2001 PLP 648 (MLD)

"(1) What is the rate of rent? (2) Whether Opponent (tenant) has committed default.?" The parties led evidence, by filing affidavits‑in‑evidence, and after hearing the parties the learned Rent Controller disbelieved the version of the tenants as to the rate of rent, but at the same time did not allow ejectment, It is for this reason, that both the tenants and the landlord have filed appeals against the findings of the learned trial Court. I have heard the learned counsel for the parties at length and perused the record. Mr. H.A. Rehmani learned counsel for the tenants submitted his arguments in all the rent appeal except F.R.As. 610 and 627 of 1991 attacking the findings of the learned Rent Controller to the extent of upholding the rate of rent as claimed by the landlord, being rent payable by the tenants and the directions given to them to pay such rent together with the deficit amount within specified time. He further submitted that the findings of the learned Rent Controller on this issue are contrary to law and evidence‑on‑record. According to him the following points are involved in the appeals:‑‑ (a) Whether the rates of rent fixed or revised by the Administrator of APO in respect of the premises (subject‑matters of these appeals) are legal and valid? (b) Whether such rates of rent can legally be enforced? (c) Whether Rent Controller can legally direct the tenants to pay rent at such revised rate? (d) Whether Rent Controller has rightly declined to order the ejectment of tenant in view of the pleadings and evidence‑on‑record. He submitted that the admitted position on record is that the rate of rent of each shop was Rs.125 per month. The building was taken over by the APO on 8‑11‑1978 and that the landlord had invoked the Constitutional jurisdiction of this Court by filing the Constitutional petitions, seeking declaration that the order of taking over the property by the AOP treating the same as abandoned property was illegal. That action was declared void, without lawful authority. The Hon'ble Supreme Court also declined to grant leave to appeal. Thus, according to Mr. H.A. Rehmani, as the initial order, dated 8‑11‑1978 was declared void and without lawful authority, therefore, all the subsequent acts and orders of the APO were rendered void as such being nullity in the eye of law, all the orders of APO for the revision of rent from the original rate of Rs.125 to Rs.250 were also void ab initio and the revised rates of rent were not legal and valid. In support of this submission the learned counsel relied upon the case‑law as Muhammad Aslam Zia and others v. Yousuf Ali PLD 1958 SC 104, Government of Sindh and others v. Khaleel Ahmed and others, 1994 SCMR 782 and Akbar Hussain v. Muhammad Tayyab, PLD 1995 Karachi

452. Lastly he submitted that the landlord did not mention at what rate they claim the rent from the tenants and so also period of default in the ejectment applications. Thus, the landlord failed to establish that the tenants had committed wilful default in the payment of rent and the landlord cannot succeed on the ground of default without pleading full particulars in the rent applications. The vague allegations regarding commission of default are not sufficient. In support of this submission he relied upon, Muhammad Younus v. Dr. S. Muzammil Ali 1981 CLC

327. Mr. Muhammad Zia Oreshi, learned counsel for tenants in F.R.As. Nos.610 of 1991 and 627 of 1991 while adopting the arguments of Mr. H.A. Rehmani, added that without getting determined the fair rent under section 8 of S.R.P.O, 1979, the landlord was not entitled to claim rent at the rate which he had claimed. He also denied the existence of relationship of landlord and tenants, as on the one hand the legal heirs of the late Aminuddin claimed to be the owners while on the other, it is their case that the property is owned by M/s. Pak Italian Marble Works (Pvt.) Ltd. In support of his submission, he also relied upon, Fankson & Co. v. Muhammad Hussain, PLD 1973 Notes, 141 at p.213 and Boman Abadan Irani v. Jehangiri J. Mobil PLD 1967 Karachi

449. M/s. S.M. A.khtar Rizvi and Arshad Mobin Ahmed, learned counsel for the landlord in all the appeals submitted that in the instant cases question of legality or otherwise, about the fixation of rent by the APO does not arise. But it is to be seen, whether tenants on service of notices under section 18 of S.R.P.O. 1979, tendered rent to the landlord within the stipulated period of 30 days; what was the agreed rate of rent or the rent payable by the tenants to the landlord; and whether the learned Rent Controller was justified to order the tenants to make payment of deficit amount of arrears to the landlord instead of ordering their ejectment on account of default in payment of rent. The last contention is raised with reference to the appeals filed by the landlord. While elaborating the above points, the learned counsel for the landlord submitted that service of notice under section 18 of the S.R.P.O. 1979 is not disputed by the tenants, in view of their replies which are placed on record inasmuch as in their cross‑examination, the tenants have admitted receipt of notices, and the fact that the property was released