2000 PLP C (CLC)

(2) Whether opponent has committed default?" The learned Rent Controller while allowing the ejectment applications disbelieved the pleas of the appellants/tenants that the A.P.O. had illegally enhanced the rent from Rs.125 to Rs.250, Rs.130 to Rs.300, Rs.130 to Rs.300, Rs.130 to Rs.300, Rs.120 to Rs.150 and Rs.130 to RS‑300 and/or that they were paying rent at the rate of Rs.250, Rs.300 and Rs.300, Rs.300, Rs.150 and Rs.300 per month in respect of Flats Nos. 1, 2, 3, 4, 6 and 8 respectively, or that the rent was paid to the A. P.O. under protest, as these pleas were not taken in the written statement. Finally, the learned Rent Controller held Rs.250, Rs.300, Rs.300, Rs.300, Rs.150 and Rs.300 the rates of rent betmleen the parties at which rate the appellants/tenants were lastly paying rent to the A.P.O. prior to restoration of the property in question to the respondent/landlord. The learned Rent Controller further held that since the appellants/tenants in their respective cross‑examinations admitted to have received notices of the respondent/landlord, dated 23‑12‑1985 and 5‑7‑1986, under section 18 of S.R.P.O., 1979 according to their own admissions for the first time the rent was sent through money orders to the respondent/landlord in February, 1989, therefore, the appellants have committed wilful default in the payment of rent. Learned counsel for the appellants in all the appeals, submitted that:‑‑ (a) the ejectment applications were not maintainable. (b) Notices under section 18 of the S.R.P.O., 1979 were defective, inasmuch as those were silent with regard to the amount and period, of default; (c) the quantum of rent was never finally decided in the Constitution petition (supra) filed by the appellants against the order of A.P.O. challenging the enhancement of rent; (d) the rate of rent is disputed and since no proceedings under section 8 of the S.R.P.O., 1979 for fixation of fair rent were never instituted, by the respondent/landlord original rate of rent would prevail and on this point the finding of the learned Rent Controller holding rate of rent as claimed by the respondent/landlord in the ejectment order was incorrect. (e) the appellants were depositing rent in their respective Constitution petitions before this Court and thereafter, the rent was tendered to the respondent/landlord through money orders and ultimately the rent was deposited in miscellaneous rent case, therefore, there is not a single default on the part of the appellants/tenants regarding payment of rent, and thus, question of wilful and. deliberate default does not arise. (t) on receipt of notice under section 18 of S.R.P.O., 1979, the appellants started depositing rent in M.R.Cs. and at best the alleged default could be termed as technical default and the ejectment should not have been ordered in the circumstances of the case. In support of the above submission, the learned counsel for the appellants cited the following case‑law:‑‑ (i) Manzoor Ahmed v. Muhammad Ameen 1982 SCMR 894(2), (ii) Haji Maqbool‑ur‑Rehman Khan v. D.C./Collector, Abbottabad 1991 SCMR 301, and (iii) Alamdar Hussain v. Emmanul Victor 1987 SCMR 2240. Learned counsel for the respondent/landlord, submitted that only two points are involved in all these cases:‑‑ (a) Whether tenants on service of notices under section 18 of S.R.P.O., 1979 paid/tendered rent to the landlord within 30 days as required under the law; (b) What was the agreed rate of rent, or the rent payable by the tenants to the landlord? On the first point, learned counsel for the respondent submitted that in all the cases service of notices, dated 23‑12‑1985 and 5‑7‑1986 under section 18 of the S.R.P.O., 1979 by the respondent, upon the tenants were not disputed and the replies are also available on record (as annexed with the ejectment applications). Further more, the appellants/tenants during cross‑examination admitted receipt of the notices and the fact that the building was released in favour of the landlord/respondent in May, 1985. Likewise, in none of the cases, the tenants tendered the rent to the landlord prior to February, 1989 and as such according to learned counsel for the respondent, it constituted deliberate violation of requirements of section 18 of S.R.P.O., 1979, under which a tenant is duty bound to tender rent to the landlord within 30 days of the service of such notice upon him. Thus, in the absence of any cogent and lawful reason from the side of the appellants as alleged wilful and deliberate default in payment of rent has been proved, While replying to the arguments of the learned counsel for the appellants/tenants that in the notice under section 18 of S.R.P.O., 1979, the rate of rent and the arrears were not mentioned and as such the learned Rent Controller was not justified to pass ejectment order, the learned counsel for the respondent submitted that section 18 of S.R.P.O., 1979 does not require and cast duty upon the landlord to do so. This point would, therefore, require consideration only in the case where the tenant has tendered rent at the rate lower than the demanded rent by the landlord, but this is not the situation in the instant cases, in which the tenants admittedly did not tender rent to the landlord through any mode prior to February, 1989 at any rate. If the tenants would have tendered rent to the landlord at their own admitted rate but within 30 days of receipt of such notices, the situation would have been quite different, but in the instant cases