1994 PLP 1302 (CLC)

‑‑‑‑S. 15(2)(iii)(a)‑‑‑Original tenant moving out of premises, after handing over possession to a stranger‑‑‑Such act on the part of tenant being an unauthorised act, person inducted into possession by him was liable to be evicted in the execution of ejectment order passed against original tenant. (g) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑S. 15‑‑‑Bona fide personal requirement of landlady‑‑‑Neither landlady nor any of witnesses had shown what accommodation was available with the landlady and what was the number of family members and what were the genuine requirement of landlady‑‑‑In evidence, in support of ejectment application phrase "large family" as used by landlady and other witnesses was vague‑‑‑Evidence on record, thus, would not entitle landlady to eviction of tenant on ground of bona fide personal requirement. (h) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑ONI, R.1‑‑‑Different case set up by a party in evidence than that averred in pleadings‑‑‑Effect‑‑‑No party can set up in evidence, a case different from the one pleaded by it in pleadings‑‑‑Any evidence in support of such claim, which was beyond the pleadings, should not be allowed to be brought on record and, if brought should be ignored.‑‑[Practice and procedure‑ Pleadings]. (i) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ . ‑‑‑‑S. 21‑‑‑Eviction of tenant was ordered by, Rent Controller on ground of bona fide personal requirement of landlord‑‑‑High Court in appeal found such ground to be untenable on basis of evidence‑‑‑High Court, however, on review of evidence ordered ejectment of tenant on other ground, viz. default and subletting. Shaikh Hamid Hassan for Appellant. Muhammad Zaki-ud-din for Respondent No.l. Respondent No.2 (absent). Date of hearing: 12th January 1994. This case has a long and chequered history. Briefly stated, the facts are that, respondent Mst. Saghira Bano had sought the eviction of respondent No. 2, Muslim Raza, from House No. B/249, Block J', North Nazimabad Karachi and according to her, Muslim Raza was her tenant since 5th May, 1975 at a monthly rent of Rs.800, that since 5th April, 1978 Muslim Raza had defaulted in payment of rent, that he had sublet the premises to a third party who had made additions and alterations in the premises and had thus impaired its value and that she required the premises for the personal need of her son who wanted to marry but the house in which she was living, alongwith her son, was not sufficient for the family of her son. Muslim Raza who was originally impleaded as the only respondent, contested the eviction application and filed his written statement. He denied the existence of relationship of landlady and tenant. According to him, the tenancy was originally jointly secured by him (Muslim Raza) and his sister's husband Dr. Ubaidur Raza Khan although the rent agreement was executed only by him (by Muslim Raza) but this execution of the agreement only by him was only for the sake of convenience but in actual fact he and his sister's husband Dr. Ubaidur Raza Khan both were joint tenants in the premises. Muslim Raza further stated that after the expiry of the lease period of eleven months, the landlady insisted on the enhancement of rent but he was not agreeable to it but his sister's husband Dr. Ubaidur Raza Khan agreed to pay the enhanced rent if he alone was treated as the tenant and this arrangement was accepted by the landlady and he (Muslim Raza) moved out of the house on 15‑7‑1976 and went somewhere else to live and since this date Dr. Ubaidur Raza Khan alone became the tenant in the house. Dr. Ubaidur Raza Khan himself, however, did not come forward to safeguard his interests and did not make any application to be impleaded in the proceedings. It appears that an issues as to relationship of landlord and tenant was framed by the learned Rent Controller but, before the determination of such relationship, he also passed an order on 21‑12‑1983 under section 16(1) of the Sindh Rented Premises Ordinance, 1979, directing Muslim Raza to deposit tentative rent and when it was not complied with, his defence was struck off vide order dated 12‑11‑1984 passed under section 16(2) of the Ordinance. Even thereafter, the sister's brother Dr. Ubaidur Raza Khan did not come forward to safeguard his interests and it was Muslim Raza who challenged the eviction order in F.R.A. No. 24/85 which was decided by this Court on 18‑5‑1987 and the impugned order was set aside and the case was remanded to the learned Rent Controller for first deciding the issue as to the existence of the relationship of landlord and tenant. It was during the pendency of the said F.R.A. No.24/85 that Dr. Ubaidur Raza Khan moved an application before this Court under Order I, Rule 10, C.P.C. for being impleaded in the proceedings. However, this Court, while deciding F.R.A. No. 24 of 1985, loft this application undecided and directed that this be agitated before the learned Rent Controller. Subsequent thereto, this application was heard by the learned Rent Controller and allowed and the said Dr. Ubaidur Raza Khan was impleaded as opponent No.

