1990 PLP 1003 (CLC)

"That the default as alleged had never been `deliberate' inasmuch as the applicants' deceased father Haji Abdul Ghafoor and/or other competent person(s) used to received rent collectively and periodically, and as such the application deserves to be dismissed. It is further added that during the past, the practice has been that collectively rent bills were being submitted on behalf of the landlord (s) and after obtaining necessary certificates and N.O.C. etc. from relevant departments/officers, sanction is accorded by competent authority under the provisions of the Financial Rules and the Re‑appropriation Rules, and payment is made through cheque issued by the Accountant‑General, Sindh, under the Budget Allocation Head `519‑Cooperation; B Superintendence'."

4. The parties went to trial on the following issues: (i) Whether application is maintainable? (ii) Whether application proceedings are barred under Article 129/174 of the Constitution of Pakistan, 1973? (iii) Whether application is not mainainable for want of notice under section 18 of the Sindh Rented Premises Ordinance, 1979? (iv) Whether opponent is wilful defaulter in payment of rent as alleged in the application? (v) What should the order be

5. The respondents tendered evidence through affidavit‑in‑evidence filed by their attorney Muhammad Yousuf Kamani (P.W.1), who was subjected to cross- examination by counsel for appellant. The appellant filed affidavit of Syed Sirajuddin, Deputy Registrar, Cooperative Societies, Karachi. He however, deputed Muhammad Saeed Rdjput for the purpose of cross‑examination, who was actually cross‑examined on 12‑1‑1987, and then the side was closed.

6. The appellant did not press issues Nos. 1 to

3. Issue No.4 was decided against the appellant resulting into the order of eviction passed by Rent Controller on 31‑1‑1987. It is in these circumstances that the present appeal has been filed.

7. Subsection (4) of section 19 of the Sindh Rented Prmises Ordinance, 1979, lays down the procedure of taking evidence in a case filed under the above Ordinance. It provides: "A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross‑examine the witness on such affidavit and if the witness has been cross‑examined the party producing the witness may re examine him."

8. A bare reading of subsection (4) would show that the affidavit‑in‑evidence produced by a witness will be accepted only if such witness steps into the witness‑box for the purpose of cross‑examination. The affidavit‑in‑evidence produced by a person who did not, offer himself for the purpose of cross- examination, therefore, cannot be made use of. The object of cross‑examination is to displace so far as it is adverse, the effect of examination‑in‑chief; and as such, it is necessary to put the same witness in the witness‑box who has tendered evidence in examination‑in‑chief in whatever form. The delegation of authority to any other person for the purpose of cross‑examination defeats the very object of cross‑examination, which "if properly conducted, is one of the most useful and efficacious means of discovering truth". Therefore, the evidence tendered by the appellant through affidavit‑in‑evidence produced by Syed Sirajuddin, Deputy Registrar, Cooperative Secieties, Karachi will not be received.

9. The tenancy and the quantum of rent is not in dispute. There is no written agreement of tenancy presently in force. In the absence of written agreement of tenancy, the tenant would be deemed to have committed default if he failed to tender rent within sixty days after if became due. Admittedly the rent C was not paid within the grace period of sixty days. The practice of lump sum payment is specifically denied by Muhammad Yousuf Kamani in para. No.5 of the affidavit‑in‑evidence. Certain payments made collectively cannot be said to have given rise to any such practice. Even otherwise there is no evidence in rebuttal in this behalf. The cases reported as Abdul Aziz v. Abdul Ghani (1986 SCMR 1857), and Akhtar Muhammad alias Akhtaran v. Sirajuddin (1986 SCMR 1887), which are relied upon on behalf. of appellant are, therefore, distinguishable. The case reported as Mst. Hajiani Aisha v. Abdul Waheed (P L D 1989 SC 489), is more relevant in a situation like the one under consideration. At page 491, it was observed:‑ "Moreover, it has been consistently held by this Court that the mere fact that the landlord accepts rent from the tenant periodically does not mean that he does not desire or expect rent to be paid in time as required by the Ordinance, Haji Muhammad Qasim v. Mehran Ali, 1983 SCMR 1205; defence based on the ground of landlord receiving or collecting the rent at intervals of several months is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent."

10. The record shows that the respondents had to take pains in getting the bills of rent passed from the office of Accountant‑General. The payments were again made subject to availability of funds. The Sindh Rented Premises Ordinance, 1979, imposes no such obligation on the landlord. It also makes no distinction between an ordinary tenant and a Government department which hires premises as tenant. In the case of Province of West Pakistan, Lahore v. Mian Noor Ahmad and others, reported in 1975 SCMR 91, their Lordships of the Supreme Court made it clear that the Government is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matters. This question was also examined in Province of Punjab and others v. Muhammad Tufail, reported in PLD 1985 SC 360, while examining the question of stay against the order of ejectment , in respect of a school owned by the Government; and it was observed: "This contention is misconceived because once this view is accepted all persons hiring buildings on rent for running schools would hardly ever feel obliged to pay the rent to the landlords, because they would always rise the plea of `inconvenience to students'. There is no reason to treat such tenants differently from other tenants simply because they are running schools in the buildings taken on rent by them, because like other tenants they are governed by the provisions of the West Pakistan Rent Restriction Ordinance, 1959. In fact, tenants who are running a school in the hired building should act with much greater care and responsibility than ordinary tenants because any default or infringement of the Rent Laws on their part would not only cause inconvenience to them but also to the students studying in their schools:'

11. The question of preferential treatment to Government as compared to ordinary citizens was also examined by Muftakhruddin, J. (as he then was) in the case of President of Pakistan, through Assistant Engineer, Divisional Telecom. Training Centre, Quetta v. Haji Abdul Hameed, reported in PLJ 1984 Quetta 18, it was observed.: "It is a fundamental and salutary principle of law and can never be _departed from that the Government is not entitled to any preferential treatment as compared to ordinary citizens as there is no discrimination in the State:"

12. A point which was touched upon during arguments may now be dealt with. It is contended on behalf of the appellant that the rent due was under attachment by the Excise and Taxation Department, Karachi, and consequently the appellant was not a defaulter when the application for ejectment was filed. This plea was not raised in written statement. The affidavit‑in‑evidence filed by Syed Sirajuddin is expunged from the record for the reasons given in para. 8 above. The objection to this effect was, however, taken in reply to the application made by respondents for the deposit of arrears of rent and monthly rent due. The respondents have explained this position in reply to the objections filed on 25‑4 1983, before the Rent Controller. Paras. Nos..2 to 4 of this reply are self explanatory, which are reproduced in extenso: "That the notice dated 17‑12‑1981 was regarding the arrears of Property Tax for the assessment years 1979‑80 and 198 1‑82 which have since long been cleared. ' That the opponent had already paid the rent for the months of January, 1982 to April, 1982 to the applicants vide cheque dated 16‑5‑1982 (Photo copy annexed herewith as Annexure `A'). That on 14‑2‑1983 there was no outstanding tax liability against the Demand Notice dated 17‑12‑1981 and the opponent has tried to confuse the matter by paying the Property Tax for the current year which would have become due in June 1983. The photo copy of the Challan represents the tax for the year 1982‑83 which the opponent has tried to tag with the notice dated 17‑12‑1981 which pertains to the tax demand for the years 1979‑80 and 1981‑82 and not to the year 1982‑83."

13. No case for interference is made out and the appeal is accordingly dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises. H.B.T./D‑69/K Appeal dismissed.