P L D 1976 Karachi 169 (PLP)

Mubarak Hussain for Respondent. Dates of hearing : 24th October and 3rd November 1975. This Second Appeal was filed by the tenant, Mr. Shaikh Ghaus Bakhsh who died on 15-2-1971 and his legal representatives, the present appellants were substituted in his place. Therefore, the reference to the tenant or appellant is to deceased Shaikh Ghaus Bakhsh.

2. The dispute in this appeal relates to premises bearing No. 3/2 III-A-206 on a plot of land bearing No. 12 sheet R-B-9 known as Malkani Mansion situated at Bunder Road, Karachi, which was purchased by the respondent in auction from the Settlement Department. The provisional transfer order was issued to the respondent on 8-6-1965, after which he served a notice on the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on 14-10-1965. The appellant acknowledged receipt of the said notice through his Advocate by letter dated 15-12-1965, wherein it was alleged that the rent had been remitted through money order, but at the same time the appellant asked the respondent to show the documentary proof of the purchase of the premises. However, the admitted fact is that no rent was sent by money order and therefore the respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the 'Ordinance') for ejectment of the appellant on two grounds, namely, non-payment of rent and subletting of the premises without the consent of the landlord. The appellant contested the proceedings and denied the allegations regarding subletting of the premises by asserting that his family was living in the house. As regards non-payment of rent the case of the appellant was that in reply to the statutory notice sent by the respondent the appellant had called upon the respondent to show him the title deeds and therefore due to the respondent's failure to do so, the appellant was not in default of the payment of rent. Besides the appellant also raised the question of validity of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Rent Controller 'after hearing the parties came to a finding that the statutory notice was valid and proper and that the appellant was guilty of non-payment of rent, but, that he had not sublet the premises. Accordingly, the learned Rent Controller by his order dated 12-7-1967 directed the appellant to put the respondent in possession of the premises. Aggrieved by the said order the appellant filed an appeal which was dismissed by the learned Additional District Judge, Karachi, on 1-5-1968. The appellant has, therefore, come up in second appeal to this Court.

3. During the pendency of this appeal, on 21-5-1968, an application ' under Order XLII read with Order XLI, rule 27, C. P. C. was made on behalf of the appellant, seeking to produce four documents by way of additional evidence. These documents consist of (1) a letter dated 21-6-1964 by the Deputy Settlement Commissioner (Disposal), Karachi, addressed to the appellant saying that the premises in question had been transferred to one Khan Bahadur Dr. Tassaduq Husain MD, Retired Civil Surgeon and Eye-Specialist, by judgment/order dated 31-3-1960 and calling upon the appellant to pay the rent to the said transferee, (2) a post card purporting to be written by the said Dr. Tasaduq Husain dated 3-5-1961 addressed to the appellant, (3) a letter from Mr. M. Faizul Jahl, Advocate, dated 30-12-1959, addressed to Haji Tayab Taar Muhammad occupant of another tenement of the same building purporting to be a notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, on behalf of Dr. Tasaduq Hussain, and (4) a copy of the letter addressed by the appellant dated 11-5-1961, to the Deputy Settlement Commissioner (Disposal), Karachi, purporting to be a reply to the letter of the latter (document No. 1 stated above) saying that the appellant had already paid the rent of the premises to the Custodian Department at Karachi, and that further rent he will start paying to the said transferee Dr. Tasaduq Husain.

