MAKHAN BANO vs Haji ABDUL GHANI

1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the landlord to examine whether a tenant who persisted throughout the proceedings before the Rent Controller and the appellate forum in claiming that the person from whom he obtained the premises on rent was not the landlord, loses his right, of defence to continue in the premises as tenant, and further whether the principles regarding the forfeiture of the tenancy on account of his own conduct would not operate against him notwithstanding the observance b him of other conditions, for instance payment of rent etc. ' The facts of the case are that the respondent-tenant was inducted into the premises in dispute, a shop bearing No, A 2711/1 (Ground Floor) Market Road, Hyderabad in 1971 under a written tenancy agreement. It was renewed last on 11-8-1973 for 11 months starting from 1-7-1973. The rent was fixed at Rs, 500 per month. A security in the sum of Rs, 25,000 had been realized at the time of the first agreement which was to remain as security with landlord till vacant possession of the premises was handed over to him. The rent fixed was payable in advance on the first of each month. The respondent/tenant served on the appellant a registered notice on 28th December, 1973, and asked for his title deed. The operative and concluding portion of the notice was as follows :- "That you have received Rs, 25,000 as earnest money plus rent from September, 1971 upto October, 1973 at the rate of Rs, 500 per month without holding any title document in respect of the premises let out to him resulting that my client is in heavy loss of such a huge amount and further complication has been created by you by not accepting the rent in respect of the said premises which proves that you are not the owner of the premises in question."

2. ' A reply was sent on behalf of the appellant on 19-1-1974 stating - "3. It is way funny that on one hand the notice under reply says that our client should refund the rent and should also refund the deposit as she is not owner of the shop in question' viz. A/3-2711/1, Market Road, Hyderabad which was rented out by our client to your client and in the same breath your client expresses his desire to clear the arrears of rent, but the responsibility is being thrown on our client that he has not accepted this rent. Our client is unable to reconcile these contradictions except on the hypothesis of falsity.

18. Your client has also tried to justify default on the ground that our client refused to give her title deed to him for production in Income-tax Department. Really speaking the allegations are not less than a fairy tale. It is also worth consideration that the title deeds of our client have nothing to do with the income-tax of your client. If at all by stretch of imagination the rent deed should be required by the Income-tax Department, the copy of the same is already with your client."

3. It was further stated - "Anyhow even now your client is welcome to send arrears of rent from October 1973 up-to-date by money order. Really your client does not want to clear the arrears of rent."

4. ' The respondent tenant thereafter on the 26th of January, 1974 instituted an application which was expressed to be under section 13 of the ' West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) praying the Controller for the following reliefs - "(a) To pass an order for the deposit of the rent in respect of premises in question for the months of November and December 1973 after determination of the issue of relationship of the landlord and tenant between the parties.

5. (b)Cost of the application be borne by the opponent.

(c) Any further relief which this Honourable Court deems fit and proper."

6. ' The appellant contested this application saying that it was not competent, the allegations were incorrect and the applicant was not paying the rent regularly as agreed to between the parties and bad paid rent only upto October, 1973 and thereafter had neither tendered nor paid rent to her.

7. ' Issues were framed and the application was set down for trial.

8. ' On 15th July the appellant instituted an application under section 13 of the Ordinance alleging default in the payment of rent from November, 1973 and seeking respondent's eviction from the premises on that ground. The respondent in reply to this application denied the jurisdiction of the Controller, the relationship of the landlord and the tenant between the parties and the default in the payment of rent. The two applications were consolidated and were taken up for trial together.

9. On 4-2-1975 the respondent admitted the relationship of landlord and tenant whereupon the same day the Rent Controller passed the following order :- "The parties in case present. Tenancy is admitted. The rent of Rs, 5,Q00 for first instalment is received. (For 7th is filed). The amount is due for November, 1973 till January, 1975. The total being Rs, 7,500. The opponent is directed to pay the amount in two instalments to be payable by 14-3- 1975 (14th March, 1975 and 14-4-1975 (14th April 1975). The opponent is also directed to pay the current rent by 15th of every month till the disposal of appeal."

10. ' On the conclusion of the trial the Rent Controller held that the admission of the tenant himself, proved his wilful default for nine months from Ist of November 1973, till the filing of the ejectment application. The landlord's application was, therefore, allowed and that of the tenant dismissed with a direction to the tenant to vacate the premises within one month.

11. ' An appeal was taken to the District Judge by the tenant who affirmed the findings and held that on 26-1-1974 when the application was filed by the tenant he had already defaulted in payment of rent for three months and "by no stretch of imagination" he could be absolved from consequences of the default. His appeal against ejectment was dismissed.

