1993 PLP 1726 (MLD)

Now, appellate powers are exercisable under section 21 of the Sindh Rented Premises Ordinance, 1979, by this Court without any express restrictions or limitations. There is no room for technicalities in the exercise of such jurisdiction except the rule that where without saying more jurisdiction is conferred on an already established Court, particularly when jurisdiction is so conferred on a superior Court. such Court may take recourse to the procedure it normally follows provided that the larger principle of advancing the remedy and suppressing the mischief is not lost sight of. Thus I agree that even if sufficient cause within the four corners of Order 41, rule 21, C.P.C. is not shown for rehearing of the appeal, allowed Ex Parte in the absence of a respondent, the respondent may yet be heard for seeking modification of the determination, if justice of the cause so requires. This comprehensive order is accordingly passed taking all relevant factors into consideration, even though alb case for recall of the order dated 2‑6‑1992 in totality has not been made out. In the resultantly limited context learned counsel, taking recourse to the additional material brought on record, has pointed out that on 6‑10‑1987 the tenant had filed Suit No. 1808 of 1987 before the learned IXth Civil Judge, Karachi (South). A perusal of the plaint in that suit shows that the plaintiff there had pleaded that he was tenant of one Russi H. Dinshaw in respect of the disputed property, who had fled Rent Case No. 333/1982 against him on the ground of default which was pending before the Vlllth Senior Civil .fudge and Controller, Karachi, The tenant, however, allegedly was depositing rents in M.R.C. No 5052 of 1982. It was urged that Mehmood Hussain, respondent, was claiming to have purchased the property and was bent upon forcibly evicting the plaintiff‑tenant in collusion with the said Russi H. Dinshaw, both being joined as defendants in the suit. One such attempt to dispossess was reported to the Preedy Police Station on 17‑9‑1987. The tenant, being entitled to peaceful occupation, claimed Permanent Injunction against forcible eviction. The plaint was accompanied by an application for interim injunction. Counter-?affidavits to such application in the suit were filed by the two defendants. which indicate that the disputed property was purportedly sold to respondent? Mehmood Hussain by Russi H.Dinshaw on 10‑9‑1986. The allegations of forcible entry were denied by the two defendants in the suit and, therefore, on 3‑2‑1988 the suit was disposed of by the learned IXth Civil Judge, observing that the "defendants will not eject the plaintiff from the suit premises except in due course of law". Another set of proceedings from which implied knowledge of the rent case involved here is similarly sought to be deduced is Suit No. 1682 of 1987, a suit filed by some eight purported sub‑tenants of the appellant here against Russi H. Dinshaw and Mehmood Hussain as well as tenant‑Fazal Hussain. Paragraph 7 in such suit, instituted on 19‑9‑1987, is material wherein it is maintained that Russi H.Dinshaw and Fazal Hussain had compromised their disputes and Mehmood Hussain had purchased the property, leaving no scope for FaZA Hussain to deliver the property in disregard of the purported rights of the alleged sub‑tenants. Significantly, in the plaint to such suit the name of Fazal Hussain carries a wrong parentage and his address too is shown to be of Lahore. It is a position admitted by Mr. Z.U. Ahmad that whereas the landlords)/owner(s) were served tenant‑Fazal Hussain was never served in the suit and that the suit itself was dismissed for non‑prosecution. Mr.S.Maqsoom Hussain Rizvi for Fazal Hussain‑tenant has urged that the plaintiffs of Suit No. 1682/198'' were never sub‑tenants of the property and were merely the' workers in the tenant's garage, known as Allahwala Garage. However, the endeavour on the part of Mr. Z.U. Ahmad by referring to the foregoing two sets of proceedings has been to show that if the respondent ?landlord had not served Fazal Hussain‑tenant with notice under Section 18 of the Rented Premises Ordinance, 1979, formally conveying the factum of transfer, the latter would be fixed with notice as contemplated in Pakistan National Shipping Corporation v. General Service Corporation 1992 SCMR 871, which, however, is an authority dispensing with the technicality of a Regd. AD notice and opines that a simple notice with due knowledge would serve the purpose. That, in any case, is beside the point, for even where such a notice is proved and found valid that fact is not substitute of notice of eviction proceedings, which is what is sought to be done by making reference to the two sets of proceedings. Another aspect of the case is that in the counter‑affidavit, which was belatedly brought on record, after the disposal of this appeal, it was maintained that the appellant‑tenant had resolved the dispute through a settlement in these terms:‑ (Sd. in English) Fazal Hussain" It is claimed by the respondent‑landlord that his attorney, Khuwaja Saleem, pursuant to the said agreement, on his behalf, "paid Rs.3,50,000.00 in cash sometime in October/November, 1990" and it was in view of this arrangement that the tenant was avoiding to receive process in the rent case. In the first place, it has already been found, per order dated 2‑6‑1992, that the tenant had not avoided the process at all and that the bailiff of the Court could not even locate his address at the time service was attempted. In the second place, the tenant's version, in his rejoinder, is that Khuwaja Saleem was a broker and the correct facts as regards the above‑reproduced writing are as under:‑ "In or about June, 1987 the Respondent