4. Before considering the arguments of the learned counsel for the parties on the merits of this appeal, I would first dispose of the question whether the aforementioned request for additional evidence be granted. Mr. Abdullah Chandio, learned counsel for the appellant argued that the documents presently sought to be produced on record are very material to the issues arising in this appeal, in so far as, they lent strong support to the case of the appellant that there was genuine doubt entertained by him with regard to the title of the respondent, as the same premises were previously transferred to another person. Learned counsel argued that apart from the specific cases mentioned in Order XLI, rule 27 (1), C. P. C. the Court has ample power to receive additional evidence for any other substantial cause. He strongly relied upon the grounds made out in the affidavit of the appellant in support of the request for additional evidence, the relevant part of which may be quoted as under:

"(8) That the request for proof of transfer was in fact made in view of the above consideration which was present all along at the back of my mind but for reasons which can only be attributed to human nature and honest conduct, I did not mention on this specifically earlier as a reason for making a request. (9) That as luck would have it, it was only when I went to consult my present counsel that on his query to explain the reason for request in my letter for reply (Exh. 10) that all the circumstances leading to the request occurred to me. (10) That this fact was not suppressed by me deliberately and in fact I have forgotten all about it." In support of his argument, learned counsel placed reliance on the case of Ajibar Biswas and another v. Golam Ali Dajadar (P L D 1968 Dacca 546) and the case of Syed Jehan Zeb Shah and others v. Haji Abdul Rahman and others (P L D 1973 Posh. 19), I do not think that any of the above cases advances the argument of the learned counsel. In this connection, a rule was laid down by their Lord ships of the Supreme Court in the case of Messrs Muhammad Siddiq Muhammad Umar and others v. Australasia Bank Ltd. (P L D 1966 S C 684) wherein their Lordships observed, while interpreting the scope of Order XLI, rule 27, C. P. C. that the need for additional evidence must be felt by the Court itself after it has examined the evidence already on record and it has come to the conclusion that there is apparent, some inherent lacuna or defect which hinders the due administration of justice. In the Dacca case cited above also, the learned Judges observed that the power to adduce additional evidence may be exercised where clarification of any point is required in the interest of justice and further drastically restricted the scope of the power by saying that the same may be exercised cautiously and sparingly and only in exceptional cases. Similarly, in the Peshawar case cited by the learned coun sel learned Chief Justice of the Peshawar High Court, while making a pointed reference to the above-mentioned Supreme Court case and the case of Secretary, Government of West Pakistan v. Gulzar Muhammad (P L D 1969 SC 60) observed that the combined effect of the dictum in all these judgments is that while the Court had jurisdiction to take additional evidence in order to remove some inherent lacuna or defect which hinders due administration of justice, this discretion must be exercised with care so that the indifferent litigant is not allowed to fill up the lacunae in his case. Thus, it will be seen that authoritative judicial opinion is strongly against permitting an indolent or indifferent litigant from invoking the further indulgence of the Court to give him an opportunity to fill up gaps in his evidence. The policy underlined in this salutary rule of law is obviously to curtail litigation and give finality to the decisions and restrict the power of the appellate Court, which is merely re-hearing the case on the basis of materials already on record of the original Court, to only exceptional cases where either a document has been rejected unjustifiably by the trial Court or where the appellate Court requires the document to enable it to pronounce judgment. After giving my best consideration I have come to the conclusion that the reasons advanced in support of the request for additional evidence do not justify allowing of that request. No attempt was made to produce, what appears to be vital evidence in support of the appellants, case if duly proved, in the original Court. However, as argued by Mr. Mubarak Husain, learned counsel for the respondent, and rightly so that no mention of this evidence was made at any stage of the proceedings nor in the correspondence preceding the same. He, therefore, strongly doubted the genuineness of this document. It was his contention that the first document purporting to be notice from the Settlement Authorities to the appellant, intimating the alleged fact of transfer of the premises to Dr. Tassaduq Husain is, to say the least, a very strange and unusual document. In no case the Settlement Authorities ever took upon themselves to intimate the fact o transfer, which is the obligation of the transferee himself under the law. Besides, he has also referred to para. 7 of the affidavit filed by the appellant, categorically admitting that the alleged transfer in favour of Dr. Tassaduq Husain was stayed on the representation of persons occupying the various tenements of the building. Accordingly, it is contended that the document in question would not be material for the purpose of the decision of this case. Be that as it may, the fact remains that no reasonable ground has been advanced justifying the failure to produce or mention the existence of this document before the request for receiving additional evidence. I would, therefore, taking the dictum laid down by their Lordships of the Supreme Court as my guide, reject the request for additional evidence as it would amount to permitting the appellant to fill in the lacuna in his evidence which, but for his negligence or indifference, could) not have remained.

