P L D 1991 Supreme Court 317 (PLP)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the order dated 25‑8‑1975 passed by a learned Single Judge of the High Court of Sindh in Second Appeal No.124 of 1972, allowing the respondent's application under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, striking off the appellant's defence for non‑compliance of the High Court's order dated 14‑3‑1974 passed in the aforesaid Second Appeal upon respondent's application under section 13(6) of the late Ordinance, directing him to deposit the current rent in the High Court according to law and the past arrears amounting to Rs.53,900 in five instalments i.e. Rs.13,900 were to be deposited not later than the end of the aforesaid month of March, 1974, and the balance of Rs. 40,000 was to be deposited at the end of each month in instalments of Rs.10,000 per month. Leave to appeal was granted to consider the following questions:‑‑

(i) that the jurisdiction to pass an order under section 13(6) of the Ordinance arises only if the relationship of landlord and tenant exists but in the context of the plea of the petitioner that the ejectment application was not maintainable as no such relationship existed and the order of remand by the first appellate Court against which the second appeal was pending, no order for the payment of arrears of rent and current rent could have been passed under section 13(6) of the Ordinance; (ii) that the respondent not having objected before the learned Single Judge for striking off the defence for a period of 7 months, she must be taken to have waived her objection to the delay, if any, in the deposit of arrears of rent and the current rent; and lastly, (iii) that the delay, if any, was not wilful in view of the litigation pending between the parties in the Supreme Court.

2. The brief facts are that the respondent is the owner of a plot of land bearing No.440/2/1, measuring 4,000 sq. yards, situated in Garden West Quarters, Karachi, hereinafter referred to as the plot. The plot was leased out' under a lease‑deed dated 30‑4‑1956 by the respondent to M/s. Imam & Imam, a registered partnership firm having the appellant and another person as its partners, for a period of 40 years at the annual rental of Rs. 12,000, renewable for such further period as might be mutually agreed upon, for building of a cinema with the option to the aforesaid partnership firm to purchase the plot, on the terms and conditions contained therein. It is the case of the appellant that, the other partner having retired from the partnership he continued to hold the plot and constructed a cinema thereon known as Novelty Cinema of the value of about Rs.20,00,

000. Be that as it may, it seems that there was litigation between the parties inasmuch as Suit No.32 of 1961 was filed in the erstwhile High Court of Sindh and Balochistan, which was compromised by the parties on 16‑5‑1963, whereby it was provided that the aforesid lease‑deed dated 30‑4‑1956 was terminated and a fresh agreement with the appellant was to be entered into. Pursuant to the aforesaid compromise, the respondent executed a fresh lease agreement dated 29‑3‑1968, hereinafter referred to as the agreement, in favour of the appellant for a period of 25 years at an annual rental of Rs. 13,200 with the option to the appellant to purchase the plot within the above period of 25 years on the conditions contained therein, namely, clause (h) of the agreement. It may be pertinent to reproduce above clause (h), which reads as follows:‑‑

"(h) That the Lessee will be entitled to buy the demised premises in question within one year from 1st day of April, 1968, at a fixed price of Rs.60 (Rupees sixty only) per sq. yard. The Lessor shall be bound to sell to the Lessee this demised plot at the aforementioned price and in case the Lessee dose not exercise the right to buy this plot within one year, the Lessor shall be entitled to increase at the rate of 2% per annum or the price already agreed upon that is to say upon the original price of Rs.60 (Rupees sixty only) per sq. yard. The option to purchase may thus be exercised at any time during the period of tenancy subject to the aforesaid increase. The Lessee will also be entitled to request the Lessor in writing for the sale of this plot in the name of any other person as his nominee on the above terms and conditions. The Lessee, however, shall be allowed to sell his structure and tenancy or lease rights to any purchaser provided the purchaser is prepared to enter into a lease or agreement of tenancy with the Lessor on the same terms and conditions as of this Lease, such permission will be given by the Lessor only on condition that there is no arrears of rent of the demised premises. (That the Lessor shall not mortgage, assign, sell or in any other way dispose of the land without making full provision or effective discharge of agreement reached by this deed between the Lessor and the lessee and all transactions in respect of this land made by the Lessor shall be subject to the rights and liabilities created and developed by this Lease)."