12. ' A second appeal was then preferred in the High Court and the learned Judge after quoting extensively from the decision of this Court in Muhammad Yousaf v. Abdullah held as follows :-1 "I am in respectful agreement with the above observations which is on all fours with the present case. The admitted position is that eviction application was filed on 15-7-1974 whereas the tenancy agreement under which Rs, 25,000 had been deposited expired on 31-5-1974. In the light of the observation of the Supreme Court as the agreement had expired the respondent was in debt to the appellant and the appellant was in technical default in payment of rent on the date of the eviction application filed against him and, therefore, it is a fit case for exercise of discretion in favour of the appellant. I, therefore set aside the eviction order passed by both the Courts below and allow the appellant's appeal with no order as to costs."

13. ' The learned counsel for the appellant pointed out that the law laid down in Muhammad Yousaf's case was not really attracted to the present case because the ejectment application had been filed in respect of defaults which had taken place during the currency of the agreement and not long after its expiry as was the case in Muhammad Yousaf which was relied upon as a precedent and held to apply "on all fours". This distinguishing feature should make all the difference to the result because according to the decision in Muhammad Yousaf's case itself if the default was relateable to the period when the contract held the field then after evaluating the default in terms of the statutory provisions it was for the tenant to show plausible excuse. In the present case not only a clear default both in terms of the contract and in terms of the statutory provisions was proved, the tenant by his conduct also lost any claim to equitable exercise of discretion in his favour. After admitting the appellant as the landlord in repeated agreements since 1971, he challenged her title and. Wanted to be personally satisfied about it. It was for this reason alone that he withheld the payment of rent due, that he approached the Controller for determination of the question of title and deferred the payment of rent till then. He conceded in favour of the landlord when it came to framing of the Issues on 4-2-1975, that is, after a period of one year of his instituting the application and after 15 months of commission of the default in the payment of rent.

14. Such a conduct could not be blessed and condoned in the discretionary field, particularly so when default had to be given effect to in terms of the statutory provisions regulating the relationship of landlord and tenant.

15. ' The learned counsel for the respondent, on the other hand, pointed out that the deposit of Rs, 25,000 as a security was clearly in violation of section 7 of the Ordinance and on the date on which the ejectment application was filed by the appellant, that is, 15-7-1974, the agreement had come to an end by efflux of time and the appellant had become the debtor of, the respondent and was obliged to adjust whatever was due from the security kept by him. In such a background the authorities seized of the question of default could legitimately exercise discretion in favour" of the tenant.

16. ' As the judgment of the High Court which is under challenged relies wholly on the decision of this Court in Muhammad Yousaf's case it is necessary to examine whether the facts and law enunciated therein were at all "on all fours" as noted by the learned Judge. In that case a written agreement was executed on 10th of January, 1964 creating a lease for 6 months with a clause for its automatic renewal on the same terms and conditions for another period of six months unless it was terminated by either party. The rent was Rs, 200 and a sum of Rs, 1,000 was deposited as security which was liable to be confiscated by the lessor landlord in case the lessee did not pay rent for consecutive three months and/or did not give vacant possession to the lessor/landlord at the termination of the tenancy. Even the automatic renewal came to an end on the 10th of January, 1965 and it was not renewed thereafter. The statute governed their relationship. The default alleged was from November, 1969 and the application for ejectment was filed on 9th of May, 1970. It would be noted that the default was relatable to a period about six years after the expiry of the contract of lease and the application for ejectment was filed after six and a half years of the expiry of the lease. In the present case the default alleged was from Ist of November, 1973 till the date of the filing of the application of ejectment. The contract of lease remained in full force from Ist of July, 1973 to 31st May, 1974. For the entire period from Ist of November, 1973 to 31st of May, 1974 the respondent was adjudged to be in default. If the ratio of Muhammad Yausaf's case was to be applied then after the expiry of this agreement, that is, from 1-6-1973 to 15th July, 1974 there would be no default because the conditions with regard to the specification of date and payment of rent in advance would not stricto sensu apply. This would, in no manner, mitigate or explain the default that had taken place during the currency of the lease agreement, that is, from 1-11-1973 to 31-5- 1974. It is clear to us, therefore, that the law laid down in Muhammad Youraf's case did not at all apply to this case.

17. So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's [title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevan for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory dutie as provided under the Ordinance. Reliance is placed for this on Amanullah Khan v. Chotey Khan , Muhammad Shah Alam v. Muhammad Abdul Ghafoor and Muhammad Yusuf v. Arghar Hussain .

18. The default of the respondent in paying or tendering the month]_ rent was upheld by all the three authorites including the High Court and no mitigating circumstance was found which may invite the exercise of discretion in his favour. On the contrary, the futility of his efforts to take a dispute over title of the property, abandoning it at a crucial stage and withholding rent on that account for over 10 months showed an element of contumacy and persistency in the misconduct.

19. ' The contention of the learned counsel for the respondent that the deposit of Rs, 25,000 should be taken in the nature of fine or premium in terms' section 7 of the Ordinance has not been raised in any of the forum dealing with the case and cannot be allowed to be raised in this appeal at the final stage.

20. ' The appeal is allowed with costs and the tenant is directed to hand over the vacant possession of the premises to the appellant. PLD 1980 SC 298 1978 SCMR 14 1979 SCMR 443 1980 SCMR 886