1995 PLP 155 (MLD)

Mr. Anwar Zaheer Jamali learned counsel for the appellant submitted that the learned Rent Controller took erroneous view that the ejectment application was not maintainable, as appellant Saeed Ahmed Khan, after attaining majority during the pendency of the ejectment application, did not move an application, under Order 32, rule 12, C.P.C. to the effect that he had attained majority and would peruse ejectment application himself. It would be advantageous to produce Order 32, Rule 12, C.P.C. which inter alia provides as under: ‑‑‑ "Order 32 Rule

12. Course to be followed by minor plaintiff or applicant on attaining majority.‑‑‑A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Whether he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name ............................................................................................... Mr. Anwar Zaheer Jamali contended that it has been held by superior Courts that the non‑compliance of the provisions of Order 32, Rule 12, C.P.C. would be fatal only in those cases where the interest of the minor was not fully protected and prejudice was caused to the interest of minor as result of such non‑compliance: Mr. Jamali submitted that the present ejectment application was moved by appellant Saeed Ahmed Khan through his real father Dr. NA.G. Khan as his next friend and guardian ad litem. Mr. Jamali pointed out that aforesaid Dr. NA.G. Khan had been acting as landlord for all intents and purposes. As such no harm or prejudice was caused to the interest of appellant Saeed Ahmed Khan as the same was being fully protected by his father Dr. NA.G. Khan. As such according to Mr. Jamali there was no necessity for appellant Saeed Ahmed Khan to move an application under Order 32, Rule 12, C.P.C. after attaining majority during the pendency of ejectment application. Reliance is placed on PLD 1979 SC 30 Mst. Afzal Begum and others v. 1'.M.CA., Lahore, whereby the same view has been expressed. On the other hand Mr. Khanzada learned counsel for the respondent tried to substantiate that the non‑observance of the provisions of Order 32, Rule 12, C.P.C. was fatal to the present ejectment application. He placed reliance on 1985 CLC 130; PLD 1967 Kar. 424;1982 SCMR 570 and 1983 CLC 1221. I find much force in the contention of Mr. Jamali. The authorities quoted by Mr. Khanzada are not attracted to the present case. Admittedly appellant Saeed Ahmed Khan is the real son of Dr. NA.G. Khan, who had been looking after the interest of his son since the time when the bungalow in dispute was originally rented out to respondent No.1 Dr. NA.G. Khan has also been receiving throughout the rent of the disputed bungalow from respondent No.1. As such for all intents and purposes, Dr. NA.G. Khan is to be treated as "landlord" of the property in dispute. Furthermore the provisions of Order 32, Rule 12, C.P.C. do not appear to be mandatory in nature. It is nowhere provided that the non‑compliance of the provisions of Order 32, Rule 12, C.P.C. would be fatal, and would lead to the dismissal of the suit as not maintainable. Accordingly non‑compliance of the provisions of Order 32, Rule 12, C.P.C., had no adverse effect on the maintainability of the ejectment application. The learned trial Court has also observed that since terms Nos.10 and 11 of the rent agreement Exh. 15 were in violation of the Contract Act, and the rent agreement Exh. 15 was an unregistered document, hence the rent application was not maintainable. Mr. Jamali learned counsel for the appellant submitted that in the present case the relationship of landlord and tenant has already been admitted by the respondents. As such even if the rent agreement is discarded, the rent application could not be disposed of as not maintainable. He placed reliance on 1986 CLC 1613 Mst. Fatima v. Mst. Hanifa which lays down as under: ‑‑‑ "Section 5 provides that the agreement of tenancy shall be attested by signing and sealing with the seal of the Controller within whose jurisdiction the premises is situated or any Civil Judge or any Ist Class Magistrate. Subsection (2) provides that the relationship of landlord and tenant can be proved by producing a certified copy of a registered agreement or the original of an agreement not compulsorily registrable duly attested in terms of section 5(1). Section 5 or any other provision of the Ordinance does not provide that if the agreement of tenancy is not in accordance with section 5 it will be a nullity in law and will not be accepted as a proof of relationship of landlord and tenant. If the intention of the legislature would have been to nullify all tenancy agreements which are not in conformity with the provisions of section 5 then such a provision would have been provided in the Ordinance. The absence of any penalty for non-compliance with section 5 of the Ordinance makes it directory and not mandatory. The use of the word "shall" does not make the provision of section 5 mandatory. While interpreting a provision of law the entire scope of the statute and other provisions have also to be taken into consideration." In view of the abovementioned authority there remains no doubt that the provisions of section 5 of the Rented Premises Ordinance are not mandatory, but are directory in nature. Furthermore since there is no dispute about "landlord" and tenant ship" in the present case, hence the other conditions mentioned in the rent agreement which are against the provisions of Contract Act are immaterial, as the ejectment is sought only on two grounds of default in payment of rent and damage to the property in dispute. Accordingly the learned Rent Controller erred in holding that the present ejectment application was not maintainable. This issue is decided in favour of the appellant. ISSUE N0.2: Mr. Jamali submitted that admittedly respondent No.l committed default in payment of rent from the month of June, 1984 to the month of October, 1984. He further submitted that the ejectment application was filed in the month of December, 1984. He further submitted that besides the aforesaid default in payment of rent, respondent No.1 committed another default inasmuch as even after the filing of the ejectment application on 16‑12‑1984, no rent was paid to the appellant till the time when the Court vide order, dated 12‑5‑1985, directed