in favour of the landlord in May, '1985. However, none of the tenants tendered or paid rent to the landlord prior to January, 1987 (in cases of shops) and April 1987 (in the cases of flats), although it is legal provision that rents should be paid within 30 days of service of notice. Thus, prima facie, the tenants committed wilful default for the period intervened and there is no explanation for said default. While replying to the contention of the learned counsel for the tenants, that the notices under section 18 of the S.R.P.O. did not speak about the rate or arrears, they submitted that, the landlord is not legally bond to do so. However, if the tenants had been cautious enough in depositing rent, they could have tendered the same at the initial rate, but they did not do so deliberately and intentionally, therefore, instead of directing the tenants to pay the arrears of rent accepting the rate of rent claimed by the landlord, the learned Rent Controller should have ordered ejectment of the tenants from the demised premises. In support of this submission, the learned counsel relied upon Mst. Nafisa v. Northern Traders, 1984 CLC 2711, Syed Azher Imam Rizvi v. Salina Khatoon 1984 MLD 46; Ghulam Samdan v. Abdul Hameed, 1992 SCMR 1170 and Habib Bakhsh v. Mst. Bilquis Begum 1995 SCMR

448. They also contended that it is not the case of the tenants that the landlord avoided or refused to accept rent tendered personally by the tenants, which forced them to tender the rent through money orders as alleged by them, which is an essential ingredient under the provisions of law. They further submitted that the tenants, without service of notice about deposit of rent in miscellaneous rent cases, cannot absolve themselves from their legal duty to offer rent in the mode provided by law in this regard they relied upon Muhammad Saleem Qureshi v. M. Mohsin Butt, 1996 CLC 381, Pakistan Food Manufacturing v. Sadiq Ishaque, 1992 CLC 482, Munawar Hasan v. Badiul Hasan, 1992 CLC 2495, Abdul Malik v. Mrs. Qaisar Jehan, 1995 SCMR 204 and Habib Bukhsh v. Mst. Bilqis Begum, 1995 SCMR

448. Learned counsel for the landlord, also referred to the following paras., from the R & Ps of R.F.As. Nos.588, 590, 592; 594 and 595 of 1991. (a) In para. 10 of preliminary objections in the written statement, the tenant has submitted that in response to the notice under section 18 of S.R.P.0..1979, he sent rent to the landlord (applicant) January 1987, through money order at Rs.125 per month (instead of Rs.250 per month at which rate he had paid the same to APO for about 4 years without any protest. (b) In para. 5 of , the preliminary objections of written statements, money order, dated 3‑1‑1987 is given through which the rent for the first time was sent to the landlord. This fact is also mentioned in paraR12 of the affidavit‑in‑evidence of tenant. (c) In para. 7 of the written statement the receipt of notice under section 18 of the Ordinance, 1979, is acknowledged and in its sub para. (2), tendering of rent through money order to the landlord (applicant) is mentioned. (d) Annexure "F" of written statement in Rent Case No. 1016 of 1987 of Shop No.9 is the Order of Board of Trustees of APO dated 14‑2‑1985 in which the "present rent" is mentioned for the five shops Nos.5, 6, 7, 8 and 9 as Rs.250 each and Flats No.9 and 7 as Rs.300 each. With reference to shop No.9, the learned counsel further submitted that the rent for this premises was Rs.250 per month and revised rent was Rs.330. At no time, the rent for this shop was Rs.125 per month, as claimed by the tenants, as is the case of other tenants. In fact this tenant was inducted by the APO at the rate of Rs.250 per month thus, there is no revision of rent from Rs.125 to Rs.250 in this case. The tenant of this shop, in his cross examination admitted that he had started giving rent to the APO from 14‑4‑1984 and the last payment was made by him for July, 1986. Since he sent rent to the landlord in January, 1987 and that too at the rate of Rs.125 in response to the notice under section 18 of the S.R.P.O. 1979, as per para. 10 of his written statement, he is wilful defaulter for the period intervened i.e. August, to December, 1986. With reference to F.R.A. No.591 of 1991 in respect of Flat No.7, they submitted that reply of tenant to the notice of the landlord is sufficient proof of service of said notice. Moreover, in para. 2 of the written statement as well as in the affidavit‑in‑evidence, the remittance of rent to the landlord through money order is mentioned by the tenant. However, in para. 7 of the affidavit‑in‑evidence to tenant it is wrongly mentioned that rent was enhanced from Rs.170 to Rs.300, having been challenged through Civil Petition No.D‑662 of 1985, as a matter of fact revision of rent from Rs.300 to 400 was challenged through said Constitutional petition, which is apparent from Exh.0.2 of R.C. No.1008 of 1987 (F.R.A. No.588 of 1991) and the said Civil Petition was dismissed by this Court. However, the earlier enhancement of rent from Rs.170 to Rs.300 per month was never challenged by the tenant, which he continued to pay till May, 1984 i.e. for about four years without any protest.. Regarding other objection, they submitted