1985 PLP 979 (MLD)

Syed Iriza Zaidi for Appellant. Khalid Latif for Respondent. Date of hearing: 6th March, 1985. This is a first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the order, dated 21-1-1982 passed by the learned XIIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 1721 of 1971 whereby the defence of the appellant was struck off with a direction to vacate the premises in question and hand over the same to the respondent-landlord.

2. The facts leading to this appeal are that in the year, 1971 Abdul Subhan Khan, Suleman Khan and Mst. Zainab Bai sons and widow of late Jumma Khan as owner/landlord of tenement No. 1/1 in Building No. IIIC-45 on Plot No. S.R. III/33 filed an application under section 13(2)(1) of the then West Pakistan Urban Rent Restriction Ordinance, 1959 (now repealed) against the appellant-tenant, being Rent Case No. l721 of 1971, on the grounds of default in payment of rent and subletting of the appellant filed its written statement wherein, inter alia, a preliminary legal objection was raised as to the maintainability of the application on the ground that no statutory notice under section 30 of the Displaced Persons (Compensation Rehabilitation) Act, 1958 was served. The allegations of default and subletting were also specifically denied by the appellant.

3. On 7-3-1972 a tentative rent order was passed whereby the appellant was ordered to deposit the arrears of rent from June, 1971 to February, 1972 within one month and the future monthly rent before 15th of every calendar month. The said landlord, thereafter, made an application under section 13(6) of the said Ordinance for, striking off the defence of the appellant as it failed to comply with the said order. This application was allowed to by the order, dated 4-12-1973. Against that order an appeal was preferred by the appellant which was allowed and the said order was set aside by the learned Vth Additional District Judge, Karachi, by his order, dated 7-5-1975. A second appeal against this order was filed in the High Court which by its order, dated 10-5-1980 directed the learned Controller to decide the application on the basis of the affidavits/documents (in evidence) which the parties may file. In pursuance of the said direction of this Court the parties filed their affidavits alongwith copies of several newspapers. '1'lle learned Rent Controller after considering the affidavits allowed the said application by his order, dated 21-1-1982 which has now been challenged in this Court in the above appeal.

4. I have heard Mr. I.H. Zaidi learned counsel for the appellant and Mr. Khalid Latif learned counsel for the respondent.

5. Mr. Khalid Latif simply took a preliminary objection, without citing any law, that the appeal as against respondent (Ehsan Elahi) is time-barred. It is pertinent to note that during; pendency of the ejecrment application the above said Subhan Khan, Suleman Khan and Zainab Bai sons and widow of late Jumma Khan disposed of the said property to Ehsan Elahi who was brought on record as applicant No. 4 in the rent case. The present appeal was filed only against Abdul Subhan Khan, Suleman Khan and Mst. Zainab Bai as three respondents on 18-2-1982 without impleading Ehsan Elahi as respondent. An application for rectification /substitution was, therefore, made on 4-4-1982 by the learned counsel for the appellant. It was, inter alia, stated in the said application that respondents namely Subhan Khan, Suleman Khan and Mst. Zainab Bai as respondents in this appeal continued to be the parties in the proceedings as applicants even after the alleged purchase by Ehsan Elahi and through inadvertence the same description was given in the order, dated 21-1-1982 impugned ire the present appeal. It was further stated that in view of the description of the parties in the impugned order and through inadvertance the name of Ehsan Elahi, the subsequent purchaser of the property was not mentioned in the arena of the respondents in this appeal who claimed to be owner/landlord of the property in question. This Court granted the above application ordering the substitution of the name of Ehsan Elahi its respondent subject, however, to the plea of limitation, it available, to the respondent in the appeal (vide order), dated 9-1-1981. Mr. Khalid Latif, however, cited no case-law in support of his contention.

6. Mr. I.H. Zaidi, learned counsel for the appellant relied on two cases reported as Crown through Deputy Commissioner and Collector Jubbulpore v. Chandrathanlal and others A I R 1957 Nag. 8 and Mali Raza v. Pakistan P L D 1965 ( W.P.) Kar.

244. In the Nakpur case it was observed that no question of limitation arises in tire case of devolution of interest and thus the memorandum of appeal was allowed to be corrected accordingly, whereas in the Karachi case a learned Single Judge of this Court observed that when the description was allowed to be corrected it was not a case of adding a new party.