3. It appears that the respondent filed Rent Case No.831 of 1970 in April 1970, in the Court of VIth Civil Judge 1st Class and Rent Controller at Karachi against the appellant for ejectment on the ground of default for the period from 1‑4‑1969 to 31‑3‑1970 at the rate of Rs.1,100 per month. Upon service of the notice, the appellant riled a written statement on or about 21‑8‑1970 in which in para 2, the following averment was made:‑‑

"

2. That the contents of Para 2 of the application are not admitted as framed. The rent was paid regularly as per mutual arrangement of the parties. The applicant received rent on 14‑12‑1969 as per receipt, a photo copy of which is enclosed herewith. Thereafter as usual she was no available in Karachi and nobody could be contacted for payment of rent on her behalf. The opponent has always been ready and willing to pay rent due from him." It further seems that upon an application riled by the respondent under section 13(6) of the late Ordinance, the learned Rent Controller passed a tentative rent order on 21‑9‑1970 against the appellant. Since the above tentative rent order was not complied with by the appellant upon the respondent's application under section 13(6) of the late Ordinance, the learned Rent Controller by his order dated 17‑5‑1971 ordered the striking off the appellant's defence. Against the above order, the appellant riled Rent Appeal No.168 of 1971, which was allowed by the learned 1st Additional District Judge, Karachi, by a judgment dated 16‑2‑1971 remanding the case to the Rent Controller, the operative portion of the judgment reads as follows:‑‑

I am of the opinion that it is necessary for the learned Rent Controller to frame an issue regarding the maintainability of the Rent Application and to decide it before passing the order for deposit of rent The R & P be sent back to the learned Rent Controller for further proceedings in the light of the above observations in the circumstances of the case the parties to bear their own costs." Thereupon, the respondent filed aforesaid Second Appeal in the High Court. It further seems that while the above appeal was pending adjudication, the appellant filed Suit No.272 of 1972 in the erstwhile High Court of Sindh and Balochistan on 4‑9‑1972 against the respondent for specific performance of the sale agreement contained in the agreement. It may further be stated that the respondent had also riled Civil Miscellaneous Application No.1604 of 1972 under section 13(6) of the late Ordinance in the above Second Appeal praying therein that the appellant be directed to deposit the arrears of rent. Thereupon, an order dated 13‑2‑1973 was passed by the High Court observing that the disposal of the above application would virtually dispose of the main case and, therefore, it was ordered that the said application may be considered alongwith the main case. It also seems that after that, the appellant filed Civil Miscellaneous Application No.1302 of 1973 on 28‑5‑1973, praying therein that the aforesaid Second Appeal be heard after the disposal of the aforementioned suit for specific performance riled by the appellant, whereas the respondent riled Civil Miscellaneous Application No.346 of 1974 on 5‑3‑1974 inter alia with the prayer that the above Second Appeal and the respondent's aforesaid application under section 13(6) of the late Ordinance, be heard at an early date. After hearing the learned counsel for the parties, the learned Single Judge directed the parties to give an agreed figure of the rent due upto 28‑2‑1974. However, it seems that the tentative rent order was passed on 14‑3‑1974, which reads as follows:‑‑

"Mr. Dastagir has produced 10 receipts and his submission is that the balance due upto 28th February, 1974, would‑be Rs. 53,900 and not Rs.58,300 as claimed by Mr. Khalilur Rehman. It is not necessary to go into this controversy because this is an order under sub‑section (6) of section

13. Accordingly, without prejudice to the contentions of the parties, I direct as follows:‑

(i) The respondent shall deposit the current rent in this Court according to law. (ii) The past arrears of Rs.53,900 shall be deposited in this Court as follows:‑‑ (a) Rs.13,900 to be deposited not later than the end of this month and the balance of Rs. 40,000 to be deposited at the end of each month in instalments of Rs. 10,000 per month. (b) The appellant shall be free to draw out the rents deposited. In view of this order, I allow the application of the respondent that the appeal be heard in due course and not early.