2. He then filed his written statement in which he supported the averments earlier made by Muslim Raza in his written. statement. He further claimed that it was he who had been all along paying rent to the landlady and that this rent was being paid through crossed‑cheques and this proved that by mutual arrangement Muslim Raza had ceased to be the tenant and he (Dr. Ubaidur Raza Khan) had been accepted as the sole tenant of the premises. Thereafter, parties led their evidence and vide impugned judgment dated 4‑9‑1991, learned Rent Controller upheld the contention of Muslim Raza and Dr. Ubaidur Raza Khan that the latter had been the only tenant in the premises and further held that relationship of landlord and tenant did not exist between the landlady and Muslim Raza but did exist between the landlady and Dr. Ubaidur Raza Khan. However, the personal requirements of the landlady were accepted and Dr. Ubaidur Raza Khan was directed to vacate the premises and hand over the vacant possession to the landlady. Through this appeal, Dr. Ubaidur Raza Khan challenges the impugned judgment and his brother‑in‑law Muslim Raza has been impleaded in this appeal as respondent No. 2.

2. Learned counsel for the parties have been heard.

3. At the outset, learned counsel for the respondent/landlady had raised the objection that the appeal was barred by time and he pointed out that it was filed on 13‑11‑1991 whereas the judgment was announced on 4‑9‑1991 and although application for obtaining copy was moved by the appellant on that very day but thereafter he slept over the matter from 4‑9‑1991 to 13‑10‑1991 when the costs were estimated. According to the learned counsel for the respondent, if the appellant had pursued the matter, costs could have been estimated much earlier. He pointed out that the respondent had herself applied for obtaining certified copy and in that connection the R & P of the case had been received in the Copying Agency on 9‑9‑1991. (Learned counsel for the respondent showed me certified copy of the entry in the peon book showing that the R & P had been received in the Copying Agency on 9‑9‑1991). Learned Counsel then argued that costs could have been estimated on 9‑9‑1991 but the fact that they were estimated on 13‑10‑1991 showed that the appellant had not pursued his case and therefore appeal must be held to be barred by time.

4. I am not impressed by this argument. It is true if the appellant had pursued the matter, costs could have been estimated earlier as argued by the learned counsel for the respondent but, nevertheless, the law does not require a party to pursue the matter in the Copying Agency and therefore the appellant was under no obligation to pursue the matter with it. It was the duty of the Copying Agency to issue notice to the person applying for the certified copy and to intimate that the R & P had been received and costs had been estimated. This view finds support from the judgment in the case of Mst. Safdari Begum v. Amir Ali Tabrezi (1985 CLC 836). Now the costs were estimated on 13‑10‑1991 and the same were paid on the very next day. and the copy was supplied on 16‑10‑1991. There was thus, legally speaking, no delay in the delivery of the copy and the appeal was filed on 13‑11‑1991, which was within 30 days thereof. The appeal is therefore within time. The objection raised by the learned counsel for the respondent is rejected and Civil Miscellaneous Appeal No. 1160/92 moved by Mst. Saghera Bano for the dismissal of the appeal on the ground of limitation, is dismissed.

5. We would now come to the merits of the case. Learned Rent Controller had decided that relationship of landlord and tenant had ceased to exist between the landlady and Muslim Raza and Dr. Ubaidur Raza Khan had been subsequently accepted by the landlady as her tenant. Mst. Saghera Bano (respondent No. 1) did not contest the findings of the learned Rent Controller by way of filing cross‑appeal but by now there are a number of reported cases to the effect that a respondent can defend an order passed by Rent Controller even on the basis of a point decided against him (or her) by Rent Controller. A reference may be made to the cases reported as PLD 1981 Lah. 52 (Muhammad Ashraf v. Muhammad Almas), 1984 CLC 2554 (Wall Muhammad v. Abdul Karim) and 1985 CLC 2485 (Bashir Ahmed v. Additional District Judge Gujrat). Learned counsel for respondent No. 1 was therefore permitted to address the Court on the point of the existence of the relationship of landlord and tenant between the landlady and appellant Muslim Raza. Learned counsel for respondent No. 1 had vehemently insisted that the tenant of the landlady was no other but Muslim Raza and appellant Ubaidur Raza Khan had never been accepted by her as her tenant and his position was merely that of a sub‑tenant. Rent agreement executed in March 1975 and effective from 5th May, 1975 between respondent No. 1 Mst. Saghera Bario and respondent No. 2 Muslim Raza is on record as ExhA/2. It is an admitted document. It shows that Muslim Raza was the only tenant in the demised premises. Muslim Raza also admits in his written statement that it is so. However,. his claim is that he had been shown as the only tenant merely by way of convenience but, in fact, this rent agreement stipulated that he himself and his sister's husband Dr. Ubaidur Raza Khan were both joint tanants in the premises. I am of the view that the appellant or his brother‑in‑law Muslim Raza could not have been suffered to raise a defence contrary to the obvious and clear meaning of the tenancy agreement. Even otherwise, they had led no evidence in support of this unnatural averment on their part and their claim in this regard finds support only from their own affidavits‑in‑evidence and by nothing else. I would, therefore, reject this defence on their part and hold that Muslim Raza was the only tenant inducted into the premises by the landlady vide rent agreement ExhA./2.

