1984 PLP 119 (MLD)

Dispensary furniture counter partition with spring door examina tion tables, etc. for outright sale. Apply Doctor Anklesaria"s Clinic, Kutchery Road." Another Exh.28 at page 119 of the lower Court record shows that K.M.C. rent for the disputed premises was Rs.44 per month. This is also an extract from the revision book 1960-61. Mr.Wajeehuddin has also drawn my attention to Exh. 13 which is an extract from the Jamabandi Roll of Municipal General Tax where it was shown that this property was transferred to Mst.Salma Najmi wife of Azizuddin Najmi vide C.D.C's extract dated 10-1-1968. This Exh. 13 had been filed by the respondent Azizuddin Najmi when his statement was recoded on 22-8-1968. On 28-8-1965 the respondent filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the appellant claiming eviction on the ground that there was default in the payment of rent at Rs.114 per month and on account of subletting. On 4-11-1965 the appellant filed written statement where the appellant took the stand that the rate of rent was Rs.44 per month and that the respondent being an influential person and through the manipulation and undue influence had managed to get the assessment of the tenament in question increased to Rs.114 per month instead of fair rent of Rs.44 per month and that the appellant had filed revision against the exorbitant and excessive rate fixed by the Excise and Taxation authorities and that the appellant was willing to pay rent at Rs.44 per month and had in fact remitted rent at that rate by cheque of Rs.2,508 in 1965, Sub-tenancy was denied. It was urged that the respondent had refused to accept the rent at Rs.44 per month. On 16-12-1965 order under section 13(6) was passed with the observation that the tenancy and the date since which the arrears are due are not disputed. Tentative rent at Rs.114 per month was fixed and the appellant was directed to deposit Rs.7,125 before 15-2-1966 and pay future rent at that rate. The respondent had examined himself in the case and proved various documents which have been referred to above. He proved that here was no payment of rent to him of any sort till 1965 and that the appellant had sent a cheque of Rs.2,376 at the rate of Rs.44 per month only in 1965 which the respondent had refused because it was not the correct rent. He could not say if the revision by K.M.C. was done on 14-5-1962. He had applied for copy of Exh.12 on 14-5-1962. He denied that the K . M. C authorities had not assessed the premises at the rate of Rs.

114. He asserted that the Excise and Taxation Department had based their assessment on previous K.M.C. assessment. He stated that the appellant wanted to hand over possession of the shop to some one on Pugri. The appellant has examined Dr.Feniwalla in defence who had stated that he had been employed with Dr. Anklesaria in 1965 at Rs.800 per month and he had paid income-tax on that salary and he produced order of Income-tax Department. He admitted that he was brother-in-law of Dr. Anklesaria who had a Nursing Home and Clinic at Garden Road. He admitted that a separate board of his name is also there at the disputed shop. Previous to 1965 he was running his own dispensary at 156, Kutchery Road, Karachi. He further stated that Dr,Anklesaria is still owner of the dispensary. Mr.Ghulam Mustafa, D.W.2 was also examined by the appellant who stated that the rent of the said shop was Rs.44 per month as assessed by the K . M. C . vide Exh. 28 and he also stated that this building now stands in the name of Mst. Salma Najmi. In cross-examination he admitted that in July, 1960 the assessment of the shop in question was revised from Rs.44 to Rs.114. In re-examination he stated that he had made a statement in cross-examination about revised assessment of the building on the basis of exract Exh.12. Dr.B.M.Anklesaria had admitted that in 1960 he had received a notice from the applicant that the property was transferred. He stated that the respondent was demanding higher rent but he told him that he was ready to pay the rent at the same rate which had been paid to the previous landlord and the respondent did not accept the rent from him. He stated that .he had sent rent by cheque vide Exh, 22 by letter Ekh.21.- He denied that he had advertised to sell the premises in any newspaper but it was advertised by Dr.Feniwalla for the sale of his furniture of his dispensary which was closed by him. He stated that Dr.Feniwalla was working in his dispensary as his servant since 1965 and he was paying salary of Rs.850 per month. In cross-examination he asserted that he came to know that. the premises in question was assessed by K.M.C. at Rs.114 when present rent case was filed by the respondent. Then stated that he came to know about K.M.C. assessment after the written statement was filed by him. ale did not remember if Excise and Taxation authorities had also assessed the premises at Rs.114. He did not know if he had filed revision against the assessment made by the Excise and Taxation authorities. He did not remember on what basis the respondent had demanded rent at Rs.114 per month. He did not remember that whether he inquired from K . M. C . about the rate of assessment. He admitted that in the first notice sent by the respondent to him the rent was demanded at Rs.114 per month. He admitted that he had never sent rent at Rs.114 per month. He admitted that he was not willing to pay rent at Rs.114 but was ready to pay rent at Rs.44 per month. The Rent Controller had decided all the issues against the respondent in respect of default as well as subletting. He was of the view that the respondent had failed to prove that the rent of the premises was Rs.114 per month and that the appellant had tendered rent at Rs.44 per month by his Exh.22 and, therefore, there was no question of default. On the question of subletting he held that Dr.Feni walla was working with the appellant as a servant. The Additional District Judge in the appeal filed by the respondent held that the first notice under section 30 of the D.P.P (C & R ) Act, 1958 has been posted by the respondent on 15-3-1963 and the A.D. received by the respondent on 25-3-1963 demanding Rs.114 per month and since the appellant had tendered rent only on 30th March, 1965 therefore, the appellant had failed to tender rent even at Rs.44 per month within three months of the receipt of first notice Exh.6. For this purpose he relied upon 1960 S C M R

