1993 PLP 216 (SCMR)

SALEEM AKHTAR, J.‑‑‑The petitioner has filed this petition for leave to appeal against the judgment of the learned Judge in Chamber of the High Court of Sindh whereby the order dismissing the ejectment application by the learned Rent Controller was set aside and the case was remanded to the learned Controller to fully dilate upon the record and then to come to a finding as warranted by law. The effect of this order was that the case was remanded to the learned Controller for making decision on the basis of the evidence on record and no fresh evidence was to be recorded. The facts briefly are that the petitioner filed an ejectment case under the Cantonments Rent Restriction Act, 1963 on 29‑8‑1988 which was registered as RC No.98 of 1988. The petitioner had alleged default in payment of rent from December, 1987 to August, 1988. In this rent case Khawaja Masood Iqbal, respondent No.2 was cited as an opponent being proprietor of Swiss Bakery. Respondent No.2 filed a written statement and pleaded that he was not the proprietor of the business concern known as Swiss Bakery and the application is liable to be dismissed for non joinder of necessary party. He, however, pleaded further that rent had been tendered regularly, without naming the tenant and it was further stated that the petitioner deferred acceptance of rent from time to time on one pretext or the other. In view of the technical objection, the petitioner withdrew the ejectment application and filed another rent case, namely, RC No.134 of 1988 in which Swiss Bakery was cited as opponent. During evidence on preliminary issue regarding maintainability of the application it was disclosed that respondents Nos.2, 3 and 4 are the partners of Swiss Bakery. They were, therefore, joined as opponents. In the written statement it was pleaded that the rent was tendered in time regularly and was never allowed to be accumulated. The petitioner used to defer the acceptance and in view of cordial relations between the parties, his mala fide intention could not be suspected. The money order sent by the opponents was refused and, therefore, the rent was deposited in Court regularly. The Additional Rent Controller observed that the petitioner had been collecting the rent and deliberately created‑ground of default by not accepting the same and further that it was part of practice to collect rent for many months together, and therefore, no default had been committed. The plea of personal bona fide requirement was also rejected. The petitioner filed first rent appeal in which by the impugned judgment, the order of the learned Additional Controller was set aside and case was remanded for decision. While remanding the case, the learned Judge in Chamber thoroughly examined and analysed the evidence on record and made following observations: "With the assistance of Mr. Naraindas C. Modiani I have examined the pleas in defence as well as the evidence recorded in the case. In the written statement the principal defence was that the landlord had avoided to receive the rent on account of implicit excellent relations between the parties and subsequent money order having been refused the rent was deposited in the Misc. rent case. The two deponents who have deposed in favour of the respondents‑tenants do not seem to have averred that there were any particularly close relations between the landlord and the tenant so as to warrant an observations to the effect that `you are here and I am here, therefore, where is the hurry t o pay the rent'; words to which effect were incorporated in the written statement. Likewise, no money order whatever has been referred in the two affidavits of such deponents. On the contrary, reliance is placed on a payment of Rs.15,000 allegedly paid to the landlord by way of deposit, a plea which was not taken at all at the time the written statement was filed. In cross‑examination, it was admitted that no such payment was made to the present landlord. In such context, I have also examined the tenancy agreement of 1971 which does not disclose any payment of Pugri or of advance deposit to the previous landlord. Further, defence of the two deponents was that payments of rents were regularly made and like wsie payment for the period December, 1987 to August 1988 was also made though admittedly through M.R.C. No.118 of 1988 filed on 26‑10‑1988 when the previous rent case was pending. Mr. Naraindas C. Motiani also says that the findings of the learned Controller that the ‑landlord admitted that there was a practice of lump sum payment of rents is also incorrect because it was not based on the record. However, learned counsel concedes that neither the landlord nor the tenant produced any receipts/receipt book with the counterfoils in support of their respective contentions. In the foregoing circumstances, it appears that the learned Controller has not properly examined the record before reaching his conclusion resulting in the dismissal of the rent case. It would be inappropriate to exercise appellate jurisdiction before the learned Controller is provided with an opportunity to fully dilate upon the record and then come to such a finding, as be warranted by law. Accordingly I set aside the impugned order and remand the case to the learned Controller for decision according to law. Appeal allowed." When the petition came up for hearing, we issued notice to the respondents and Mr. Tariq Mahmood learned Advocate Supreme Court and Mr. MA.I. Qarni, Advocate‑on‑Record appeared on their behalf. Mr. Motiani, the learned Advocate Supreme Court for the petitioner contended that as the entire evidence was on record which