mentioned in the consignment the Pay Orders are posted to the U.B.L. [Emphasis Supplied].
[ii] It is correct that there is no stamp upon the T.C.S. receipts/Airways bill Ex.O/3, 4, 7, 8, 11, 14,17, 18, 19, 22, 23, 26, 27, 30, 31, 33, 35, 36, 40, 41, 44, 45, 49 and O/50 of the receipts/dispatched department of U.B.L. It is correct that T.C.S. cannot accept or delivered Cash, open Cheque equivalent cash for delivery of the same. Vol. Says: that T.C.S. can accept the Pay Order. It is correct that it has not been mentioned in T.C.S. slip/Airways Bill Ex.O/3, 4, 7, 8, 11, 14,17, 18, 19, 22, 23, 26, 27, 30, 31, 35, 36, 40, 41, 44, 45, 49 and O/50 that the pay orders were delivered to the addressee. It is also correct that there is no insurance pertaining to the pay order if any sent to the consignee. It is correct that pay order come into the ambit of documents and the T.C.S. does not insure the documents. I cannot say that whether the pay order has been sent in the T.C.S. slip/Airways bills as mentioned in letter Ex.O/54, which relates to the booking department of T.C.S. All the T.C.S. slips/Airways Bills was booked from the same station and the name of the person is appearing as Zafar. [Emphasis Supplied].
[iii] I have no knowledge that the T.C.S. department will observe the Pakistan Post Office Act 1898. It is correct that T.C.S. slip Ex.O/26, 27, 30, 31, 36, 40, 41, 44, 45, 49 and 0/50, the address of the consignee as mentioned Estate and Property Department, Establishment Division, 2nd Floor, State Life Building No. 1, I.I. Chundrigar Road, Karachi, not Engineering Division, U.B.L. I.I. Chundrigar Road, Karachi. It is correct that receiving stamp shows Engineering Division, U.B.L I.I. Chundrigar Road, Karachi. It is correct that the distance between State Life Building No.1 and Al- Rehman Building near Jang Press Office is about 400 yards. It is correct that the delivery confirmation slip Ex.O/32, 37, 46 and O/51 is pertaining to the T.C.S. slip/Airways bills mentioned in my letter dated 4.11.1999. it is correct that I have issued consignment slip Ex.O/32/37, 46 and O/51. Since the T.C.S. is big department and it has been issued by the Computer Division and I have no knowledge. It is correct that T.C.S. issued the confirmation slips. The confirmation slips issued a different department. It is correct that the confirmation department confirmed the delivery of the consignment. It is incorrect to suggest that I have issued letter and the slips/Airways bills mentioned therein to support the opponent and the same has been issued with the collusion of opponent. It is incorrect to suggest that I have deposed falsely." [Emphasis Supplied].
43. At this point of time, I would like to also refer to the 'cross-examination' of Respondent No.2-Tenant, which was recorded on 18.05.2005 and reproduce therefrom, some 'important portions' at [a], [b] and [c] respectively, herein below:
. . .
[a]. "In this Flat bearing No.401, UBL Building, Guro Karachi, I, my mother Ameena Bai and my elder brothers Hanif Gadit and Farooq Gadit are residing therein. It is correct that the said Flat was rented out to my father Muhammad Siddique Baba Gadit. Vol. Says: that my father has taken the premises in question after payment of Pugri. It is correct that the rent of the premises was/is Rs.200/- per month. It is correct that my brother Abdul Razzak Baha Gadit was working in the UBL. State and Property Department as Officer Grade-I. Vol. Says: that my brother was working in the said department prior to filing of the above case. I do not know what period he was remained in the department as not related to my job. My father Muhammad Siddique Bawa Gadit died on 24-07-1982. After the death of my father his legal heirs namely Muhammad Iqbal, Muhammad Ameen Gadit, Hanif Gadit, Farooq Gadit and my mother Ameena Gadit. It is correct that none of the legal heirs mentioned hereinabove have not intimated the death of Siddique Bawa Gadit in writing to the applicant/UBL." [Emphasis Supplied].
[b] "It is correct that receipt dated 19-11-1995 was issue last receipt issued by the Bank after receiving the rent. I have paid the rent for the period from January 1995 to December 1995. I have paid the rent in the month of November 1995. It is correct that thereafter Bank issued the receipt annexure O/2 of the written statement." [Emphasis Supplied].