4. Against the above tentative rent order passed by the learned Single Judge, the appellant filed Civil Petition for Special Leave to Appeal No.45 of 1974 in this Court and obtained a stay on 9‑4‑1974 against the above learned Single Judge's tentative rent order upon furnishing of a bank guarantee, which was furnished on 6‑5‑1974. However, the above petition for leave was dismissed on 4‑9‑1974 and thereby the stay order was recalled. It appears that the appellant filed a review petition which was also dismissed on 6‑3‑1975. After that the respondent filed an application under section 13(6) of the late Ordinance on or about 9‑4‑1975 which was allowed by the learned Single Judge by his order dated 25‑8‑1975 under appeal. Thereupon, the appellant filed the above petition for leave, which was granted to consider the question quoted here in above.

5. It may be observed that before dealing with the contentions of the learned counsel for the parties, it may be pertinent to mention that while the above appeal was pending for adjudication, a learned Single Judge of the High Court of Sindh decreed the appellant's aforementioned Suit No.272 of 1972 for specific performance of the sale agreement on 27‑7‑1989, pursuant whereof a conveyance deed has been executed on 2‑1‑1990 by Mr. Abdul Majeed, Advocate as the Commissioner appointed in the suit on behalf of the respondent, and has been registered with the Sub‑Registrar on 2‑1‑1990. It may also be stated that against the above judgment and decree, the respondent has filed a High Court appeal, whereas the appellant has filed cross‑objections in the appeal on the question of quantum of sale price, which are pending for adjudication in the High Court.

6. In support of the above appeal, Mr. Ali Ahmed Fazeel, learned Senior Advocate Supreme Court appearing for the appellant, has vehemently urged that no tentative rent order could have been passed under section 13(6) of the late Ordinance by the learned Single Judge without first determining the question of relationship of that landlord and tenant irrespective of the fact, whether such relationship has been denied or not by the tenant, particularly in view of the fact that the first Appellate Court had remanded the case to the Rent Controller on a question which involved determination of relationship. To reinforce the above submission, he has relied upon the following cases:‑-- (i) Muhammad Ismail v. Israr Ahmed (PLD 1961 (W.P.) Lah. 601 at pages 604 and 609; (ii) Akhtar Ali Parvez v. Altafur Rehman (PLD 1963 (W.P.) Lah. 390 at page 403); (iii) Syed Ahsan Ali v. Jaffar Ali and 4 others (P L D 1964 (W.P.) Kar. 418 at pages 419 and 420); (iv) Abdul Ghafoor v. Ahmad Kunhi (P L D 1969 S C 424) at pages 427 and 429); (v) Mehdi Hassan v. Ghulam Muhammad, etc. (PLD 1964 Lah. 648 at page 651); (vi) Muhammad Abdullah v. Abdul Jabbar (PLD 1967 Lah. 1000); and (vii) Habibullah v. Bawa Vasdevgir Chelo Shambhugir (PLD 1968 Kar. 869 at page 874).