was sufficient to enable the Court to pronounce the judgment it was not necessary to remand the case as the appellate Court could have determined the issue itself. We have heard the arguments of the learned counsel for the parties on the merits of the case as well. There is no dispute that the entire evidence on the issue involved in the ejectment case was on record and even on remand there is no order for recording additional evidence in the matter. The learned Additional Controller has been directed to reassess the evidence and give his findings again. This clearly shows that the evidence on record is sufficient to give a finding. In these circumstances the remand by the Appellate Court was not proper. Reference can be made to Pramatha Nath Chowdhry and 17 others v. Kamir Mondal and others P L D 1965 SC 434 where similar question was considered with the following observations:‑‑ "It remains now to examine one other argument advanced on behalf of the appellant, namely, that in any event the learned Judges should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy in this case. We are unable to accept this contention. A remand should not be lightly ordered if the evidence on the record is sufficient for the Appellate Court to decide the question itself. There can be no bar to the Court doing so. Having examined the reasons given by the learned Judges of the High Court for deciding this question we are unable to say that the evidence was not so sufficient. There was adequate evidence on the record upon which the decision of the learned Judges in the High Court could have been based. We see no reason, therefore, to interfere only on this ground." In Fateh Ali v. Pir Muhammad and another 1975 S C M R 221, a pre emption suit was filed which. was dismissed. In appeal the Additional District Judge without deciding other issues accepted it on the ground that the transaction of exchange was hit by Martial Law Regulation No.64. The respondent filed second appeal before the High Court and the learned Judge reversed the findings of the lower Appellate Court and instead of remanding the case to Additional District Judge who had not dealt with other issues proceeded himself to dispose them of under Order XLI, Rule 24 read with section 103, C.P.C. and affirmed the findings of the trial Court. The petitioner filed petition for special leave to appeal contending that by disposing of the case instead of remanding it, the petitioner had been deprived of valuable right of appeal. While refusing leave it was observed that; "the learned Judge of the High Court was under no obligation to make an order of remand and was fully competent to dispose of the issue left undetermined by the first Appellate Court. In Sher Muhammad and others v. Jamadar Ghulam Ghaus 1983 SCMR 133 the question for consideration` was whether in a first appeal against an order of remand made under Rule 23‑A of Order XLI, Civil Procedure Code by the District Judge, the High Court could go into the merits of the case and finally decide it restoring the findings on all the issues as recorded by the trial Court. While relying on Pramatha Nath Chowdhury v. Kamir Mondal it was observed as follows:‑‑ "It follows from the words of the law and their further exposition by this Court that power to decide the case finally untrammelled by the grounds taken up in the judgment under appeal is possessed the only limitation on the power being that the evidence on record must be sufficient to enable the Appellate Court to pronounce judgment. In this case, issues had been framed in the presence of the parties. They had led evidence on those issues to their satisfaction. The evidence of both the parties had been fully considered and a decision given by the trial Court. There was, therefore, complete satisfaction of the conditions prescribed for the exercise of power by the Appellate Court." Therefore, the well‑settled view is that if the entire evidence on record is available which is sufficient for the Appellate Court to pronounce judgment and decide the issue, it is not necessary to remand the case for trial to the lower Court particularly when no evidence is to be recorded. Although these principles have been enunciated on the basis of the provisions of C.P.C. particularly Order XLI, Rules 23‑A and 24, they can be pressed in service in the present case. Section 23(1) of the Act provides for an appeal to the High Court and subsection (3) further provides that after perusal of record of the case and giving the parties an opportunity of being heard and after making necessary enquiry as it may deem fit, the Court may pass order which shall be final. Therefore, under this provision, the High Court has also been given power to decide the case in the manner it may deem fit. Similar provision has been made in section 21 of Sindh Rented Premises Ordinance and Urban Rent Restriction Ordinance` as well. Therefore, the principles enunciated above though under the provision of C.P.C. lay down the rules of procedure for proper administration of justice and can, therefore, be applied by the High Court in appeals ‑filed under the Rent Laws. Coming to the conclusion that the order of remand cannot be sustained mainly because the entire evidence on record was sufficient to decide the issue involved in the case we converted the petition in appeal and have heard the learned counsel of the parties as well. Mr. Tariq Mahmood, the learned counsel for the respondent contended that as the rent for the period December 1987 to October 1988 was deposited in Court on 29‑10‑1988 there was no default as provided by section 17 of the Cantonments Rent Restriction