6. Further, plea of the appellant and his brother in law was that on 5‑7‑1976 Muslim Raza had vacated the premises and from this date Dr. Ubaidur Raza Khan had been accepted by the landlady as her sole tenant in the premises: The only evidence on which the appellant and his brother‑in‑law relied in support of this claim is the alleged payment of rent by appellant Dr. Ubaidur Raza Khan and its acceptance by the landlady and in this regard reliance is placed on Annexure `A' to the affidavit in evidence of the appellant. This Annexure `A' is a certified copy dated 1‑11‑1978 allegedly given by National Bank of Pakistan showing that about 24 cheques issued by Dr. Ubaidur Raza Khan, holder of Current Account No. 64, and in the name of Mst. Saghera Bano were credited in Account No. 2128 which was in the name of the lady at its Paposhnager Branch. This certificate is not a document which can be admitted in evidence without any formal proof. The Manager of the Bank or any other Officer of the Bank has not been produced in evidence in support of the contents of the certificate. The certificate is only initialled by the Officer making it and it cannot even be ascertained as to who had issued it. As such no reliance can be put over this document. Even otherwise, even if the rent had been paid through cheques issued by appellant Dr. Ubaidur Raza Khan it would not mean that it was he who was paying the rent to the landlady. 'The cheques are negotiable instruments and they can be passed on from person to person, just like bank notes, and it makes no difference that the payment of rent was made through the cheques issued by the appellant. There is no acknowledgement on the part of the landlady that she had ever accepted the appellant as a tenant. No rent receipt had been issued in the name of the appellant. In fact as soon as she came to know that her tenant Muslim Raza was no more residing in the house she brought forward eviction application against him. If, through mutual agreement, Muslim Raza, had moved out of the premises and appellant Dr. Ubaidur Raza Khan had been accepted as the sole tenant in the premises, the proper thing for Muslim Raza to do was to take back from the landlady the rent agreement ExhA/2 or to execute a letter of annulment of the existence of tenancy and it was equally incumbent upon appellant Dr. Ubaidur Raza Khan to execute a written rent agreement with the landlady. No doubt, it is certainly not necessary that there must be a written rent agreement between the parties but if the tenancy had originally been created through a written rent agreement and, subsequently, a change was desired, it became incumbent that such change should be brought on record through a fresh rent agreement. The case of the appellant and his brother‑in law is that they were joint tenants and, subsequently, appellant Dr. Ubaidur Raza Kha n became the sole tenant and the other co‑tenant (Muslim Raza) had moved out since 5‑7‑1976. This amounted to a fundamental change in the terms and conditions of the tenancy and this change could not have been left to be determined by an oral agreement when the original tenancy was through a written rent agreement. Sections 91 and 92 of the Repealed Evidence Act are clear on this point. Learned Rent Controller has proceeded on untenable premises. The eviction application was filed in 1978 and in the very next year Dr. Ubaidur Raza Khan had filed Miscellaneous Rent Case No. 1477/79 and commenced depositing the rent. The landlady was not a party to these proceedings except that the rent was deposited in her name. Depositing of rent by Dr. Ubaidur Raza Khan in Miscellaneous Rent Case No. 1477/79 does not create the relationship of landlord and tenant between them and nor it discloses that the landlady had accepted Dr. Ubaidur Raza Khan as her tenant. As earlier noted, if the landlady received rent through cheques, it also did not indicate that the executant of the cheque had been accepted by her as her tenant because a cheque being a negotiable instrument can be passed on from one person to another. The finding of the learned Rent Controller is therefore fallacious. I am of the considered view that Muslim Raza was the sole tenant of the landlady vide rent agreement Exh. A/2 and when he moved out from the premises, as claimed by the landlady, and as admitted by Muslim Raja himself, and hand ed over the remises to Dr. Ubaidur Raza Khan, both of them became liable to eviction. It was not necessary for the landlady to originally implead Dr. baidur Raza Khan in the rent application because he was not her tenant. Only a tenant is to be impleaded in the rent application and when .an order of eviction is passed against him all who are in possession through the tenant are liable to be evicted in the execution of the eviction order, if passed in the case. The situation as emerges from the evidence on record is that, Muslim Raza, the tenant, moved out and, instead of handing over possession to the landlady, handed it over to his sister's husband which was an unauthorised act and in view of section 13(2)(f)(a) under the Repealed West Pakistan Rent Restriction Ordinance, 1959 which was in force when the eviction application was filed, as well as under section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979 which succeeded the repealed one, he became liable to ejectment from the premises. I would therefore set aside the findings of the learned Rent Controller on issues Nos. 1, 2 and.3.