435. He also held that the K.M.C. assessment of the premises was Rs.114 per month arid, therefore, it was necessary for the appellant to tender rent at Rs.114 per month and, therefore, even the tender in March, 1965 by the appellant of rent of Rs.44 per month was not the tender of correct amount of rent and, therefore, the rent appellant had against defaulted in the payment of rent eyen in 1965. In respect of subletting he had come to the conclusion that the appellant had sublet the premises to Dr.Feniwalla because Dr.Feniwalla had admitted that the appellant had another clinic where he sits. He took into consideration the difference of Rs.50 in the pay Dr.Feniwalla stated that he was drawing a pay of Rs.850 while the appellant alleged to have been paying to Dr.Feniwalla Rs.800 only. Mr.Wajeehuddin learned counsel submitted that the notice Exh.6 and its postal receipt Exh.5.7 and A/D. receipt Exh.8 should have been left out of consideration by the learned Additional District Judge because this was not properly proved. He submitted that the respondent had only referred to a notice of 18-3-1965 in his letter of first July, 1965. And the second notice referred to therein was of 1960 and, therefore, 1963 notice was not even alleged in the earlier correspondence by the respondent. I find that Exh.6 has been properly brought on record and it was produced by respondent in his statement on 22-8-1968. The same is accompanied by postal receipt bearing the stamp of 15th March, 1963 for a registered letter and the registered A/D. receipt addressed to Dr. Anklesaria is shown to have been received on 25-3-1963 by some one for Dr.Ankiesaria. There is a presumption under section 14 of the Evidence Act that official acts have been regularly performed and that common Court of business has been followed in particular cases. Moreover, Mr.Qutabuddin had pointed out that under section 3(c) of the Post Office Act, 1898 there is a presumption that where the delivery is made of a postal article at the house of the addressee it is deemed to be delivery of the article to the addressee. Consequently the Additional District Judge was quite justified in relying upon the notice Exh. 6 sent by the respondent to the appellant in 1963 and since he appellant had failed to render any rent even at the rate of Rs.44 per month within three months of 25-3-1963, therefore, the appellant had committed default in the payment of rent. It is pertinent to note in this respect that the appellant did not utter a single sentence denying receipt of notice Exh. 6, and therefore, he can be rightly presumed to have received that notice. Counsel for the appellant submitted that discretion should have used in favour of the appellant as he had tendered full rent at Rs.44 per month in 1965 for 54 months although he was bound to tender only 36 months rent which could be considered to be due as the of the rent was time-barred. I do not agree with this submission the learned counsel. The appellant had himself admitted that he had received notice in 1960, demanding rent, from the respondent at Rs.114 month but he did not give that rent. The Additional District Judge rightly found that the appellant had been served with notice under section 30 of the D.P. Act, 1958 and yet the appellant failed to pray rent. This clearly shows that the appellant .was not prepared to pray the rent at the rate demanded by the respondent fur which they was proper notice given. Counsel for the appellant had submitted that there was inconsistency between Exh. 28, which showed K.M.C. assessment of the disputed premises at Rs.44 per, month in 1960 51 and hxh.12 which showed K.M.C assessment at Rs.114 per month. This submission of the learned counsel is of no consequence when we find that the appellant was a party to the order passed by Excise and Taxation Director, 26th of June, 1964 where the K.M.C. assessment of 1961 had been clearly referred to as at Rs.114. per month and even submission of the present appellant had been noted. The rent of these premises was determined to be Rs.114 per month. Thereafter, the appellant had no justification of saying that he did not know of the K.M.C, assessment and further he had absolutely no basis not to tender rent at this rate to the respondent merely because he had filed a revision against the same before the Commissioner, Karachi, to fact I find that the appellant has made a completely useless statement when he stated that he did not know that the K.M.C have assessed the premises in question at Rs.114 per month and surprisingly he had even denied the knowledge: that he had filed a revision before the Additional Commissioner against the order of the Excise and Taxation Director. The very title: of Exh.l4 which is an order passed by the Additional Commissioner shows that Dr.B.M.Anklesaria had filed a revision against A.D.Najmi. The only conclusion that one can arrive: rat after looking at the statement of the appellant is that under no circumstances he was prepared to make payment of rent