that the tenant himself, during cross- examination admitted that the property is owned by M/s. Pak Italian Marble .Works (Pvt.) Ltd. and M/s. Naushaba is its Chief Executive. With reference to F.R.A. No.610 of 1991, similar stand was taken about enhancement of rent from Rs.250 to Rs.300 having not been challenged in this Court. In this case the enhancement of rent from Rs.300 to Rs.400 was challenged in the petition and this petition was also disposed of alongwith earlier petition, with a common order. This fact is also admitted in the cross‑examination by the tenant. He also admitted that despite receipt of second notice he did not tender rent to the landlord. In this case the previous rent was not challenged by the tenant, and he deposited the same up to May, 1984 for about more than four years without any protest. Regarding other tenants, their general arguments was that, since the tenants paid rent to the APO at the particular rate, therefore, they were bound to pay the rent at least at same rate to the landlord, and not at the old rate of their own accord and that too within specified time and proper mode provided under the law. I have carefully examined the above submissions of the learned counsel for the parties, in the light of evidence on record as well as the case law cited by them. Now I propose to deal with the contentions of the learned counsel for the tenants. So far maintainability of ejectment applications is concerned, the learned counsel for the tenants has failed to give any cogent reason in this behalf. Regarding submissions about validity of notices under section 18 of S.R.P.O., 1979, suffice it to observe and as was rightly submitted by the learned counsel for the landlord section 18 of the S.R.P.O., 1979 does not require and the landlord is not duty bound to mention the rate of rent, as well as arrears of rent in the notice. However, all essential details i.e., the rate of rent and arrears and period default in number of month etc., are mentioned in A para. 12 of the ejectment applications. The requirement of law is that the landlord should send only intimation to the tenants regarding change of ownership in writing by registered post and the tenant is under obligation to pay rent due to the landlord within 30 days of receipt of such intimation. There is no denial of the fact that the tenants were intimated by the landlord through notices dated 23‑12‑1985 and 5‑7‑1986 and they failed to comply with such requirement of law by not sending/tendering rent to the landlord, at least, for more than one year in all cases. Therefore, the contention of the learned counsel for the tenants is devoid of any force. Furthermore, the tenants have paid the rent at the revised rate of Rs.250 for each shop and Rs.300 for each flat, without any protest, continuously for about more than four years to the previous landlord i.e. APO which indicate their consent to accept such rate of rent and this, in my humble view, was the rent which the tenants were liable to pay, therefore, submissions of the learned counsel for the tenants that quantum of rent was never finally decided in the Constitutional petitions is also devoid of any force. Thus, viewed from any angle there was no dispute regarding rate of rent as Rs.250 for each shop and Rs.300 for each flat as the tenants had accepted to pay rent at such rate for a long period of snore than four years and in the circumstances, the landlord was not required to get the fair rent fixed, prior to the institution of the ejectment proceedings. The contention of Mr. Muhammad Zia Qureshi, the learned counsel for the tenant that without getting the fair rent fixed under section 8 of S. R.P.O., 1979, the landlord can not claim Kent at the rate, as claimed in the ejectment applications does not contain any weight. The learned Rent Controller has held/determined the rent payable by the tenants at the rate, as claimed by the landlord in the ejectment applications on the ground of disbelieving the plea of the tenants that they were paying the rent at such rate under protest. She has given Ole reason in this behalf that such plea was not taken by the tenants in their written statements. The tenants had paid the rent to APO at the revised rate of Rs.250 for each shop and Rs.300 for each flat for about more than four years from 1980 to 1984 admittedly, without any protest, and such revision of rent was never challenged by them before any forum, at any time, rather they accepted and paid the same for more than four years from 1980 to May, 1984. However, when APO again revised the rate of rent after May, 1984, the tenants had challenged such revision by preferring appeals before the Board of Trustees of APO and on failing to succeed therein before this Court in Constitutional petitions, as mentioned above. During pendency of their appeals before the Board, the tenants started depositing the rent at the rate revised after May, 1984 by the APO. In fact that was the stage when the tenants could be said to have deposited the rent under protest at the rate revised after May, 1984, because their appeals, challenging such revision were pending at that time. Keeping in view this aspect the learned Rent Controller has erred in