7. The respondent/landlady had also sought eviction of the appellant on the ground that she required the premises for her personal need as she wanted to marry her son and the house in her possession was not spacious enough to accommodate her family. Learned Rent Controller has decided this issue in favour of the landlady and it was on this ground that eviction of the appellant has been ordered by him.

8. I find that para.5 of the eviction application in which this ground has been raised is vague. Name of the son who was going to be married has not been given. How the accommodation in her possession was not spacious enough, how much accommodation was in her possession and what were her requirements, all these questions are left vague. The respondent/landlady has filed her affidavit‑in‑evidence, dated 20th February, 1990 (page 21 of the record). She does not state anything in her affidavit‑in‑evidence about the pending marriage of her son nor she has even given the name of that son whose marriage was under contemplation but could not take place due to non availability of accommodation in the house in which she was living. Landlady's husband Prof. Dr. S.M. Saeed has also filed his affidavit‑in‑evidence and even he does not throw any light on this point. Hasan Aziz and Muhammad Asad Khan and S. Arshad Azhar have also filed affidavits‑in‑evidence as witnesses of the respondent/landlady and they also do not throw any light on the point. The landlady had also examined her son Syed Muhammad Akhtarul Eman as a witness. Even he does not state that either his or any of his brothers' marriage had been held up due to lack of accommodation. Thus, part of the ground taken in para.5 of his eviction application, that her son was going to be married and there was no accommodation for her extended family, has been clearly given up and abandoned. As for the averment made in the same para.5 of the eviction application that the accommodation in her possession was not spacious enough to accommodate her family, there is again no details in the evidence and I find that there was no basis for the learned Rent Controller to hold that the respondent/landlady required the demised premises for‑her personal use and occupation. Neither the landlady herself, nor any of her witnesses, has shown what accommodation was available with the landlady and what was the number of the family members and what were her genuine requirements. In para.8 of her affidavit‑in‑evidence, the landlady states that her family was large and that she has been residing in the house of her relations who had repeatedly asked her to vacate the premises. Now the phrase `large family' is vague. She should have given the details of her family members. Besides, the averment that she had been residing in the house of her relations who had repeatedly asked her to vacate the same is an averment beyond her pleadings. No such averment was made by her in her eviction application. No evidence therefore can be looked into even if the respondent/landlady had brought it on record in support of the claim that she was living in the house of her relations who had asked her to vacate the same. It is a settled principle of law that no party can set up in evidence a case different from the one pleaded by him or her in his or her pleadings and that any evidence in support of such claim, which is beyond the pleadings, should not be allowed to be brought on record and, if brought, should be ignored. Learned Rent Controller, while discussing issue No. 6 has completely ignored this principle of law. He has completely ignored the averments made by the respondent/landlady in her eviction application and has straightaway proceeded to examine the evidence brought by her on record. As a matter of fact, if it had appeared to the respondent/landlady at any subsequent stage after the filing of the eviction application that the basis of her personal requirements had changed, she should have moved an application before the learned Rent Controller for the amendment of her pleadings, that is, for the amendment of her eviction application, so as to plead the changed circumstances on the basis of which also she felt herself entitled to seek eviction of the appellant/tenant and press her personal requirements. This she did not do. Findings of the learned Rent Controller on issue No. 6 cannot therefore be sustained and are set aside and it is held that the respondent/landlady has failed to establish that she required the demised premises for her personal requirements

9. Even though the findings of issue No. 6 have been set aside, the appeal must fail because the findings on issues Nos. 1, 2 and 3 have also been set aside and it has been held that the appellant is liable to be evicted because the actual tenant, who is Muslim Raza, vacated the premises and unauthorisedly handed them over to her sister's husband Dr. Ubaidur Raza Khan, the present appellant. The impugned judgment of eviction is therefore, upheld and the appeal is dismissed. However, under the circumstances of the case the parties are left to bear their own costs. The appellant is allowed two months' time from the date of this judgment for vacating the premises. AA/U‑149/K Appeal dismissed.