admittedly the appellants did not tender the rent at any rate prior to February, 1989. Therefore, submission of the learned counsel for ~ the appellants is devoid of any force. On this scope i.e. non‑compliance of the provisions of section 18 of the S.R.P.O., 1979, regarding tender of rent to the landlord within the specified tittle, the tenants are liable to be ejected from the tenements as such non‑compliance amouno to commission of deliberate default in payment of rent within the meaning of section 15(2)(ii), of S.R.P.O., 1979 and the alleged tender of rent after about more than 2‑1/2 years could not save skin of the appellants in respect of default comnutted by them. It is also settled law, and there can be no two opinions that if the tenant on service of notice under section 18 of S.R.P.O., 1979 by the landlord fails to pay/tender rent due within 30 days of receipt of such notice, without valid reasons; it amounts to commission of wilful and deliberate A default in the payment of rent and the tenant is liable to be evicted on this score. Learned counsel for the respondent also contended that admittedly, after receipt of notice under section 18 of the S.R.P.O., 1979, the appellants did not tender rent to the landlord personally till to date. It is also not the case of the appellants that the landlord/respondent avoided or refused to accept rent, when tendered personally. It is the legal requirement under section 10(3) of the S.R.P.O., 1979, that the tenant is required to pay rent directly to the landlord but in case of refusal /avoidance the same can be remitted through money orders and in case if the tenant is unable to succeed to tender rent even through money orders, the same can be deposited by him at his own risk in miscellaneous rent case, before the learned Rent Controller. He referred to the following case‑law in support of his above submission:‑‑ (i) Muhammad Saleem Qureshi v. Muhammad Mohsin Butt 1996 CLC 381, (ii) Pak Food Manufactures v. Sadik Ishaque 1992 CLC 482, (iii) Munawar Hassan v. Badiul Hassan 1992 CLC 2495, (iv) Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204, and (v) Habib Bux v. Mst. Bilqees Begum 1995 SCMR 448.' I have carefully examined the above submissions of the learned counsel for the parties in the light of evidence on record as well as the case law cited by them. Now I would take up the contentions of the learned counsel for the appellants/tenants. So far as the contention regarding maintainability of ejectment applications is concerned, he has failed to give any cogent reason in this behalf. Regarding submissions about the validity of the notices under section 18 of S. R. P.O, 1979, suffice it to observe that as was rightly submitted by the learned counsel for the respondent/landlord that section 18 of S.R.P.O., 1979 does not require and the landlord is not duty bound to mention the rate of rent, as well as arrears of rent in the notice. The requirement of law is that the landlord should send only intimation to the 8 tenant regarding change of ownership in writing by registered post and the tenant is required to pay rent due within 30 days of the receipt of such intimation. There is no denial of the fact that the appellants were intimated by the respondent through notices, dated 23‑12‑1985 and 5‑7‑1986 and they failed to comply such requirement of law by not sending/tendering rent to the landlord/respondent for more than 2‑1/2 years. Therefore, the contention of the learned counsel for the appellants is devoid of any force. Further more, the long practice of the appellants/tenants to pay rent at the revised rate without any protest for about. 15 months to the previous landlord i.e. A.P.O. indicated consent of the appellants to accept such rate of rent and this, in my humble view, was the rent which the appellants were liable to pay, therefore, submission of the learned counsel for the appellants that quantum of rent was never finally decided in the Constitution petition which were preferred after a lapse of 15 months of such revision by the A.P.O. does not contain any weight‑ On the contrary, it clearly indicates that initially they accepted the enhanced rate for 15 months, and then decided to challenge the same in this Court‑ Thus, viewed from any angle there was no dispute regarding rate of rent as the appellants had accepted to pay the rent at the revised rate and paid the same for a long period of 15 months and in the circumstances, the C respondent/landlord was not required to get the fair rent fixed prior to the institution of the ejectment proceedings. The learned Rent Controller has rightly upheld the rate: of rent as claimed by the respondent/landlord in the ejectment applications, at which rate the appellants/tenants had lastly paid rent to the A.P.O. for about 15 months without any protest. Now coming to the question of tendering rent through money order, as alleged by the appellants, and its deposit in M.R.C., it has come in evidence and has also been admitted by the appellants in their cross examinations that despite receipt of two notices, they did not tender/pay rent prior to February, 1989 when for the first time the rent was sent through money order. There is hardly any doubt that the appellants did not pay/tender. rent within time prescribed by law.. Such a tender of rent at the belated stage cannot be helpful to the appellants in any manner, to wipe out the default which had already been committed by them. Here at this stage, it would be relevant to deal with