1979 PLP 348 (CLC)

5. I have heard Mr. Sabir Hussain Rehmani, Advocate for the appellant and Mr. A. M. Naqvi, Advocate for the respondent.

6. Mr. Rehmani has urged before me three grounds in support of this appeal. The first ground is that the default committed by the appellant was not wilful and therefore the defence of the appellant could not be struck off. The Second is that the Controller had no jurisdiction to entertain the application under section 13 of the Ordinance as the relationship was governed by the Transfer of Property Act. The third is that the respondent had no cause of action when he filed the application 29th April, 1974 and in other words, the application was premature.

7. Now, taking up the first ground the submission of the learned counsel for the appellant is that the appellant was confined to bed even after leaving the hospital till 15th January, 1975 and therefore, he could not deposit the arrears of rent and the rent for the month of November, 197 till 4th January, 1975 when the appellate Court granted the stay. In support of illness during the period from 28th December, 1974 to 3rd January, 1975 he referred to a certificate dated 20th April, 1976 issued by Dr. Hameedul Haq, Consultant Physician.

8. However, the certificate dated 20-4-1976 relied upon by the learned counsel for the appellant was not produced before the Controller when h passed the impugned order. In fact the certificate was obtained 3 days after the impugned order. Therefore, the Controller is right when he says "in the light of the above discussion I am of the view that the opponent has not explained the default in depositing the rent from 27-12-1974 till 5-1-1975 (4-1-1975) the date on which the stay was granted and as such I am of th considered opinion that the opponent has committed wilful default in depositing the rent in Court and hence has made himself liable for striking of defence". Moreover, it is not shown that any application was filed before the lower appellate Court for permission to produce this certificate by way of additional evidence. I therefore, cannot take this certificate into consideration and the question whether the appellant had committed wilful default in depositing arrears of rent and the rent for the month of November, 1974, as ordered by the Controller being one of fact stands correctly answered by the concurrent findings of the Controller as well as the Additional District Judge, Karachi. Moreover, if the appellant could fil appeal against the order dated 24-I1-1974 before 4th January, 1975 in spite of illness it is difficult to accept that he could not deposit the due before the date for reasons beyond his control. It appears that the appellant had no intention to deposit the dues and was depending on stay of the order by the Appellate Court. I therefore, find no force in this ground and reject it.

9. However, I may mention that the learned counsel for the appellant cited a large number of cases in support of the contention that where default committed is not wilful. The defence cannot be struck off. These are:- (1) Hashim Khan v. Ghulam Nabi and 7 others 1973 S C M R 112. (2) Saeedan Bibi v. Ali Hussain 1975 S C M R 261. (3) Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530. (4) Qamaruz Zaman v. Sher Afzal P L D 1966 Pesh. 119. (5) Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777. (6) Abdul Majeed v. Saadullah and others P L D 1963 Quetta 16. (7) Ghulam Muhammad v. Mst. Raj Begum P L D 1962 Quetta 136. 10. 1 may, therefore examine these cases. The first case cited by the learned Counsel is Hashim Khan v. Ghulam Nabi and others. In this case the Controller on 14-5-1966 directed the tenant to deposit arrears of rent before 15-7-1966 and current monthly rent regularly by 15th of each month. The tenant's counsel wrongly interpreted the order and informed his client that the arrears as well as the Current rent due were to be deposited by him by 15-7-1966. The order as interpreted by the Counsel was complied with. On these facts it was held by their Lordships of the Supreme Court that "the appellant acted on the advice given to him by the learned counsel and he could not be penalised merely because the Counsel's advice proceeded on a misinterpretation of the Rent Controller's order. In any event, we the submission is since the tenancy was yearly it was not governed by the Ordinance but by the provisions of the Transfer of Property Act.

20. This question directly came up for consideration in Shujauddin Qwreshl v. Mat. Hussan Ara Begum (P L, D 1964 Lab. 292) wherein his Lordship Anwarul Haq, J. (now a Judge of the Supreme Court of Pakistan) observed at page 306 of the report as follows :- "A detailed examination of the provisions of the Ordinance, which were described by the learned counsel for the appellant as unworkable in the case of yearly tenancies, clearly shows that this is not so. At the most some of the provisions may not be applicable in the case of yearly tenancies, but the main purpose of the Ordinance and all these provisions in particular is not defeated simply for that reason the matter, however, does not rest there. I have already pointed out that considering the definitions given in the Ordinance and the scope of its application as indicated in subsection (2) of section 1 of the Ordinance, it is clear that the yearly tenancies are not excluded from its purview. Subsection (1) of section 13 of the Ordinance further makes it clear that a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. This subsection, therefore, contains a clear prohibition against the enforcement of decrees of ejectment passed by civil Courts in respect of buildings or rented lands situated in the urban areas of West Pakistan, to which the Ordinance applies. I have already held that the building in the instant case is a building falling within the definition of that term as given in the Ordinance. The result, therefore, appears to me to be that whatever the nature of tenancy existing between the parties, the only means open to .the landlord to eject the tenant is by an application to the Rent Controller under the terms of the Ordinance, and not otherwise. I, therefore, find no substance in the contention that yearly tenancies fall outside the purview of the Ordinance."