5. Now in support of the appeal the main contention of Mr. Abdullah Chandio was, that the appellant cannot be deemed to be a defaulter, as failure on the part of the respondent to disclose the title deed of the premises justified the non-payment of rent on the part of the appellant. In the alternative, learned counsel submitted that in the facts and circumstances of this case, the non payment of rent may be condoned and discretion ought to be exercised in favour of the appellant by not ordering his eviction. Mr. Abdullah Chandio candidly conceded that there was no direct authority in support of his argument, that the transferee was bound to satisfy the tenant in occupation of the premises by showing him the title deeds or the transfer documents in his favour. He, however, referred me to the case of Muhammad Musa v. Dilshad and another (P L D 1968 Lah. 252) and contended that the occupant is not put on enquiry as to the right of the transferee under the Settlement Law, which is for the transferee to establish before being entitled to receive rents. That was a case where the transferee of the building had demanded rent at a higher rate and not according to the latest assessment, which was not mentioned in the notice at all. The tenant had tendered rent at the rate on which he was paying to the Custodian. It was in this connection that the learned Judge in that case, came to the conclusion that the tenant had committed no default in the payment of rent, for, if the landlord does not mention the rate of rent at the time of transfer of land according to the latest assessment, then the tenant is not placed on enquiry to find out as to what the latest assessment is. He need only to pay or tender rent he was paying at the time of transfer. But from this, it does not follow that the tenant would be relieved of his statutory obligation to tender rent according to the prescribed rate, by merely disputing the title of the landlord. It was clearly the legal duty of the tenant by virtue of section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, which is the source of creation of statutory tenancy, to at once tender the rent due otherwise he would obviously lose the protection against eviction provided by the said provision of law. It is now well settled that the terminus a quo with regard to the commencement of the tenancy is the service of notice under section 30 referred to above, which ipso facto would give rise to rights and obligations of landlord and tenant inter se between the transferee and the occupant, subject to the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the West Pakistan Urban Rent Restriction Ordinance, 1959. It would be advantageous to produce relevant part of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958:

"(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other persons under the provision of this Act then notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately after transfer:

Provided that

(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority as the case may be, for other properties in the locality generally; and (b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due)." The plain reading of the above provision would clearly show that there is nothing in it to oblige the transferee landlord to satisfy the occupant of the building by affording him inspection of the title deeds. All that is necessary is, to intimate to the occupant the fact of transfer in respect of the building and by subsection (3) also demand rent therefore. I, therefore, find no force in the contention of the learned counsel for the appellant that the refusal of the respondent to supply the appellant with the copies of the title deeds furnished any justification for withholding the rents due.

6. The next question to consider is whether the discretion ought to have been exercised in favour of the appellant. The learned counsel contended that there were two circumstances in support of the appellant; firstly, that after the appellant demanded from the respondent to furnish him with the proof with regard to the title, the latter kept quiet and secondly that the respondent entertained mala fide intention to throw out the appellant from the premises right from the beginning as in his very first notice he levelled a false allegation of subletting. I do not find any force in the submissions of the learned counsel. Firstly, as I have already stated the transferee/landlord was not under any legal obligation to satisfy the tenant about his title and therefore this could not be a ground for condoning non-payment of rent. As regards the second argument also it was stated at the bar on behalf of the respondent that he was under a genuine impression that the appellant had sublet the premises as he was not personally occupying the premises. Be that as it may, discretion can be exercised in favour of tenant if default has been committed for reasons beyond his control and not when he consciously raises the dispute with regard to the title without any justification. Under the circumstances, I find nothing wrong with the order passed fogy eviction of the appellant in consequence of his admitted failure to pay rent.

7. For the foregoing reasons the appeal fails and is hereby dismissed with costs. S. A. H. Appeal dismissed.