Mst. NUR JEHAN BEGUM Through Legal Representatives vs Syed MUJTABA

1. SALEEM AKHTAR, J. --The respondent filed application for ejectment against the appellants' predecessor Mst. Nur Jehan in respect of a portion of premises on plot bearing No. 125/B-11, Khalid Bin Walid Road, PECH Society, Karachi of which she was a tenant from the year 1972. Another portion of the house comprising of two rooms is used by respondent's son from August 1982 who had come to Karachi to complete his studies. The respondent had informed the appellant in August 1983 that on his retirement in December, 1983, he would need the premises in his occupation for his personal use. Such request was also made by a letter dated 11-10-1983. The respondent obtained leave preparatory to retire w.e.f. 1-1-1984 and after vacating the Government accommodation at Islamabad, came to Karachi but the appellant refused to vacate the premises.

2. The respondent then filed application for ejectment on the ground of personal bona fide requirement. In the written statement the appellant admitted the tenancy and denied the personal requirement of the respondent. She pleaded that in October 1977 respondent approached the appellant and her son and informed that date of his retirement from service was approaching and he would require one of the two tenements in the building for his own personal use and if the appellant was willing to agree to enhance the rent, the respondent would occupy the other tenement for his own use and that he would leave the appellant undisturbed in the premises let out to her. Accepting this representation the appellant raised the rent to Rs.480 per month. In March, 1978 upon similar representation rent was raised to Rs.600 per month and so was done in October, 1979 when the rent was raised to Rs.650 per month. Again on similar representation made in April, 1980, January, 1981 and February, 1982 rent was raised to Rs.700, 800 and 1,000 per month respectively. In these circumstances the claim of the respondent was denied. The learned Controller dismissed the ejectment application but in appeal the learned Single Judge of the High Court of Sindh allowed it and ordered for ejectment of the appellant. Leave to appeal was granted to consider the question of promissory estoppel which was specifically pleaded by the appellant in her defence written statement as well as in the affidavit in evidence filed on her behalf by her son and attorney Iqbaluddin who was not cross-examined on the defence plea of promissory estoppel.

3. Mr. Noor-ul-Arfin learned Advocate, Supreme Court has contended that the appellant had specifically pleaded in defence promissory estoppel and in affidavit of evidence repeated the plea specifically stating the dates when the respondent had made representation that in case rent was increased, he would not disturb her for his personal requirement but as he was not cross- examined on this plea the same should be treated to have been accepted. In support of his contention the learned Advocate referred to Monir's Law of Evidence 1969 Edition page 494 being commentary on section 137 of the Evidence Act, Halsbury's Law of England, III Edition, Vol. 15, para. 801 and C.B. Field's Law of Evidence Vol. 5, 11th Edition para. 10 page 4773. Mr. Noor-ul-Arfin has also referred to the, following authorities:-----

(1) PLD 1963 Kar. 465, Mst. Nazeer Begum v. Abdul Sattar.

(2) PLD 1967 Kar. 233, Qasim and others v. The State.

(3) PLD 1967 Lah.1138, Syed Iqbal Hussain v. Mst. Sarwari Begum.

(4) PLD 1981 Kar. 537, Muhammad Mujibur Rehman Siddiqi v. Abdul Bari and 3 others.

(5) 1985 CLC 2111, Muhammad Yasin v. Shabbir Ahmed.

(6) 1985 MLD 110, Fida Hussain v. Mst. Anwari Khatoon.

(7) 1987 MLD 515, Muhammad Ibrahim v. Haji Raza Hussain.

4. (8)1989 CLC 545, Karimuddin Shad v. Mst. Fatima Mian Ahmed.

(9) 1988 SCMR 819, Qamruddin through his Legal Heirs v. Hakim Mehmood Khan.

(10) AIR 1961 Calcutta 359, A.E.G. Carapiet v. A.Y. Darderian.

(11) AIR 1983 Calcutta 337, Traders Syndicate v. Union of India.

5. The principle enunciated in the commentaries and rulings is that where on a material part of his evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence.

6. Mr. Badrudduja Khan, the learned Advocate for the respondent has contended that although in cross-examination Advocate for the respondent had not directly asked question on the statement regarding alleged representations, yet indirectly suggestions were made that the rent was once increased because of the additional construction of mezzanine (dochatti) and on other occasions because the rent in the locality of similar premises was much higher than the rent of in which the plea raised by the appellant was denied and was not shaken in cross-examination. Therefore, on a parties it seems that there has been some omission on the part of the Advocate for the respondent to directly cross-examine the appellant's attorney on plea of promissory estoppel but the respondent has tried to rebut it by making suggestions and denying it in his evidence. The overall impression of the entire evidence is that the omission as pointed out by the learned Advocate for the appellant, would not amount to acceptance of, the plea raised by the appellant.

