1983 PLP 879 (CLC)

In the impugned decision of the First Appeal the learned IInd Additional District Judge, Larkana accepted the findings of fact regarding the contractual tenancy and default in payment of rent after discussing the evidence on record in detail. On behalf of the appellants the following contentions have been raised (1) That Gurmukhdas predecessor in interest of the appellants was a statutory tenant having been in possession since 1947 paying rent at Rs. 12 p. m. (2) That the entire case had been misjudged due to consideration of Enquiry Card (Exh. 15) in the record of proceedings before the Rent Controller as the same related to Shop No. 194 and not to 861 Ward 'A'. In the Card Kishnomal was shown as person in possession. (3) That in any case there was no default in payment of rent in view of the provisions of section 13(2)(1) of the Rent Restriction Ordi nance, 1959. With regard to the identity of the shop, in the application under sec tion 13 of the Urban Rent Restriction Ordinance, 1959, in the very first paragraph it was stated that the applicant was the owner and landlord of shop bearing City Survey No. 861, Ward 'A' Shahdadkot. In the extract from the property Register Card 'A' filed with the application Shop No. 861 was mentioned. In the preliminary objections filed by the appellants it was stated that nothing is to be said regarding contents of Para. No.

1. In the original notice issued by Advocate for ‑Haji Qamaruddin produced by the appellant and attached to the objections it is stated that his client is landlord and owner of the shop bearing City Survey No. 861 Ward 'A' Shahdadkot. In the reply no dispute about the identity of the shop is raised and it is obvious that the same shop was being referred to by the parties. Again in lease agreement admittedly executed by deceased Gurmukh das Shop No. 861 Ward `A' is mentioned. The enquiry from office of the Custodian no doubt mentions D. S.. No. 194 being in occupation of Kishnomal but Ward No. A is also mentioned and building No., is left blank. However, the Provisional Transfer Order produced by Haji Qamaruddin mentions in the Schedule of property as under:‑ "Shop No. 194/861 Ward `A', which goes to show that the Inquiry Form already mentioned also refers to the same shop. It is, therefore, clear that the identity of the shop was not disputed nor was such an issue settled and evidence led. The plea about identity of the shop is presumably raised as an afterthought due to the fact that in Inquiry Card no building No. is mentioned. It is being pressed for the first time in second appeal though it is a question of fact. Mr. Ahmed Saeed Qureshi, the learned counsel for respondents has relied upon decision of the Supreme Court in Atta Hussain Khan v. Muhammad Siddsgue Khan and others (PLD1979SC965), in which it was inter alia observed that the High Court was justified in not entertaining a plea which was never raised by the defendant in his written statement and in connection with which no specific issue was at all framed. Mr. Burney, the learned counsel for the appellants has relied upon decision of their Court in Second Appeal No. 159 of 1977 on the point regarding dispute about identity of property. The facts of that case however were different as the main point urged before the Ist Appellate Court was that there was no identity between property transferred to respondent and the tenements in the occupation. of the appellants and the Ist Appellate Court while noting that .the property transferred to the respondent and the properties in occupation of appellants bear different numbers and the transfer document did not bear the tenement numbers of the premises in occupation of the appellants, had rejected the contention of the appellants on the ground that the matter stood concluded ‑by admission made by the learned counsel for the appellants before the Rent Controller that respondent was the owner of the premises occupied by the appellants. The counsel for the respondent in that case was unable to refer to any evidence on the record from which it would positively be concluded that the tenements in question were included in the property transferred to the respondent. It was therefore, held that looking to fact that appellants in their written statements had admitted that they were in occupation of the tenements coupled with .firm denial on their part about the existence of relationship, of landlord and tenant between the parties, the Ist Appellate Court should not have relied upon the concession allegedly made by counsel for appellants that the respondent was transferee of the tenements in occupation of the appellants. The facts of the instant case are different and there is clear documentary evidence such as the P. T. O. extra that Haji Qamaruddin had purchased the shop in question and for reasons already given, it is not a case of mistaken identity of the shop. The main contention on behalf of the appellants that Gurmukhdas was in possession of the shop since before 1947, if found to be correct would make the tenancy a statutory one. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 reads as under:‑ "Section