Act. The submission made by the learned counsel presupposes that the respondent had not paid the rent from December 1987 to October 1988. The question whether there was valid ground for withholding the payment of rent for such a long period has been considered by the learned Judge in Chamber and we agree with the scrutiny and analysis of the evidence made by him. The learned counsel contended that there was a practice of paying accumulated rent but such practice has not been proved. Further, plea that acceptance of rent was put off by the landlord on one pretext or the other is not substantiated by the evidence on record. We now turn to the main contention of the learned counsel for the respondent that in view of the deposit of rent in Court he cannot be held to have defaulted. The learned counsel mainly relied on the explanation added to subsection (2) of section 17, the relevant part of which is reproduced as follows:‑‑ "

17. Eviction of tenant.‑‑‑(1) .............................................................................. (2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that:‑‑ (i) the tenant has not paid or, tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or (ii) ................................................................. (a) .................................................................. (b) .................................................................. (iii) ................................................................ (iv) (v) .................................................................. (vi) ................................................................. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. Explanation ‑‑For the purpose of clause (i) the rent remitted by money order to the landlord or, in case landlord refuses to accept the rent, deposit in the office of the Controller having jurisdiction in the area where the building is situate, shall be deemed to have been duly tendered. (3) .................................................................. (4) .................................................................. (a) .................................................................. (i) .................................................................. (ii) ................................................................. (iii) ................................................................. (b) .................................................................. (i) .................................................................. (ii) ................................................................. (5) .................................................................. (6) .................................................................. (7) .................................................................. (8) .................................................................. (9) .................................................................. (10) ................................................................. (11) ................................................................. Section 17(2)(i), fixes the time when a tenant is required to pay or tender the rent to the landlord. By virtue of explanation, remission of rent by money order or in case of refusal by the landlord to accept the rent, deposit made by the tenant in the office of the Controller having jurisdiction in the area, shall be treated to have been tendered. Therefore, if a landlord refuses to accept the rent it is open to a tenant to deposit it in the office of the Controller having jurisdiction and rent so deposited shall be treated as proper tender of rent to the landlord. The explanation is to be read in conjunction with section 17(2)(i), which stipulates the time for payment or tender of rent. The deposit of amount should be in the same manner as rent is required to be paid or tendered. The tenant cannot default in payment of rent for a long period and then deposit the same in court and claim immunity from default. Such deposit will not wipe out the default which may have been committed before depositing the rent. It will, however, be open to the tenant to explain why the rent could not be tendered earlier. If he proves that rent was tendered in time as required by law and it was illegally refused by the landlord then the tenant can claim benefit of such deposit. The contention raised by the learned counsel for the respondents has no force. The learned counsel contended that the first application for ejectment was filed on the same ground and as it was withdrawn, the petitioner has waived his right. The contention is misconceived. The application was withdrawn on technical plea raised by respondent No.2 and according to Mr. Motiani, application for withdrawal was filed reserving the right to file a fresh ejectment application. We, therefore, allow the appeal, set aside the order of High Court and the Additional Controller, grant the ejectment application on ground of default in payment of rent. As the respondents are carrying on business in the disputed premises, by consent, they are allowed one year time from today to hand over vacant possession to the petitioner/appellant. The respondents shall continue to deposit rent regularly and in case any default in deposit of rent is committed the appellant/petitioner will have the right to file execution application even before the expiry of one year. If the respondents fail to hand over vacant possession of the disputed premises to the appellant as ordered, the learned Controller shall issue writ of ejectment without notice to the respondents. AA./A‑972/S Appeal allowed.