[c] "It is not a practice of the T.C.S to mention the pay order on the T.C.S receipts when sent pay order to the concerned department of person. It is correct that acknowledge of receiving is appearing on the Ex.O/19 and O/23 of the applicant/Bank. It is correct that I have not submitted the original of Ex.O/19 and O/23 as TCS not used to issue the original of the receipts and TCS never confirmation on the photocopy of the courier slip, TCS Head Office has issued me Ex.O/8, 19, 21 and 23. It is correct that I have submitted Ex.O/33 pertaining to the confirmation of the delivery, I sent one pay order. It is correct to suggest that we have not paid the rent to the applicant from January 1996 till date. It is correct that I have not filed any power of attorney authorizing other legal heirs who are living in the rented premises and proceeding the matter on their behalf. It is correct that Altaf is appearing at Ex.O/50. It is correct that Ex.O/3, 47, 11, 14, 18, 19, 22, 26, 30, 31, 32, 35, 36, 37, 40, 41, 44, 45, 49 and 50, the bank stamp of acknowledgment is not appearing on the aforesaid exhibits. It is correct that stamp imposed on Ex.O/8 and Ex.O/19 and O/23 are of the engineering department of UBL. It is correct that I have sent pay order though TCS to UBL State and Property Department. I sent the rent to the department, which is situated at Al-Rehman Building, I.I. Chundrigar Road, IInd Floor, Karachi and State Life Building I.I. Chundrigar Road, Karachi. From 1999 till retirement of my brother he was in the State and Property Department. It is incorrect to suggest that I have not paid the rent to the applicant/bank." [Emphasis Supplied].
. . .
44. Needless to say, in terms of section 10 of SRPO, 1979, only three [3] modes for payment of rent to a 'landlord' [UBL], have been provided i.e [i] Rent be paid to the landlord [ii] Rent be sent to the landlord, in case of refusal, through postal money order and [iii] Rent be deposited with Rent Controller within whose jurisdiction 'premises' is situated. In the case in hand, admittedly, UBL [landlord] used to issue rent receipt[s] but only 'upon payment' of the rent in respect of the 'subject premises'. As per rent receipt ['O/2' to the WS], rent of 'subject premises' was paid to UBL [Landlord], only up till December 1995. From the month of January, 1996 onwards, UBL, as per its' stance, has neither received the monthly or otherwise, issued any rent receipt. The stance of Respondents [Tenants] 'in contra' is that from the month of January 1996, monthly rent was paid upto September, 1998, through pay order[s] sent through TCS. This 'stance'/'plea' of the Tenants/ Respondents Nos.2 to 13, however, has been specifically and vehemently denied. Even otherwise, payment of the rent through pay order[s], as alleged, by the 'Tenants' [Respondents Nos.2 to 13], is not a 'permissible'/'recognized' mode, as provided, under section 10 of Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1973].
45. The 'stance' of the Tenants [Respondents Nos.2 to 13] as taken by the Tenants viz-a-viz the alleged payment of monthly rent through Pay order[s] on the A/c of a dead Tenant namely Muhammad Siddiq Bawa Gadit [late], in the light of materials/evidence available on record, cannot be believed. Even, the Respondents [Tenants], have badly failed to prove the alleged payment of rent w.e.f. January, 1996 onwards upto September, 1998. Per Tenants' own version, the 'last rent receipt', for the payment of rent was issued on 19.11.1995. The 'Landlord' [UBL] thereafter, refused to issue any rent receipt. In this 'scenario' rightly, then a question arises why the 'Tenants' [Respondents Nos.2 to 13], upon such refusal did not send the 'due rent' onwards' through money order[s] or the same was otherwise, deposited in the court. Not complying with the 'statutory provisions' of section 10 of Sindh Rented Premises Ordinance, 1979, the 'Tenants' have thus rendered themselves, liable to face the consequences, as laid down in the rent laws. The 'stance'/'defence', as taken by the Tenants viz-a-viz payment of rent through alleged Pay Orders and that too without obtaining any rent receipt[s], if allowed to succeed then, indeed, it would create a new situation for tenant to perpetuate their wrong. A 'tenant' then in every case can conveniently take such plea regarding payment of rent to the 'landlord' without obtaining rent receipt. The payment of rent through pay order[s], even otherwise, is a mode contrary to the provisions of section 10 of Sindh Rented Premises Ordinance, 1979. The Tenants [Respondents Nos.2 to 13 herein], however, do not escape or be permitted to escape their liability in terms of section 10 of Sindh Rented Premises Ordinance, 1979.
46. With reference to the above and to see the spirit of the provisions of section 10 of SRPO, 1979, for convenient purpose, I would like to reproduce Section 10 of Sindh Rented Premises Ordinance, 1979 hereinbelow:-
"10. Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, he paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, he deposited with the Controller within whose jurisdiction the premises is situated.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent:
Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance." [Emphasis Supplied].