7. Suffice to observe that none of the above‑cited cases has laid down the above broad proposition of law which has been canvassed by Mr. Ali Ahmed Fazeel at the Bar. The question, whether the Rent Controller before passing a tentative rent order should decide the question of relationship, depends on the fact whether the tenant has denied the relationship. If there is no such denial, in that event it is not incumbent under section 13(6) of the late Ordinance to determine the relationship before passing a tentative rent order. We are mindful of the fact that the strict rules of pleadings provided for in the C.P.C. for a civil suit cannot be imported in a proceeding under the late Ordinance. However, even in a rent proceeding a party is required to plead the basic points which go to the root of the matter. In an ejectment case under section 13 if a tenant wants to deny the relationship as a defence, he is required to raise such a plea so that it may be adjudicated upon at the earliest opportunity. In the instant case the appellant had not raised any such plea in his written statement which was filed by him before the Rent Controller. On the contrary, in the above‑quoted para 2 of the written statement the factum of payment of rent regularly was pleaded and it was also' pleaded that after 14‑12‑1969 no rent was paid as the respondent was not available in Karachi and nobody could be contacted for payment of rent on her behalf. We may also observe that section 13(6) of the late Ordinance does not provide that before passing a tentative rent order, the Rent Controller should on his own determine the question of relationship even in a case in which a tenant admits the facturm' of relationship. We may also observe that the question, whether the first Appellate Court was justified in the instant case to remand the case to the Rent Controller on the question referred to in the above‑quoted portion of the judgment of the first Appellate Court, is an issue in the second appeal pending in the High Court for adjudication. We are not required to go into the above question nor any observation contained herein is to be construed against any of the parties in the above second appeal.

8. The question, whether the learned Single Judge in a second appeal was competent to have passed an order under section 13(6) of the late Ordinance, in our view, stands concluded in the present case in view of the order dated 4‑9‑1974 passed by this Court in aforementioned petition for special leave to appeal No. 45 of 1974 and the order dated 6‑3‑1975 passed in Civil Review Petition No.K‑5 of 1974 riled by the appellant against the aforesaid order dated 4‑9‑1974. It will suffice to quote the following observation from the latter order:‑‑

"Learned counsel further argued that on its wording, section 13(6) empowers only the Rent Controller, and that the High Court was not competent to order the deposit of arrears and the current rent. This point was not canvassed earlier. That apart, the argument is devoid of substance. In the absence of any qualifying provision in section 15 of the Ordinance, the power of the Appellate Authority and the High Court must be considered co‑extensive with that of the Rent Controller." Mr. Khalilur Rehman, learned A.O.R. appearing for the respondent, has placed reliance on the case of Messrs Crescent Publicity Service v. S.M. Younus and others(1980 SCMR 779), which is in line with the above‑quoted observation from the above order.

9. It was then contended by Mr. Ali Ahmad Fazeel that the above tentative rent order passed by the learned Single Judge was defective inasmuch as it directed deposit of rent monthly instead of yearly which was provided in the agreement inter alia in clauses 1 and 1(b). Reliance was placed by him on the case of Shuja‑ud‑Din Qureshi v. Mst. Husan Ara Begum etc. (P L D 1964 (W. P.) Lah. 292) in which a learned Single Judge of the erstwhile High Court of West Pakistan inter alia observed as follows:‑‑-- .All that the Rent Controller has to do in this regard is to fix a date by which the arrears are to be deposited, by the tenant. As regards the future rent the subsection contains a statutory provision that the monthly rent due is to be deposited before the 5th day of each month, but there is no such direction with regard to yearly rent. It only means, therefore, that this statutory condition regarding the deposit of the monthly rent before the 5th day of each month shall not apply in a case in which the rent falls due annually. This is,‑however, not to say that the provisions of subsection (6) are rendered inoperative and ineffective in the case of yearly tenancies, as in such cases the future rent will obviously have to be paid in accordance with the terms of the tenancy.

10. Apart from the fact that it is not open to the appellant to urge the above submission in view of the above two orders passed by this Court in the petition for leave filed against the above tentative rent order of the learned Single Judge and in the aforesaid review petition, even otherwise clause 1(a) of the agreement speaks of monthly rent at the rate of Rs. 1,

100. Furthermore, in case of any inconsistency between the terms of the agreement and subsection (6) of Section 13 of the late Ordinance, the latter is to prevail.