21. Some support can also be drawn from a Division Bench case of Peshawar High Court in Muhammad Ali Khan v. Nur Muhammad Khan (P L D 1972 Pesh. 66) wherein the question which came up for consideration of their Lordships was whether civil Court had jurisdiction to entertain a suit for possession and mesne profits after the expiry of the period of the lease of 20 years. In this connection their Lordships of the Division Bench after examining the provisions of the Ordinance observed at pages 77 and 78 of the report as follows :- "There is yet another aspect of the case which may also be mentioned. According to section 13 of the Ordinance, which we have reproduced in relevant parts, a landlord is entitled to seek the eviction of his tenant only upon the proof of one or more grounds mentioned therein and in our view this again amounts to considerable handship for the landlord for under the Transfer of Property Act he could evict his tenant simply by serving him the required notice. The fact that while enacting the Ordinance the Legislature was aware of the rights of a landlord under the Transfer of Property Act it is clear that the Legislature intended that the unfettered rights of the landlord should be curtailed and the corresponding rights of the tenant considerably enlarged. The Ordinance being in the nature of special legislation would have to be given preference in those cases in which the eviction of a tenant is sought by his landlord and this notwithstanding that thereby the landlord would be subjected to hardship or additional burden.

14. The suit filed by the respondent in the civil Court appears to us to be incompetent for another reason. The appellants admittedly continued to be the tenants of the disputed premises up to 31-3-1965 in view of the lease deed executed between Mana Sing and late Dost Muhammad Khan, the father of the respondent, and the question is if after the expiry of the lease period they can be said to have become trespassers so as to sustain the claim of the respondent for mesne profits and the demolition of structures 7 The answer to this question would be found in section 2(i) and section 13(1) of the Ordinance by virtue whereof the appellants would continue to be the tenants of the premises notwithstanding the expiry of the original lease period. In other words the very cause of action upon which suit was filed against them by the respondent was wholly imaginary inasmuch as their tenancy could not have been terminated by serving on them simple notice in terms of the Transfer of Property Act nor could they be ejected from the premises unless proceedings were instituted against them in the Court of Rent Controller upon one of the grounds mentioned in section 13 of the Ordinance.

15. The upshot of the whole discussion is that notwithstanding the expiry of the original lease period of 20 years the appellants continued to be the tenants of the disputed premises by virtue of sections 2(i) and 13 of the Ordinance. In these circumstances the only relief which the respondent could have sought against the appellant would be their ejectment under section 13 of the Ordinance and for that purpose their remedy lay in the Court of Controller and not the civil Court.

22. I can do no better than to follow the reasoning in the two cited cases and hold that notwithstanding that the tenancy was for one year, and was renewed from year to year, the relationship between the parties was governed by the Ordinance and if the respondent wanted the eviction of the appellant for non-payment of rent or infringement of any conditions or terms on which the house was held he could proceed only in accordance with the provisions of the Ordinance.

23. As regards the third ground that respondent had no cause of action when he filed the application on 29-4-1974 or the same was premature I ma state that this pertains to the defence of the appellant which has been struck off and is, therefore, not available in respect of the order impugned in this appeal. Even, otherwise, when the application was filed on 29-4-1974 the rent for the months of November, December, 1973 and January and February, 1974 if not also for March, 1974 had already become due in accordance with the provisions of the Ordinance for even if the condition to pay rent in advance was not enforceable the liability to pay rent in accordance with the provision of the Ordinance could not be postponed till the end of the year. Further, when the Controller passed the order on 22-I1-1974, the one year period had already expired and the rent for the entire year had already become due under the law. Even the rent for the month of November, 1974 which was beyond the period of tenancy agreement and the payment whereof simply governed by the provisions of section 13(6) of the Ordinance was not paid on or before the due date. I therefore, find no substance in this ground also and overrule the same.

24. In the result, I hereby dismiss the appeal with costs. However, I allow the appellant one month for putting the respondent in possession of the house. S. A. H. Appeal dismissed.