1984 PLP 2798 (CLC)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ --‑Ss.13 (2) (1) & 15 (4)‑‑ Ejectment‑‑ Default in payment of rent‑ Tenant failing to make payment of rent within prescribed time and no explanation given by him for not discharging his statutory duty of payment of rent‑‑ Refusal of money orders allegedly sent by tenant to landlord not proved on predecessors‑in‑interest of landlord‑‑ Tenant, held, a defaulter and exercise of discretion in his favour by Rent Controller erroneous in circumstances. Muhammad Yousuf v. Abdullah P L D 1980 S C 298; Muhammad Yousaf v. Abdullah P L D 1980 S C 198 ref. Muhammad Alimullah v. Zia‑ul‑Islam P L D 1973 Kar. 56 rel. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑Ss. 13 & 15‑‑ Ejectment‑‑ Default in payment of rent‑‑ First appellate Court after considering evidence coming to conclusion that tenant committed default in payment of rent‑‑ No misreading or infirmity pointed out in appreciation of evidence by first appellate Court‑‑Finding of fact arrived at by first appellate Court on question of default, held, unexceptionable. Madan Gopal v. Meran Bepari P L C 1969 S C 617 rel. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑S.13 (2) (i)‑‑ Ejectment‑‑Default in payment of rent‑‑ Rent Controller empowered to reject application for ejectment only if he is satisfied that tenant has not committed default‑‑ Once default has been established then unless tenant can show that delay was for reasons beyond his control for payment or tender of rent, Rent Controller, held, cannot reject application and must allow same. Allah Din v. Habib P L D 1982 S C 465 rel. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑S.13‑‑ Default of tenant to pay rent established‑‑ Order of ejectment maintained. This Second Appeal arises out of the Judgment, dated 1‑10‑1980, passed by the IIIrd Additional District Judge, Karachi, whereby the appeal of the respondent was allowed and directed the appellant to vacate the premises and hand over the vacant possession of the disputed shop to the respondent within two months from the date of the order.

2. The brief facts which give rise to this appeal are that the Mst. Zohra Bai, the predecessor‑in‑interest of the respondent, was the land lady of Plot No.SB‑1/85, Mansfield Street, Saddar, Karachi, and the appellant is the tenant in respect of Shop No.1 at the monthly rent of Rs.150 and is carrying on business under the name and style of Faiz Abbasi Hair Cutting Saloon. It was averred in the application that the appellant committed default for the period from March, 1972 to December, 1972 amounting to Rs.1,500, and also obtained water connection from K.M.C. without permission and managed the bills to be debited in the name and account of the said Mst. Zohra Bai. It was averred that the appellant issued a bogus cheque and sent the same with registered letter which was dishonoured. The appellant filed written‑statement and denied the various statements. He averred that the application was filed with ulterior motives and cheque was also got it managed to be dishonoured. He also got the water connection with her permission. During the pendency of the application Mst. Zohra Bai died and her legal representatives were brought on record who are the present respondents. The Rent Controller framed the following Issues on 6‑11‑1974. "(1) Whether the opponent has committed default? (2) Whether the opponent without the permission of the applicant had obtained water connection and charges thereof are being debited in the account of the applicant? (3) What should the order be?"

3. Hussain Bhai, respondent No.2, was examined on behalf of the respondents and the appellant examined himself at his own witness. Besides him, Irfan Ahmad was examined as D.W.2, who was incharge of the United Bank Limited, Mansfield Street Branch, Karachi, Abdul Waheed as D.W.3, Post Master of Empress Market Post Office, D.W.4 Hanif Khan, Inspector of Saddar Post Office, and D.W.5 Abdul Rahim, father of the appellant.

4. The learned 1IIrd Rent Controller after recording evidence of the parties and hearing the arguments of the learned counsel for the parties, by an order, dated 7‑9‑1977 dismissed the ejectment application.

5. The respondents being aggrieved by the said order, dated 7‑9‑1977 preferred Appeal No.319 of 1977 which was ultimately transferred to the Court of IIIrd Additional District Judge, Karachi. The learned IIIrd Additional District Judge, after hearing the arguments of the learned counsel for the parties by a judgment, dated 1‑10‑1980, allowed the appeal and directed the appellant to hand over the vacant possession of the disputed premises to the respondent within a period of two months from the date of the judgment.

6. The appellant being aggrieved by the judgment, dated 1‑10‑1980, has preferred this appeal on the facts and grounds mentioned in the Memo. of Appeal.

7. Mr.Khuda Bux Umrani, the learned counsel for the appellant, has raised the following contentions: (i) The agreement is not enforceable. (ii) The default is not wilful.

8. The learned counsel for the appellant has contended that the agreement Exh.24 was not enforceable as which had expired long ago and the appellant had become a statutory tenant and the conditions contained in the said agreement were no longer binding on the parties as their rights and obligations in respect of the payment of rent were to be regulated in terms of section 13(2)(i) of the then Ordinance of 1959 or section 15(2)(ii) of the Ordinance of 1979. In support of the above contention Mr. Khuda Bux Umrani has referred to case of Muhammad Yousuf v. Abdullah P L D 1980 S C 298.