holding the rent payable by the tenants at the rate, as claimed by the landlord which was the rate of rent after second revision at the hands of APO after May, 1984. In my humble view, the rent payable by the tenants was at the rate at which they had continuously paid it for a long period of about more than four years without challenging the same at any forum and that was Rs.250 and Rs.300 per month for each shop and each flat respectively. Mr. H.A. Rehmani, also contended that from the bare reading of section 18, S.R.P.O., 1979' it is clear that such provision of law is not applicable except in the case, where transfer of ownership from one owner to another takes place. He further submitted that the case of the landlord is not based on the transfer of ownership by the APO to them, but it is a case where their ownership was usurped by the APO and the same was restored by order of this Court. The learned counsel for the landlord in reply have contended that in the present cases provision of section 18 S.R.P.O., 1979 are fully attracted, as the APO was collecting rent from the tenants of the demised premises as its owner, on acquiring the same as abandoned property. When such act/action of APO was declared null and void by this Court and the property was restored to the landlord, obviously there is change/transfer of ownership, at least for the purpose of payment of rent by the tenants. Moreover, undoubtedly transfer of ownership in the present cases is not by way of sale, or gift and inheritance but the words "such other mode" have also been used besides the words "Sell, gift, and inheritance" in section 18 of S.R.P.O., 1979. The usage of such words in the section is not without significance. Notwithstanding this aspect the law is well‑settled that in any way the technicalities cannot defeat the ends of justice. I am of the view that the, above contention of learned counsel for the tenants have no weight, at all, while the submission of learned counsel for the landlord is in accordance with law. The provisions of section 18 of S.R.P.O., 1979 are attracted in the instant cases. The contention of Mr. H.A. Rehmani is that the tenants were depositing rent in this Court (in Constitution Petitions) in the name of their previous landlord i.e. APO and had deposited the same till December, 1986 and thereafter, on refusal of the present landlord to accept the rent, sent through Money Orders, the tenants started depositing the same regularly in the Court of learned Rent. Controller in the name of present landlord, as such, the question of wilful default does not arise and is misconceived and this could not be treated as a technical default. In the judgment reported as Mehboob Jewellers and others v. Nur Ahmed, 1989 SCMR 1327 cited by Mr. H.A. Rehmani, the tenants received notice from subsequent landlord asking them to pay rent to him. Tenants who had. by that time already deposited rent in the name of previous landlord upto a specified date, demanded copy of registered documents for compliance of the demand. Tenant's request was not complied with so they continued depositing advance rent in the name of the previous landlord. When the previous landlord showed tenants copy of transfer deed in favour of subsequent landlord, tenants had already deposited rent in advance. Tenants, therefore, started depositing rent in the name of subsequent landlord. Tenants were not found to have made wilful default in payment of rent. Under these circumstances, their Lordships of the Hon'ble Supreme Court have held that in any case default was a purely technical one which ought to have been condoned. Here, in the present cases admittedly the' landlord sent notice, dated 23‑12‑1995 under section 18 of S.R.P.O., 1979 demanding rent from the tenants but none of them tendered the rent prior to allegedly having sent through money orders in January, and April, 1987 in the cases of shops and flats respectively at the rate of Rs.125 and Rs.170 instead of Rs.250 and Rs.300 per month although, they had paid rent at the abovementioned higher rates for about more than four years without any protest. In the above cited case, the rate of rent was not in dispute and the tenants who had already deposited rent in advance in the name of previous landlord on coming to know the document of change of ownership immediately started depositing the rent in the name of the new landlord which is not the position in the present cases. Therefore, this judgment is hardly of any help to the tenants. So far as the contention of Mr. Muhammad Zia Qureshi challenging the relationship of landlord and tenant is concerned, admittedly the property in question was restored to the landlord by judgment, dated 5‑5‑1985 of this Court. The tenants sent the rent through money order. Therefore, it amounts to admitting them to be the landlord and as such, the tenant could not challenge the relationship. Moreover, the indenture of lease of the demised premises is available on record, which shows the name of M/s Pak Italian Marble Works Limited as lessee thereof. The landlord as defined in section 2(f) of S. R. P.O., 1979, includes an owner of the property. No where the ownership of the landlord Company in respect of the demised