the submission of the learned counsel for the appellants that at best the alleged default could be treated as technical default. There is no force in this submission and the case‑law cited by him in support of this submission is also not relevant. As observed, earlier, the appellants failed to tender rent to the respondent/landlord for more than 2‑1/2 years after service of the notice under section 18 of S.R.P.O., 1979 as was rightly submitted by the learned counsel for the respondent, there is no cogent and lawful reason to support the conduct of the appellants. Therefore, it cannot be said that the appellants default could be treated as technical and the learned Rent Controller rightly decided that the appellants committed default wilfully and deliberately in payment of rents The next and important submission of the learned counsel for the appellants was that since the notification/order of the A,PO, acquiring the property of the respondent as abandoned was declared null and void, upon refusal of the Honourable Supremd Court, therefore, all subsequent actions/orders including fixation of rent by the A. P.O. were illegal and as such the revised rate of rent could not be held to be applicable to the appellants and they would not be liable to pay rents on such rates. This submission is also devoid of force because, the learned Rent Controller did not hold the rate of rent payable by the appellants on the basis of declaring the authority of A.P.O. in this behalf as lawful. In fact the learned Rent Controller held the rent payable by the tenants at the rate of which they had lastly paid for more than 15 months with effect from June, 1980 to August, 1981 to the A.P.O. without any protest or objection prior to filing of their respective Constitutional petitions in this Court against enhancement of rent which admittedly were filed in August, 1981. This conduct of the appellants would come as estoppel in their way to challenge the rates of rent on which they had been paying rents from June, 1980 till August, 1981. The case‑law cited by the learned counsel for the respondent/landlord is applicable to the facts of the instant case and I have respectively followed the principles laid down in those authorities. In Habib v. Mst. Bilqees Begum 1995 SCMR 448, his Lordship of the Honourable Supreme Court declined, to interfere with the judgment of this Court whereby ejectment of the tenant was ordered on the ground of default in payment of rent, who despite service of notice of the new landlord regarding change of ownership deposited rent with the Rent Controller in the name of previous owner without following the proper course for tendering rent to the new landlord. If at all they were aggrieved they could have paid rent according to law. Thus, they were not entitled to tender rents on the rates which were prevailing, before the A.P.O. acquired the demised premises. The learned counsel for the respondent has rightly pointed out that the receipts of rent produced by the appellants are sufficient to determine the agreed rents between the parties. Learned counsel for the respondent also took up additional pleas in respect of F.R.As. Nos.584, 585 and 587 of 1991 (Rent Cases Nos. 1004 of 1987, 1006 of 1987 and 1007 of 1987) in respect of Flats Nos. l. 3 and 4 which were contested through the special power of attorneys. These F.R.As, have also been filed and are being contested through the said special power of attorneys. In this regard suffice it to observe that those attorneys were authorised to proceed with the matters before the learned Rent Controller and/or to file and contest the present three appeals in this Court. Copies of the special power of attorneys are available in the R&Ps. Learned counsel for the respondent submitted that three appellants/tenants in these appeals have sub‑let the tenaments in their possession to their alleged attorneys, who took the power of attorneys from them for the reason that now their interests are involved in the tenaments. It was also rightly contended by him that a general power of attorney can be used to give powers to the attorney to do D more than one acts while through special power of attorney, the principal can give powers to his attorney to do only one act‑ Admittedly, these attorneys in conducting the rent cases and present F.R.As. have done more than one and i.e. filing affidavits in evidence, cross‑examination and done some incidental acts to proceed with the matters. Thereafter, on the basis of same special power of attorneys they filed the present F.R.As. signed Vakalatnamas and sworn affidavits in support of applications. In these circumstances, these appeals having been filed by the incompetent persons are liable to be dismissed being not maintainable on this score too. See Zawar Hussain v. Abid Hussain 1994 MLD 2251. The learned counsel for the appellants did not make any submission on this aspect of the matter. Thus, it can safely be held that these three appeals having been filed by the persons not legally competent to do so, are not maintainable in law. The upshot of the above discussion is that there was no misreading of evidence or misapplication of case‑law and the findings of the learned Rent Controller require no interference. Accordingly, these appeals having no weight are dismissed with costs. The appellants are directed to hand over vacant possession of the demised premises to the respondent within sixty days subject to payment of rent. Q.M.H./M.A.K./K‑6/K Appeals dismissed.