9. Mr. Umrani has also contended that the agreement Exh.24 has no legal effect and is to be ignored as the same was not registered as required by section 17 clause (d) of the Registration Act.

10. On the other hand, Mr. Wajihuddin, the learned counsel for the respondents, has contended that the said agreement is not an agreement for 11 months but it was executed by the parties in the face of the existing rent laws and the period of tenancy is in perpetuity. The same was not only produced by the appellant's father but the same was also duly exhibited. No objection can be raised in the Appellate Court. The learned counsel for the respondents has pointed out that the law laid down in Muhammad Yousuf's case P L D 1980 S C 298 was not really attracted to the present case because the ejectment application had been filed in respect of the default which had taken place during the currency of agreement and not after its expiry as was the case in Muhammad Yousuf which was relied upon as a precedent. In the present case, not only a clear default both in terms of the contract and in terms of the statutory provisions was proved. Even in the case of Mohammad Yousuf v. Abdullah PLD 1980 S C 198 it was held that "an agreement can only be made by the consent of the parties and if an agreement is for a fixed period, it comes to an end on the expiry of the agreed period unless it is renewed by both the parties". The agreement is not a dead agreement but the agreement is still subsisting.

11. The ejectment application was instituted on 22.12.1972. The respondents alleged that the appellant defaulted to pay rent since March, 1972 to December, 1972, amounting to Rs.1,

500. The appellant stated that the said Mst. Zohra Bai with mala fide intention and ulterior motives had been refusing to accept rent from the appellant/opponent without any reasonable cause since March, 1972 to December, 1972. In the aforesaid circumstances, the appellant had no alternative but to remit the same orders which ,were refused by her. Thereafter, he sent Rs.1,350 through a cheque which was dishonoured. The respondent No.2 was examined and a suggestion was made in cross examination about money orders which suggestion was denied. The appellant in his own deposition before the trial Court stated that he sent three money orders and he produced money order coupons alongwith postal receipts as Exhs. 12, 13, 14, 15, 16 and

17. These money-orders were not accepted by the said Mst. Zohra Bai, and after that he sent the rent through a cheque. The appellant admitted that money order coupons shown in the name of Zohra Bai and her address, were not shown in the coupons. D.W.No.3. Abdul Waheed, Postmaster, deposed that Exhs. 12 and 13 did not show the endorsement of the postman of the "refusal of the addressee". D.W. No.4 Muhammad Hanif Khan, Inspector in Saddar Post Office, deposed that Exh.14 did not show the endorsement of refusal. Those money orders were sent in May, June and July, 1972.

12. The burden was on the appellant that the rent was remitted through money orders which were refused by the said Mst. Zohra Bai. The appellant did not examine the postman of the Mansfield Street, Saddar, Karachi. He even did not care to produce the money order coupons with the endorsement "refusal" thereon as such it cannot be presumed that the said money orders were refused by the predecessor‑in‑interest of the respondent. The cheque was dishonoured by the bank with the remarks "drawer's signature differ". The cheque was sent in the month of November, 1972 for clearing the arrears of rent for the period March, 1972 to November, 1972. Admittedly, the appellant did not send any money order in the months of August, September and October, 1972. The admitted position would be that, September appellant did not pay the rent from March, 1972 and onwards till 21‑11‑1972 on which date a cheque was drawn on United Bank Limited for al sum of Rs.1,350 which was dishonoured. It is proved that there has beer no payment from March, 1972. The money order which was sent after three and half months does not absolve the appellant from being a defaulter nor does it create the circumstances that he was very anxious to pay the rent and that he left no stone unturned in the efforts to pay rents. The contention raised by the appellant is without force. The respondent No.2 denied in his statement on Oath that the money orders were refused by the said Mst. Zohra Bai. It was obligatory on the appellant to have examined the postman to prove refusal of money orders by her. The respondent No‑2 in his statement on Oath before the Court categorically stated that his mother did not refuse to accept the money orders and the suggestion made to him in cross‑examination that she never refused to accept the money orders when the same were offered to her. In this state of evidence in my view the presumption regarding refusal of money orders on the predecessor- in‑interest of the respondent was sufficiently rebutted and burden of proving refusal of money orders could only be discharged by calling the postman concerned who allegedly made the endorsement of "refusal" on the money order coupons. I, therefore, hold that refusal" of the money orders was not proved on the predecessor‑in‑interest of the respondents.