premises is disputed, hence there is no scope in the instant cases for the tenants to challenge the relationship of landlord and tenant between the parties. Now coming to the question of tendering rent through money order, all alleged by the tenants, and its deposit in M.R.C., it has come in evidence and has also been admitted by the tenants in their cross‑examination that despite receipt of two notices, they did not tender/pay rent prior to January, 1987 and April, 1987 in the cases of shops and flats respectively when for the first time the rent was sent through money order. There is hardly any doubt that the tenants did not pay/tender rent within time prescribed by lain. Such a tender of rent at the belated stage cannot advance the case of the tenants to wipe out the default which had already been committed and this could not be termed to be a technical default. As observed earlier, the tenants failed to tender rent to the landlord for more than one year after service of the notice under section 18 of S.R.P.Q, 1979. The next and important submission of the learned counsel for the tenants was that since the notification/order of the APO, acquiring the demise, premises of the landlord as abandoned was declared null and void, which attained finality upon refusal of the Hon'ble Supreme Court to grant leave in the matter, therefore, all subsequent actions/orders including fixation of rent by the APO were illegal and, as such, the revised rate of rent could not be held to be applicable to the tenants and they would not be liable to pay rent at such rate. This submission is also devoid of any force because, the tenants were liable to pay rent at the rate, at which they had lastly paid for more than four years from 1980 to May, 1984 to the APO without any protest and this was the rate of rent payable by the tenants to the landlord. In view of above, the case law cited by Mr. H.A. Rehmani and Mr. Zial Qureshi are not applicable in the instant cases. On the contrary, in Habib v. Mst. Bilqees Begum, 1995 SCMR 448, cited by the learned counsel for the landlord, the Hon'ble Supreme Court declined to interfere with the judgment of this Court whereby ejectment of the tenant was ordered on the ground of default in payment of rent, who despite service of notice by the new landlord regarding change of ownership deposited rent with Rent Controller in the name of previous owner without following the proper course for tendering rent to the new landlord. If, at all could have paid rent according to law. Thus, rent to the landlord at the rates, which were prevailing, the demised premises. ' out that the receipts of rent produced by the tenants are sufficient to determine the agreed rent between the parties and/or rent payable by the tenants to the landlord in view of the long practice to pay the rent at revised rate for a period of more than four years from 1980 to May, 1984 to APO i.e. the previous landlord without any protest. The tenants were not legally competent to challenge the rate of rent under the law of estoppel and waiver. While dealing with the submission of the learned counsel for the landlord that the learned Rent Controller was duty bound to order the ejectment of the tenants from the demised premises in their possession, when they were found to have paid the rent lesser than that payable by them, I am of the view that once the tenant is found to have paid the rent lesser than the amount due and payable by him, it amounts to a wilful and deliberate default in terms of section 15(2) (ii) of S.R.P.O., 1979. The learned Rent Controller is not empowered to condone the wilful and deliberate default committed by the tenants and is duty bound to pass order of eviction of the tenant. This essential element has been successfully proved by the landlord, in the present cases. Once the learned Rent Controller had come to the conclusion that the tenant had deposited the rent much lesser than the amount payable by them, he was bound under the law to pass order of eviction against the tenants instead of directing them to pay/deposit the deficit amount. I therefore, hold that the findings of the learned Rent Controller in respect of not ordering eviction of the tenants being perverse and contrary to law are reversed. In my considered view the tenants have committed wilful and deliberate default in payment of rent at the rate payable by them and, therefore, they made themselves liable for eviction from the demised premises. The upshot of the above discussion is that the appeals of the tenants bearing F.R.As. Nos.588, 590, 591, 592, 594, 595, and 610 of 1991 are dismissed while the appeals of the landlord bearing F.R.As. Nos.622, 623, 624, 625, 626, 627 and 628 of 1991 are accepted and the findings of the learned Rent Controller to the extent of not granting ejectment of the tenants are reversed. They are directed to hand over vacant possession of the respective premises to the landlord. On 18‑3‑1999, by a short order the tenants were granted 60 (sixty) days time to vacate the respective premises in their possession and their appeals, were dismissed whereas the appeals of the landlord were allowed. The above are the reasons for the same. H.B.T./A‑118/K Order accordingly.