respondent No.1 to deposit arrears of rent and future rent in Court. Thus according to the appellant the period of default in payment of rent by respondent No.1 is divided into two portions namely from the month of June 1984 to October 1984 and the other from 16‑12‑1984 to 12‑5‑1985. Mr. Jamah. submitted contended that the learned Rent Controller was not justified to ignore the aforesaid default in payment of rent by respondent No.1, on the sole ground that previously the landlord used to receive collective rent in lump sum for a period of more than one month. Mr. Jamali submitted that it has been held by superior Courts that such conduct of the landlord in accepting the accumulated rent, does not in any ‑ way give licence to the tenant to make default in payment of rent as and when he chooses to do so. Mr. Jamali contended that the right of the landlord to sue, the tenant on default does not extinguish on the plea that previously the landlord had been receiving accumulated rent for more than one month. Reliance is placed on 1980 SCMR 506 Abdul Rasheed v. Saleh Muhammad, whereby it is observed as under: ‑‑ "It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling down the requirements of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmed Khan 1971 SCMR 598 that `a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover, the receipt of rent by the landlord/respondent for the several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent:' Same view has been expressed by the Hon'ble Supreme Court in the latest authority reported as 1990 SCMR 1327 Ameer Ali and others v. M/s. Burma Oil Mills Limited. Mr. Khanzada learned counsel for the respondents, was unable to produce any case‑law to the contrary. So also no plausible evidence has been produced by the respondent No.1 to justify the alleged default in payment of rent. As such the learned Rent Controller erred in holding that no default in payment of rent was committed by respondent No.1. Accordingly the findings of the trial Court on this issue are set aside and it is held that there had been default in payment of rent by respondent No.1. ISSUE N0.3: Mr. Jamali learned counsel for the appellant invited my attention to the certificate Exh.14 issued by Architect Mr. G.N. Solangi who visited the disputed Bungalow and found the following damage caused to it as a result of improper and insufficient maintenance by respondent No.1: (1) Pillar of Main Gate‑ is tilted and cracked in the base. The reason of damage is careless driving. (2) Ceiling of the porch is damaged, the plaster has fallen down and the reinforcement has become naked and rusted. The reason of damage is seepage of rain water into the RCC Slab. (3) The sanitary fittings specially commodes and basins are broken. The reason of damage is improper maintenance of bathrooms and their fittings. (4) Parapet walls in front side have developed cracks. The reason of damage is the entry of rain water in walls. (5) The topping of roof is cracked at several places. The reason of damage is stagnant rain water. (6) Mosaic flooring has become dirty. The reason of damage is improper and insufficient arrangements of cleaning. (7) Fly proof wiring on windows has rusted. The reason of damage is improper arrangement of removing dust and cleaning the windows. (8) Chowkats of door have been damaged by white ants. The reason of damage is insufficient arrangements of cleaning and fuming. Mr. Jamali contended that Architect Mr. Solangi has been examined as witness of the appellant, and was thoroughly cross‑examined by the learned counsel for the other side. He contended that the respondent could not produce any witness from the neighbourhood to controvert the allegations of the appellant in respect of the damage to the property. Mr. Jamali pointed out that the written statement filed by the respondents; in response to the main ejectment application has been signed by Mr. Khaliq Siddiqui, Inspecting Assistant Commissioner Income Tax, Hyderabad. But neither aforesaid Mr. Siddiqui nor 'any other officer ever stepped into the witness‑box in the Court of the learned Rent Controller in order to controvert the allegations of the appellant. The respondents produced the only witness namely Waqar Ahmed who claimed to be Income Tax Inspector in the respondent department. He could not produce any authority to show that he had been authorized by the respondents to appear as witness in the present proceedings. Mr. Jamali contended that since the person who had signed the written statement failed to appear as a witness, hence the averments made by the appellant in the ejectment application have gone unchallenged. , On the other hand Mr. Khanzada learned counsel for the respondent submitted that the certificate issued by the Architect was a manipulated document. I do not find any force in the contention of Mr. Khanzada, as the respondents neither produced any witness from the neighbourhood, nor moved any application before the Trial Court to verify the contents of the certificate issued by the Architect by appointing Local Commissioner for inspecting the disputed Bungalow. Not only that but even respondent No.1 who had signed the written statement did not care to appear as a witness in the trial Court to controvert the averments made in the ejectment application. Admittedly vide clause No.4 of the written agreement Exh.15, respondent No.1 was responsible not to damage the walls, doors, fans, glass‑panes, electric fittings, earth wares, electric water machine etc., and was liable to get them repaired at his cost. Letters have also been produced by the appellant to show that he had been demanding respondent No.1 to get the damaged portions repaired, but nothing was done by the respondent. The certificate of the Architect indicates that the utility of the disputed Bungalow has been impaired as a result of negligence of respondent No.1, as such this issue was wrongly divided by the learned Rent Controller against the appellant. In view of the above discussion the present appeal is allowed. The impugned order dated 25‑11‑1987 is hereby set aside. The respondents are directed to hand over the vacant possession of the Bungalow in dispute to the appellant within two months of the date of this judgment. Parties to bear their own costs. H.B.T./S‑1104/K Appeal allowed.