13. The learned IIIrd Additional District Judge held as under:‑ "There is absolutely no doubt that the respondent was not paying rent from March, 1972 or at least July, 1972 even if his plea that he attempted to offer the rent by money‑order is accepted. Undoubtedly, ejectment for default in payment of rent is dis cretionary which lies with the Rent Controller, but the law is well‑settled that discretion is neither absolute or unbridled and, thus, should be exercise judicially. Order for ejectment should normally follow in case of default in payment of rent unless circumstances exist for exercise of discretion otherwise. In the present appeal, I do not find any factor or good ground and the learned counsel for the respondent has also not mentioned any such circumstance, the benefit of which should be given to the respondent. His sole contention is that there was only one default and it seems that learned Rent Controller was also impressed by this point when he mentioned in the impugned order that this is only single occasion in March, 1972 when the break in the continuity of payment took place. The non‑payment of rent for the months of August, September and October, 1972 which fact has even been conceded by the learned counsel for the respondent has not been taken into consideration by the lower Court. There is nothing in evidence to suggest as to what precluded the respondent to tender the rent by money order immediately after the first alleged refusal to accept the rent by the landlady in April, 1972 or to approach the Court to deposit the arrears of the rent. It appears that the default was due to culpable negligence for which the respondent has to suffer. As mentioned above, there exists in the present case no circumstances which could warrant the exercise of the discretion in favour."

14. The rent for the month of March and onwards was not paid. Even a cheque, dated 21‑11‑1972 was drawn on United Bank Limited which was dis honoured. No explanation has been furnished by the appellant for non‑payment of rent for the months of August, September and October, 1972. The contention of the learned counsel for the appellant that the defaults were condoned by the learned Rent Controller, who rightly exercised discretion in favour of the appellant, cannot be accepted. The non‑payment of rents for the months of August, September and October, 1972 for which no explanation has been given. As observed in Muhammad Alimullah v. Zia‑ul Islam P L D 1973 Kar 56, the discharge of the statutory obligation by the tenant to pay rent is a condition of his protection and he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from doing so as would have prevented a reasonable man from discharging his obligations. Mr. Dorab Patel J. held as follows:‑ "Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13, if he was not able to trace his landlord's whereabouts, despite reasonable efforts or if there was a genuine dispute about the landlord's title. Similarly, as the Ordinance imposes an obligation on the tenant to pay rent as it falls due, he cannot be allowed to escape this obligation by involving discretion." In the instant case, as already pointed out no such circumstances exist, and in fact no attempt has been made by the appellant to establish the existence of such circumstances. I am, therefore, of the opinion that, the appellant was defaulter and the learned Rent Controller erroneously exercised discretion in his favour.

15. The First Appellate Court on the appeal of the respondents came to the conclusion that default committed by the appellant was wilful. As a result of the above finding the order of the learned Rent Controller was reversed by the learned IIIrd Additional District Judge, and the application filed by the respondents was allowed.

16. Mr. Khuda Bux Umrani, the learned counsel for the appellant has contended that the order of the Fist Appellate Court holding that there was default on the part of the respondent is contrary on the record.

17. Mr. Wajihuddin, the learned counsel for the respondents, on the other hand, has urged that the reasoning given by the First Appellate Court for reversing the findings of the Rent Controller is convincing and since the findings of the First Appellate Court relate to question of facts, they are binding on .this Court on appeal. The Honourable Supreme Court of Pakistan in the case of Madan Gopal v. Maran Bepari P L D 1969 S C 617 held as follows:‑ "If the finding of fact reached by the First Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will he immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the First Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded."

18. In the present case, the First Appellate Court, after considering the evidence, came to the conclusion that 'the appellant committed default in payment of rent since March, 1972. The First Appellate Court has dealt with the evidence strictly in conformity with the law discussed above and no infirmity was pointed out in appreciation of evidence. No misreading of the evidence had also been pointed out by the learned counsel for the appellant. The findings of fact already indicated are, therefore, un exceptionable. I find that the First Appellate Court had obviously not, misdirected itself on the point of default.

19. The Honourable Supreme Court of. Pakistan in the case of Allah Din v. Habib P L D 1982 S C 465 held as follows:‑ "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959 but it must be appreciated that non‑payment of rent is a negative fact, therefore, if the landlord appears in Court and states on Oath that he had not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle, thus, stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27(b) of Specific Relief Act, 1877, in the case of Khairunnisa v. Muhammad Ishaq. Applying the principle to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in second appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises."

20. The Hon'ble Supreme Court of Pakistan has, therefore, decided in the aforesaid judgment that there was no plausible explanation for default.

21. I see no illegality has been committed by the First Appellate Court in exercising jurisdiction. It may be observed that if there is an admitted default, the Rent Controller has to order ejectment of the tenant. It may be noted that under section 13(2)(i) of the Sind Urban Rent Restriction Ordinance 1959, the Rent Controller is empowered to reject the application only if he is satisfied that the tenant has not committed default. Once default has been established, then unless the tenant can show that the delay was for reasons beyond his control for payment or tender of rent, the Rent Controller cannot reject the application and must allow the same.

22. For the reasons given above, I am of the opinion, that there is no merit in the appeal and, accordingly, I would dismiss the same with no) , order as to costs. The appellant is directed to handover the vacant possession of the disputed shop to the respondents within four months from the date of this judgment. In the circumstances of the case, the parties will bear their own costs. M.Y.H Appeal dismissed.