47. Mere words of the Tenants [Respondents Nos.2 to 13 herein] that rent was paid to the 'Landlord' [UBL] from January, 1996 and onwards' through pay orders but without obtaining 'rent receipt[s]', in my view, besides being afterthought cannot be believed much-less in absence of 'rent receipt[s]. In such like situation, and as the case in hand is, the 'presumption' would be that the [Tenants] has/have not paid the monthly rent. Reference in this regard can be made to the case of Jabbar Ahmed v. Abida Ismail [PLD 1987 Karachi 280] wherein, it was observed as follows:-
"That if the tenant does not protest on the refusal of landlord to issue receipts and keeps quiet on account of confidence that he reposes in the landlord then he has to thank himself for his conduct. The presumption in such a case would be that the tenant had not paid rent."
48. The contention of Syed Anayat Hussain Shah Bukhari, learned counsel for 'Respondents Nos.2 to 13 herein [Tenants] regarding payment of rent by the tenants periodically and in lump sum at irregular intervals, even if, it is accepted by a 'landlord' [which, however, is not the case in hand], the same under law does not absolve a tenant from payment of rent every month. Even, in such like situation, the question of 'estoppel', 'waiver' and 'acquiesces' cannot be accepted particularly, when there is no proofs on record. Reference in this regard can be made to the case of Messrs Tar Muhammad Janoo and Co. v. Tahir Ali and others [1981 SCMR 93], wherein, it was observed as follows:-
"7. We are not impressed by this contention. When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement, a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. 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 a 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. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits." [Emphasis Supplied].
49. Likewise, in the case of Shaikh Muhammad Muneer v. Muhammad Ilyas [1986 CLC 93], it has been observed that any kind of practice, even if it was evolved with 'mutual consent' of the parties cannot override the provisions of law. The 'relevant portion' therefrom reads as follows:-
"....No kind of practice even if evolved with mutual consent of the parties can override the relevant provision of the law. In other words if the parties follow any practice in regard to payment of rent the tenant cannot be permitted to set up such practice as defence in order to show that there is no default. As is evident from abovementioned Supreme Court cases, it has been repeatedly held that if the landlord accepts the rent at irregular intervals, he thereby displays his grace and decency which under no circumstances can be misunderstood as a licence to the tenant to continue making defaults, or use such concessions against the landlord himself." [Emphasis Supplied].
50. In the present case, admittedly the 'last rent receipt' was issued by UBL [Landlord] to the Respondents [Tenants] for the rent paid only up-till December, 1995. From January, 1996, till deposit of monthly rent i.e. in the month of September, 1998 and onwards' in MRC No. 708/1998, filed in the Court of Vth Senior Civil Judge-East, the 'Tenants' [Respondents Nos.2 to 13 herein] have badly failed to place on record any 'rent receipt' [s] for the period i.e. from January 1996 to September, 1998, wherefrom, it is established that the Tenants [Respondents Nos.2 to 13 herein] had paid the rent to the 'landlord' [UBL]. Per Respondents'/Tenants' version, monthly rent for the month of September, 1998 onwards' was deposited in MRC No. 708/1998. This being the position, from January, 1996 till deposit of rent for the month of September, 1998, on the record, there is no valid proof/reliable evidence wherefrom, the 'versions' of Tenants [Respondents Nos.2 to 13], can be established as true. In view of this position, as well, the learned Rent Controller was right and justified in holding/concluding that there is 'willful default' on the part of the Respondents Nos.2 to 13 [Tenants], in the case in hand.
51. It is worth to note, that Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], not only regulates the relations between the 'Landlords' and 'Tenants' but also protects their interest, in respect of rented premises. The mode of payment of rent as provided under section 10 of Sindh Rented Premises Ordinance, 1979 is without any 'ambiguity'. Further, the provisions of Sindh Rented Premises Ordinance, 1979, need to be interpreted 'in juxtaposition' of its' preamble which supplies a key to the interpretation of a statute for the purpose of achieving the object of the statute. Any payment of rent through alleged 'pay orders', as being claimed by the Tenants (Respondents Nos.2 to 13], in the case in hand, in terms of section 10 of Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979] cannot be 'recognized'/'permitted' otherwise, it would be against the modes specified/provided under the provisions of Section 10 of Sindh Rented Premises Ordinance, 1979.