11. Then reliance was placed by Mr. Ali Ahmed Fazeel on section 53‑A of the Transfer of Property Act. It was urged by him that the agreement was not simpliciter a lease agreement but it provided option to the appellant to purchase and, therefore, the possession of the appellant was in fact in pursuance of the above sale agreement. In furtherance of his above submission, he has relied upon the case of Kalimuddin Ansari v. Director, Excise and Taxation, Karachi, and another PLD 1971 SC 114, whereas Mr.Khalilur Rehman, learned A.O.R. appearing for the respondent, has placed reliance on the case of Rashid Ahmad v. Messrs Friends Match Works PLD 1989 SC 503 and the case of Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575, in order to contend that unless the liability to pay rent ceases the relationship between the parties remains as that of landlord and tenant. We would not like to make any definite observation in respect of the above submission of the learned counsel for the parties, as the appellant's suit for specific performance has already been decreed by a learned Single Judge of the High Court and now the matter is pending in an' Intra Court Appeal before the High Court. Any observation on the above contention may prejudice any of the parties. Since the aforesaid order of passing of tentative rent has been upheld by this Court through .the aforesaid orders dated 4‑9‑1974 and 6‑3‑1975, the default of the non‑compliance would entail striking off the defence in terms of section 13(6) of the late Ordinance. Mr. Khalilur Rehman, in this regard, has rightly relied upon the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD '1967 SC 530) in which it has been held that in the, absence of any reason beyond the control of a tenant, non‑compliance of a tentative rent order will entail striking off defence. In the present case we do not rind any reason which can be said was beyond the control of the appellant and hence the order of striking off defence was in consonance with the above judgment of this Court.

12. It was also contended by Mr. Ali Ahmed Fazeel that since the agreement does not provide any right of re‑entry to the respondent on the ground of any breach of the terms of the agreement on the part of the appellant, on the contrary, clause, 3 of it provides the remedy by way of payment of further amount, no ejectment proceedings could have been filed in view of Section ill of the Transfer of Property Act, which provides the grounds for determination of lease, clause (g) of which deals with the forfeiture of lease on the ground of breach of an express condition and provides the right of re‑entry to the lessor. Mr. Fazeel in support of his above submission, has relied upon the following cases:‑‑-- (i) Bishnupuriya Choudhurany v. Panchkari Das and others AIR 1954 Cal. 541); (ii) Jagdeo Singh v. Ram Naresh Singh and another AIR 1935 Oudh 217; (iii) Bhagwan Das and another v. M. Ghularn Muhammad AIR 1935 Lah.863; and (iv) Allah Ditta v. Mst. Farz Bibi and Others AIR 1914 Lah. 472

13. In our view, the above contention is devoid of any force. Admittedly the land in question falls within the definition of the 'rented land' given in the late Ordinance as it was to be used for commercial purpose and, therefore, the provisions of the Ordinance were applicable. In this view of the matter, in case of any inconsistency between the provisions of the Transfer of Property Act and the provisions of the late Ordinance, the latter being a special Ordinance, is to prevail.

14. It was then contended by Mr. Ali Ahmed Fazeel that the agreement is to be construed as a whole and if it will be construed as such, it would show that it was a sale agreement. Reliance was placed by him on the following cases which deal with the rule of interpretation of documents and laid down that the documents are to be construed as a whole:‑‑

(i) Muhammad Hussain v. Habeeb Wali Muhammad and others PLD 1977 Kar. 1031 at page 1034; (ii) Syed Jamal‑ud‑Din v. Syed Mobashar Hussain Shah PLD 1976 Uh. 187; (iii) Safiuddin Kazi v. Moslem Ali Howladar and others PLD 1960 Dacca 67 at page 682).

15. We have already observed herein above that we would not like to make any observation on the question, whether the agreement constituted simpliciter sale agreement or a lease agreement simpliciter and whether the appellant was entitled to seek specific performance of the sale agreement, as the same, is the subject‑matter of the Intra‑Court Appeal pending before the High Court an secondly, the above point is not relevant for the purpose of deciding whether the judgment under appeal is in accordance with law.