at Rs.114 per month. Even pat the time of making his statement in Court on 6-2-1974, about eight years after the final order passed by the Additional Commissioner, Karachi upholding the order of the Director, the appellant insisted that he was not willing to pay rent at Rs.114 per month. In these circumstances the attitude of the appellant was the attitude of a persistent defaulter who was not willing to see reason under any circumstances and, therefore, no discretion could have been exercised in his favour and he was rightly ordered to be evicted from the premises. Counsel for the appellant then submitted that the property having been transferred by the respondent in the name of his wife in 1968, therefore, be could not have continued with this application. The learned counsel was not able to cite any authority that the application was incompetent from the date of the transfer. In any case the application for ejectment having been filed in 1965 when the respondent was admittedly the owner of the property and the correspondence exchanged between the parties also shows that the appellant had never challenged the title of the respondent the same position was taken in the written statement and upto the time of the passing of the tentative rent order, therefore, a proceeding which had been competently filed by the respondent could not become incompetent. Whatever happen after the filing of the ejectment application and during the pendency of the proceedings is covered try doctrine of pendente lite Section 52 of the Transfer of Property Act clearly maintains a status quo in respect of pending proceedings and any transfer during the pendency of those proceedings does not affect the right of any party to those proceedings The broad purpose of section 52 is to maintain the status quo un-effected by the act of any party to the litigation pending its determination. In Faiyaz Hussain Khan v. Prag Narain (1907) 29 All. 339 it was held that if, when the jurisdiction of the court had once attached, it could be ousted by the transfer of the defendant interest, there would be no end to litigation and justice would be defeated. In the case of Bellamy v. Sabine (1857) I D e G J 566 and Lakshman Das v. Dasrat I L R 6 Bom. 168 it was observed .that "it would be plainly impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail." .. It was further observed that Nis pendens affects a purchaser, not because it amounts to notice but, because the law does not allow litigant parties to give to others, pending litigation, rights to the property in dispute as to prejudice the opposite party". Consequently I hold that the transfer of the property by the appellant to his wife in 1968 was of no consequence in respect of present proceedings. Appellant's counsel had relied upon P L D 1981 S C 543 where the Supreme Court had granted an injunction in a civil Suit on the basis that there had been a fraud in the rent proceedings in view of the fact that in most solemn judicial proceedings the landlord had admitted that he had no connection with the property in question while the eviction was granted for personal need. The question of fraud in this case does not arise at all because the respondent himself had filed Exh.13 in this case on 22-8-1968, which showed that he had transferred the property to his wife, and in this case the eviction is on the ground of default, and therefore, nothing turns upon the effect of transfer of property pendente lite. I may mention here that in the appeal filed by the present respondent against the order of the Rent Controller in 1974 the appellant had not filed any cross-objections against the maintainability of the appeal of the respondent on the ground that he was riot competent to file the appeal because he was nip more the landlord of the property in 1974 which position was known to the appellant since August, 1968. Even in the present appeal filed by the appellant in 1975 there is no ground taken that the proceedings were incompetent from 1968. Therefore, this oral objection of the learned counsel in this second appeal on the date of the argument was merely a superfluous objection. In any case the appellant is debarred from challenging the title of the respondent under section 116 of the Evidence Act. Moreover, the definition of the landlord under the Rent Restriction Ordinance, 1959 includes a person who is entitled to recover the rent and the respondent has been recovering rent deposited by the appellant in these proceedings without any objection from the appellant. Even otherwise the respondent is husband of the alienee. Consequently the objection in respect of maintainability of the proceedings is not found to be correct. Counsel for the appellant had also attacked the findings of subletting. I find justification in that submission. The respondent had merely stated in his deposition that the appellant wanted to hand over possession of the shop to some one on Pugri. And this statement he made on 22-8-1968 and he had not state that the appellant had in fact transferred the premises to some one on Pugri or had In fact sublet the same to Dr. Feniwala and, therefore, the finding about subletting by Additional District Judge was uncalled for. Mere difference of Rs.50 in the salary of Dr. Feniwala did not justify the inference of subletting, particularly when the respondent had not come forward with any definite statement on this account. Consequently the finding of subletting is set aside. The appellant is ordered to hand over possession of the premises to the respondent but he is allowed four months time to do the same subject to payment of rent at Rs.114 per month in accordance with the orders of the Rent Controller. M.B.A. Order Accordingly.