52. On the above aspect of the matter, reference can be made to the case of L. Hussain v. Muhammad Nawaz and 4 others [PLD 1992 Karachi 307], wherein, it was observed as follows;-
"17. It may be added that in the earlier Ordinance the legislature had used two different words ' namely, 'may' and 'shall' while empowering the Rent Controller to direct eviction of tenants. A discretion vested with the Rent Controller while directing eviction under section 13(2), but no such discretion vested with the Rent Controller under section 13(3) because the words used are "the Controller shall make an order". No such distinction was however, made in section 15 of the Sindh Rented Premises, Ordinance, 1979, in which the word 'shall' has been used. Therefore, at first sight the contention raised by Mr. Mirza Waqar Hussain, learned counsel for respondents Nos.1 to A appears to be attractive. It is, however, a settled principle of law that words "may" and "shall" are interchangeable. In the case of Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 other, reported in PLD 1972 SC 326, this question was considered by the Supreme Court and was answered in the following words:-
"It is now well settled that the words "may' and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance."
18. The Sindh Rented Premises Ordinance, 1979, as its preamble shows, was promulgated to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas. The preamble supplies a key to the interpretation of a statute and may be consulted to solve an ambiguity. The Sindh Rented Premises Ordinance, 1979, protects the interests of both the landlords and tenants it cannot be interpreted in a manner so as to defeat its very object. The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To concede that the Rent Controller will have no powers to condone a default even after it is found to be beyond the control of the tenant or it has H been created by the deceitful means of the landlord, would tantamount to denial of justice, which will be against the spirit and purpose of the Sindh Rented Premises Ordinance, 1979. With all humility, I am of the view that nobody can be penalised for the fault of the draftsman. In order to ensure the essential principles of fairness the exercise of discretion is always permitted except where such exercise is barred by law." [Emphasis Supplied].
53. The Tenants [Respondents Nos.2 to 13 herein], upon refusal of rent by Landlord [UBL] in the month of November, 1996, were under legal obligation' in terms of section 10 of Sindh Rented Premises Ordinance, 1979 to either send the rent from January, 1996 to December, 1996, through 'money orders' or otherwise, deposit the same in court. The 'Tenants' [Respondents Nos.2 to 13 herein], however, in the case in hand, are alleging the payment of rent through 'pay order[s]' but evidently, in this regard, no 'valid proof' of payment of rent through alleged pay order[s], has been placed on record. In terms of section 10 of Sindh Rented Premises Ordinance, 1979. Firstly rent needs to be paid to the Landlord; Secondly, it to be sent through 'postal money orders' in case of refusal and Thirdly, the same be deposited with the Rent Controller within whose jurisdiction the 'premises' is situated. In the present case, despite refusal' on the part of 'Landlord' [UBL] in November, 1996, the Tenants [Respondents Nos.2 to 13 herein], later on, as stated, started the deposit of rent in MRC No.708 of 1998, from which the willful 'default' on the part of Tenants [Respondents Nos.2 to 13 herein], is quite clear.
54. The case laws cited by Mr. Abdul Haleem Siddiqui, learned counsel for the Petitioner ['Landlord'] besides, being relevant under the facts and circumstances of the case in hand fully support UBL. Petitioner's case. As far as, the case laws, cited by Syed Anayat Hussain Shah Bukhari, learned counsel for Tenants [Respondents Nos.2 to 13 herein], are concerned, the same besides, being distinguishable do not support the case of 'Tenants' [Respondents Nos.2 to 13 herein].
55. In view of the above, the finding of the learned Appellate Court [Respondent No.14 herein], in F.R.A. No.315 of 2010 [Mohammad Siddiq Bawa Gadit since deceased through his LRs. Hanif Gadit and 12 others v. UBL], is not only erroneous but has been passed without properly evaluating/appreciating the 'materials'/'evidence', available on record in its' true perspective. Besides, the same is also suffering from 'mis-reading' and 'non-reading' of evidence. Resultantly, the instant Constitutional Petition bearing No. S-766 of 2013 [Messrs United Bank Ltd. v. Muhammad Siddiq Bawa Gadit since deceased through his legal heirs i.e. Respondents Nos.2 to 13 and another] is allowed and the 'impugned Judgment' dated 26.02.2013, [Annexure 'C' to the MoP'], passed by the learned Appellate Court [Respondent No.14 herein], is hereby, set aside and consequently, the Judgment dated 27.8.2010, passed by learned IXth Rent Controller, Karachi-East, in Rent Case No.33 of 1997 [UBL v. Mohammad Siddiq Bawa Gadit since deceased through his LRs. Mrs. Amina Bai Gadit widow of Muhammad Saddiq Bawa Gadit and others], whereby, the Ejectment Application was allowed stands restored.
The petition is allowed accordingly, however, with no order as to costs.
ZC/U-3/Sindh Petition allowed.