30. Protection of certain occupants.‑(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947, in any industrial concern, Cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer: Provided that:‑ (a) It shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for other properties in the locality generally; and (b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowlegment due). . (2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant. (3) Nothing in proviso (b) to subsection (1) shall apply to a tenant (i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledge ment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or (ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, who owns a house or shop, as the case may be. (4) On the expiry of the period mentioned in proviso (b) to subsection (I) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to sue relationship:" The provisions of section 30 aforesaid have been quoted In extenso as the same have bearing on the pleas raised on behalf of the appellants. The question whether the tenancy was statutory or contractual is a question of fact and both the learned Rent Controller and the first appellate Court have given concurrent findings with regard‑to the issue holding that Gurmukhdas held contractual . tenancy. The finding was arrived at by considering both the oral and documentary evidence produced by the parties. It is true that the fact that the Enquiry Card of the Office of Custodian Evacuee Property (Exh. 15 of the record proceeding of the Rent Controller) was also considered in which Kishnomal son of Sanjomal was shown to have been in possession of the shop after 1947, and the shop is mentioned as D. S. No. 194 Ward 'A', but firstly as already stated the plea of identity of the shop was never raised and secondly the P. T. O. in the `Schedule of Property' mentioned shop 194/861 Ward `A' as the shop transferred to Haji Qamaruddin. The learned Rent Controller giving reasons for his finding observed that although Haji Qamaruddin had produced the aforesaid documentary evidence, on behalf of. the heirs of Gurmukhdas, no such evidence was forthcoming. He considered the evidence of the four witnesses examined on behalf of the heirs of Gurmukhdas to be interested and unconvincing. In the impugned judgment of the first appellate authority the same evidence was reconsidered and it was observed that if Gurmukhdas had really been in possession of the shop in dispute he should have been in a position to produce receipts of rent paid to the Custodian of Evacuee Property by him. The learned Rent Controller and the learned first Appellate authority also considered the documentary evidence with regard to the execution of the lease deeds (Exhs. 16 to 19) yearly by Gurmukhdus starting with the lease deed in 1963. It was held by the learned Rent Controller that it was for the heirs of Gurmukhdas to show that he was in the possession of the shop since 1958 which they had failed to do. The first appellate Court examined in detail the oral evidence of the witnesses examined by the heirs of Gurmukhdas on the point of possession of the shop and discarded the same as interested and unconvincing. He, therefore, agreed with the finding of the Rent Controller with regard to the issue. He, however, observed that the complication had arisen as in the Rent application, Qamaruddin had stated that Gurmukhdas was tenant in the shop since 1‑10‑1968 for the period of a year. He had suppressed the fact with regard to the previous agreements between the parties and he had further suppressed the fact that he had given notice to Gurmukhdas (Exh. 22) which fact be admitted in cross‑examination. The first appellate Court observed that it was true that on 17‑6‑1962, Gurmukhdas was in possession of the shop but before that date there is no proof or evidence that he was in possession before 20th December, 1958, as claimed by him. It was further observed that no rent receipts of the Custodian had been produced to show that Gurmukhdas had been in possession before 20th December, 1958, In Gul Afzal Khan v. Muhammad Hanif Arif (P L D 1979 Lah. 388), it was inter alia held that the concurrent finding of fact cannot be challenged in second appeal u unless the same is based on a misreading of evidence or material evidence is ignored. For the reasons already given, no such defect in the concurrent findings of the two Courts below has been pointed out. The contention of Mr. Burney, the learned counsel for the appellants that there was no default in the payment of rent was based firstly on the argu ment that since Gurmukhdas was a statutory tenant and used to pay Rs. 12 as rent to the Custodian Department, and further, that as under the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the tenant in possession of properties transferred to some other person was to be a tenant on the same terms and conditions as to the payment of rent, the demand of rent at the rate of Rs. 40 p. m. being excessive and against the statutory provision could not have been charged and therefore, the payments made at the rate of Rs. 40 p. m., if counted towards the alleged arrears which show that there are no arrears of rent due to the respondents. Secondly, it was argued by him that in view of the provisions of sec tion 13(2)(1) of the Urban Rent Restriction Ordinance, 1959, there could be no arrears of rent if the same was paid within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any agreement, within sixty days from the period for which the rent is payable. With regard to the first argument, it is hereby stated that in view of the concurrent finding with which I agree, that the tenancy was contractual tenancy, the argument has no weight but even if it had been satisfactorily) proved that Gurmnukhdas was in possession of the shop before the 20th day of December, 1958, since Qamaruddin had purchased the . property in 1960 and given notice of the transfer on 17‑6‑1962 (Exh. 22) clearly a period of six years from the date of notice had .passed before 30‑9‑1968 when the lease in which the rent was fixed at Rs. 40 p. m., was executed by Gurmukhdas on the strength of which the tenancy was started on 10‑I‑1968 for a period of one year, the rent fixed was legal and proper. With regard to the 1lnd argument, since there was agreement of tenancy, he had to pay the rent due by him with 15 days of the time fixed herein. As observed by the First Appellate Court the appellants had not been able to account for payment of rent for the months of December, 1968, add January, 1969, even if it is presumed that rents for the months of February, 1969, to September, 1969, were correctly tendered. Appellant Arjandas had admitted that he had not sent rent of January, 1969, by money‑order, and, as correctly observed by the first appellate Court the postal receipts do not show that the appellants had sent rent for the month of January, 1968. Under the last agreement of lease by Gurmukhdas the rent was payable in advance and therefore it is correct position that no rent for the month of Janu ary, 1968, was paid or tendered. I, therefore, find no merit in this second appeal which is dismissed with no order as to costs. The appellants are hereby ordered to put the respondent in vacant possession of the shop premises within two 'month's of the date of this order. M. Y. H. Second appeal dismissed.