7. Section 22 of the Lin citation Act provides that where, after the, institution of a suit, a new plaintiff or defendant is substituted or added the suit shall as regards him be deemed to have been instituted when he was so made a party. However, the provisions of the said section will not apply to a case where a party is ridded or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. Learned counsel for the appellant submitted that a limitation as provided under section 22(1) of the Limitation Act will run from the date of adding a person as a party to the suit or appeal, if the person included as a party is absolutely stranger to the proceedings. In the present case Ehsan Elahi substituted as respondent No.4 will not be taken to be a person completely stranger to the proceedings and as such the limitation will not run against him as on the date when application for rectification was made or an order was passed by this court.

8. As would appear from P 1, U 1965 par. 244, the rectification application having been allowed the original description of the respondent. was corrected. It was not, therefore, considered to be a case of adding; any party to the ,appeal. An the instant case, it is also apparent on the face of record 4ttat the impugned order passed by the learned Rent Controller against which this appeal has been preferred does not contain the name and description of respondent Ehsan Elahi. It only describes Abdul Subhan Khan, Suleman Khan and Zainab Bai as applicants. It b may at best be said to be a genuine mistake on the part of the Court which also crept into the memo. of appeal filed by the appellant on 18-12-1982. No one should suffer for the act of the Court The preliminary objection, therefore, fails and the appeal against Ehsan Elahi is treated as not time-barred, as it was a case of mere misdescription of respondent.

9. Now, coming to the merits of the case, it is an admitted position that the City of Karachi, at the relevant time, was in the grip of lawlessness and disturbances endangering the lives and properties of the people in the city, in general and certain areas namely the areas of North Nazimabad, Nazimabad, Golimar, Liaquatabad in particular.

10. The rent for the month of June, 1972 was deposited on 18-7-1972 instead of before 15-7-1972. The explanation furnished by the appellant was that there were "Language Riots" in the city in July, 1972 which ultimately led to imposition of curfew on 9-7-1972 in Liaquatabad, Golimar and Nazimabad areas. On 11-7-1972 there was against curfew in Liaquatabad, Nazimabad and Golimar and Pak Colony. Against on 12-7-1972 the curfew was imposed for 24 hours. The curfew hours though relaxed for some time on 13-7--1972, it was again imposed on the same day. There was curfew again on 14-7-1972 in the entire Karachi after 3 p.m. The fact of imposing and reimposing the curfew is a sufficient proof that the conditions in the city and particularly in the area where the deponent Tanweer Ali (the applicant's accountant) was residing who used to deposit rent in the Court were not normal. The curfew might have been relaxed for some hours on 9th July, 1972 and 14-7-1972 but it does not give an impression that the conditions in the city and particularly in the relevant areas returned as normal. It seems that the learned Rent Controller overlooked the fact that the curfew in Nazimabad, Liaquatabad and Golimar did affect the movements of the persons living in North Nazimabad as they had to cross Nazimabad which area is the normal route for entry in and/or exit from North Nazimabad, and even at the relevant time when the curfew hours were relaxed there were cases of rioting, burning and killing as would appear from the newspapers filed by the parties themselves.

11. The learned Rent Controller seems to have been led. away b the fact that same 800 persons deposited the rent with the Nazir on 14-7-1972 and 260 persons deposited on 15-7-1972 and that 120 persons deposited the rent on 17-1-1972. But, it is not clear from the order i C these persons resided in the riot-affected areas or the other areas. However, the facts of each case are to be decided on its own merits. The only thing which is to be seen in the case of default in depositing the rent on the due date is whether the appellant was negligent in depositing the rent on the due date and the default can be termed as wilful? Undoubtedly, there are, circumstances, which go in favour of the appellant so as to sufficiently explain the reason for default in not depositing the rent on the due date. The facts and circumstances as explained in the evidence adduced the parties go to prove satisfactorily that no negligence or wilful default on the part of the appellant can be attributed. A prudent man would think twice before going out of his house in such disturbed conditions and particularly crossing the disturbed areas to come to Court and deposit rent when there is a reasonable apprehension to his life and safety. In my view, the circumstances have been sufficiently explained that the default which occurred for few days was beyond the control of the appellant and cannot be termed as the "intentional default".

12. It is also noticeable that immediately after the city returned to normality the appellant deposited the rent at the earliest on 18-7-1972.

13. For the reasons discussed above, I accept this appeal and set aside the order, dated 21-1-1982 and remand the case to the Court of XIIth Senior Civil Judge and Rent Controller, Karachi to proceed and decide the case on merits.

14. In view of the fact that the rent case was filed in 1971 and it is hanging fire for the last 14 years, I direct the trial Court to decided the case within 6 months from the date of the receipt of this order.' There will, however, be no order as to costs. A.A. Appeal accepted.