16. It was then contended that after the vacation of the stay order by the Supreme Court upon dismissal of the appellant's petition for leave against the tentative rent order, the appellant was required to deposit the rent within reasonable time as the Supreme Court had not specified any period for compliance of the tentative rent order and that deposit was made within 5 days of the dismissal of review petition. Reliance was placed by him on the case of Syed Ghulam Shah Bukhari v. Muhammad Saeed Akhtar (1972 SCMR 428 relevant at page 429). On the other hand, Mr. Khalilur Rehman has contended that upon the dismissal of the appellant's petition for leave by this Court on 4‑9‑1974,, the tentative rent order revived and, therefore, the appellant was required to comply with the same within reasonable time which was not .done, particularly in view of the fact that the appellant had not obtained any stay order in the review petition which was riled by the appellant and which was eventually dismissed on 6‑3‑1975.

17. It seems that as per terms of the above tentative rent order, the appellant inter alia was required to pay a sum of Rs.40,000 in four monthly installments, the first installment was to be paid in the month of April, 1974. It is, therefore, evident that the above entire amount of Rs.40,000 had become due and payable by the end of, July, 1.974, whereas the appellant made the deposit of the above amount as follows (please see at page 102 of the paper book):‑‑

Receipt No.305 dated 30‑9‑1974 Rs.10,

000. Receipt No.424 dated 31‑10‑1974 Rs.10,

000. Receipt No.533 dated 30‑11‑1974 Rs.10,

000. Receipt No.631 dated 28‑12‑1974 Rs.10,000.

18. It is also an admitted position that the current rent for the months of March, 1974, to July, 1974, was deposited on 12‑3‑1975. It is, therefore, obvious that it cannot be concluded that the appellant had deposited the above arrears and the current rent within reasonable time from 4‑9‑1974, when his petition for leave against the tentative rent order was dismissed and the injunction was withdrawn. However, it was urged by Mr. Ali Ahmad Fazeel that since the bank guarantee furnished by the appellant to the Court remained intact till 13‑3‑1975, the above alleged delay is of no consequence. We are inclined to hold that upon the dismissal of the appellant's aforesaid petition for leave and vacation of the stay order on 4‑9‑1974, the appellant was obliged to deposit the arrears of rent as well as the current rent within reasonable time notwithstanding that he had not applied for the discharge of the bank guarantee. Since he had not done so, the learned Single Judge was justified in passing the order of striking off the appellant's defence in terms of section 13(6) of the late Ordinance.

19. Then, it was last contended that as the stay was vacated on 4‑9‑1974 whereas the respondent the respondent had riled her application for striking off defence before the learned Single Judge on 9‑4‑1975, there was waiver on the part of the respondent. Reliance was placed by him on the following cases:‑‑ (i) Syed Masood Hussain and others v. Muhammad Saeed Khan and others PLD 1965 Lah. 11 at pages 16 and 17); and (ii) Dr.M.Fazil Zahir and others v. Mst. Beguin Jan and others PLD 1966 Lah.53 at page

65. Mr. Fazeel has candidly also invited our attention to the case of Mst. Bachi Bai v. Ghulain Abbas PLD 1972 Kar. 278 at page 283, in which a contrary view was taken by the erstwhile High Court of Sindh and Balochistan.

20. In our view, the question whether there was any waiver on the part of the respondent, was a mixed question of fact and law. The appellant should have raised this plea before the learned Single Judge, which he had not done. There is J nothing on record to indicate as to when the respondent discovered the alleged default on the part of the appellant. Furthermore, the matter remained under litigation in this Court till the dismissal of the appellant's aforesaid review petition on 6‑3‑1975, whereas the application for striking off defence was filed on 9‑4‑1975. On the basis of the above facts, in our view, it cannot be urged that there was any waiver on the part of the respondent.

21. Before concluding the above judgment, we may observe that since the appellant's suit for specific performance has been decreed by a learned Single Judge of the High Court and a sale‑deed in his favour has already been executed and registered by the Commissioner on behalf of the respondent appointed by the Court. The above ejectment order cannot be executed till the time the above decree for specific performance and the sale‑deed are set aside by a competent Court finally. We would, therefore, dismiss the above appeal with the above observation, but there will be no order as to costs. M.B.A/M‑1445/S Appeal dismissed.