7. The learned Advocate for the appellant has also contended that the principles of promissory estoppel will apply to the case as the appellant had raised the rent accepting the respondent's representation that lie would not claim the premises for his personal use. According to the learned counsel the appellant acting upon it raised the rent from time to time and thus the respondent had bartered away his right to occupy the premises for his personal requirement. In order to illustrate the meaning and effect of the principles of estoppel by representation the learned Advocate referred to the following:-----

(1) The Law relating to Estoppel by Representation by George Spencer Bower, page 348;

(2) (1975) 3 AER 865;

(3) (1986) 1 LR 129;

(4) (1888) 40 Chancery Division 268;

(5) (1947) 1 KB 130;

(6) 1973 AC 836;

(7) 1986 SCMR 916; (8)PLD 1991 SC 5461

(9) 1990 CLC 493;

(10) 1984 CLC 2837 and

(11) PLD1984SC38.

8. In Halsbury's Laws of England, 3rd Edition, principles of promissory estoppel have been summed up in the following manner:----- "Promissory estoppel --When one party has, by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly then once the other party has taken him at his words and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced (e). This doctrine, which is derived from a principle of equity enunciated in 1877 (f), has been the subject of considerable recent development (g). It differs from estoppel properly so-called in that the presentation relied upon need not be one of present fact (h).

9. The doctrine `may have been too widely stated in recent cases (i) and its limits are not yet finally settled (k). The doctrine cannot create any new cause of action where none existed before (1) and it would seem that the person who has made the representation may once again enforce his legal rights after the other party has had an opportunity of regaining the position he held before the representation was made, if that is possible. The doctrine is known variously as `equitable' or `promissory' (m) or `quasi-estoppel."

10. In a recent judgment of this Court reported in PLD 1991 SC 546, Pakistan v. Sallahuddin and 3 others, Shafiur Rehman, J. Observed as follows:-- "The doctrine of promissory estoppel is subject to the following limitations, none of which is attracted in these appeals before us: ---

(1) The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot make a representation;

(2) Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out;

(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given;

(4) The doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(5) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."

11. The doctrine of promissory estoppel is based on principles of equity and justice. Where any person makes any representation orally or in writing and acting upon it, the other party changes his position, the person making such representation cannot resile from it. However, there are limits to such representation as enumerated above.

12. Reference has also been made to Zuhra Begum v. Burma Shell, PLD 1984 SC 38, but the applicability and extent of the principles enunciated in it have been explained in Habib Bank Limited v. Dr. Munawar Ali Siddiqui, 1991 SCMR-1185.

13. Making of a representation and its acceptance is a question of fact which should be established before applying the principles of promissory estoppel. Its existence depends upon the nature of representation and in the manner accepted by the other party. Mr. Badarudduja, learned Advocate for the respondent, contended that the appellant has failed to establish that any representation as alleged by the appellant was made by the respondent. Learned Single Judge of the High Court has also observed that there is nothing in writing to show that such representation was made from time to time by the respondent nor there is any independent witness to prove such fact. The appellant is relying on the statement of her attorney which though not directly challenged has been displaced. The appellant has served as Deputy Secretary to the Government of Pakistan and it does not sound to reason that from 1977 onwards till 1982 when the last increment was made the respondent would have always advanced the same plea of not occupying the disputed premises when he retires. He has sufficient number- of family members with no house at Islamabad or any sufficient accommodation at Karachi. After retirement he has settled at Karachi. This plan would have been in his mind from the very beginning as he had no accommodation at Islamabad. In this background how he could not have made such representation as alleged. It was only after retirement that he called upon the appellant to vacate the premises in 1983. On such demand being made the appellant could have at least addressed a notice to the respondent stating the representations allegedly made but nothing was done and the plea was raised for the first time in the written statement.

14. Even if for argument sake the appellant's plea of estoppel by representation is accepted then one has to inquire whether there is any limit to it or it clangs the whole life. The estoppel which emanates from representation temporarily affects the permanent rights of the parties to bring them in accord with the agreement. Bower in his book "The Law Relating to Estoppel by Representation" observed at p. 352 as follows:-- "It is submitted that the new estoppel does not give rise to a permanent modification of the rights of the parties (inter se). In general their original rights inter se are modified only for so long as is equitable, and the representor, may revert to the status quo, claiming on the original basis in respect of obligations falling due thereafter, either by giving sufficient notice, or by restoring the representee to a relative position equivalent to that which he originally occupied. This last may be brought about by act of the representor, or may take place by the happening of some event outside the control of the parties, or by the effluxion of time."

15. Equity has an important role to play in such a situation. The appellant has been a tenant of the premises from 1972 and as suggested by the respondent rent paid by her was much less than the rent prevalent in the locality. The respondent has retired from service and has hardly any proper accommodation for his family members which consists of grown up educated sons. The representation, if at all, was made from year to year or lesser period and, therefore, the demand for vacating the premises after passage of one year in 1983 cannot be called to be inequitable or unjust.

16. The appeal is dismissed. With the consent of Advocate for the respondent the appellant is allowed to hand over possession of the disputed premises to the respondent within six months provided the appellant continues to pay rent regularly to the respondent. In case the appellant fails to vacate the premises on expiry of six months the Controller shall issue writ of ejectment without notice to the appellant.