alongwith 3/4 persons including one estate broker Khuwaja Saleem came to my garage and told me that he was negotiating for the purchase of the premises in question from its owner but wanted vacant possession of the premises and as such asked me about my requirements. I told him that if he was interested in getting the vacant possession then he must pay the prevailing pugree amount to me. However, after much discussion it was agreed that, if he paid Rs. 7,00,000.00 (Rupees seven lacs) to me then I would vacate the premises. The said estate broker Khuwaja Saleem took in writing separately from both of us to keep it as promise by both of us. I gave it in writing in good faith and bona fide belief as a gentleman's agreement. The respondent, however, backed out from the promise and did not pay a single penny to me. On the other hand he alongwith my landlord Mr. Dinshaw tried to eject me by force for which I reported the matter to the police and also filed Suit No.1808 of 1987 for Injunction against Mr. Dinshaw and the Respondent. Interim injunction was granted by the learned Court and later on the respondent and Mr. Dinshaw both filed suit written statements, in the suit and gave their undertaking in their W.S. that they would not eject me by force. On their statements the suit was disposed of as decreed. It is vehemently denied that in first instant I demanded Rs.3,50,000.00 to remove the alleged unauthorised persons from the premises. the allegations are totally false that the respondent and or Khuwaja Saleem asked me as to why I was not taking summons from the Court and I, told them that I would do so after having the premises vacated by the unauthorised persons. The allegations are concocted and frivolous. It is further denied that Khuwaja Saleem or the Respondent paid me Rs.3,50,000.00 in cash in any manner at any time to me:' The version of the respondent‑landlord for several reasons inspires little confidence. For one thing, the above writing does not bear any date and in view of what has been stated on the obviously scanty knowledge of the alleged sub‑tenants, who were plaintiffs in Suit No. 1682 or 1987, it could have been the quoted arrangement, which was referred to in paragraph 7 of the plaint in the suit. Such, therefore, may relate back to the year of Suit No. 1682 of 1987, as urged by the tenant. Next, the respondent‑landlord is not aware even of the exact month, when alleged payment of Rs. 3,50,000.00 was made, what to say of the specific date of such payment. Admittedly, no receipt was passed on regarding such payment, a highly suspicious circumstance, and, therefore, by no stretch of reasoning the alleged payment may be taken as granted. Last but not the least, if such a contract had been concluded and was fraudulently not acted upon and, to boot, the tenant, on that score, was fighting shy to make Court appearance the respondent‑landlord was expected to have brought the fact to the notice of the learned Controller in the rent case, which obviously, for reasons best known to him, was not done. Even so, in order to further test the bona fides of the respondent‑landlord I enquired from Mr. Z.U. Ahmad whether the landlord would be prepared to deposit the alleged balance sum of Rs. 3,50,000.00 whereupon the restitution of the property could be stayed to which reply was that since eviction had already been obtained there was hardly any point in making any more payment. Mr. S. Maqsoom Hussain Rizvi, on his part, also declined the suggestion, maintaining that if deposit was to be ordered that had to be of the whole of Rupees seven lacs no part of which, allegedly, was ever made over to the tenant, as averred in the above‑quoted para. from the rejoinder. In this state of the record it cannot be found that the tenant was aware of the pendency the rent case and deliberately kept out of the way. The controversy does not end here. The rent case from which this appeal arises was instituted on 17‑12‑1989 and the Ex Parte order of eviction was obtained on 12‑12‑1990, the tenant being physically uprooted on 4‑4‑1991. On 2‑6‑1992 this appeal was allowed and the case was remanded, requiring the parties to attend before the learned Controller for further proceedings on 27‑8‑1992. None, according to Mr. S. Maqsoom Hussain Rizvi, appeared before the Controller on that date, when the case was adjourned to 8‑10‑1992. It was on 8‑10‑1992 itself that Mr. Kambar Ali desired to see the file of this appeal m the office and learnt that the same stood disposed of per order dated 2‑6‑1992. On 8‑10‑1992 according to Mr. S. Maqsoom Hussain Rizvi it was the tenant alone who had appeared before the learned Controller from 8‑10‑1992 the learned Controller, however, adjourned the matter to 21‑10‑1992 when, only the tenant appearing and the landlord remaining absent, the rent case was dismissed for default. Even if all the averments from the side of the respondent‑landlord were accepted and there was no other flaw in his case, at least after 8‑10‑1992 some effort should have been made from his side to put in appearance before the learned Controller where he had been directed and required to attend on 27‑8‑1992 and where he had not appeared, allegedly, because he did not know that the case stood remanded. On appearance he need have done no more than seek an adjournment to pursue his remedy in this Court. That was the minimum expected of a diligent and reasonable litigant. The landlord's avoidable absence before the learned Controller in the foregoing circumstances and the final disposal of the rent case leaves little scope in relation to any further orders at this level because the very rent case, which at one time was remanded, is no longer pending. To make matters worse, admittedly, to date, no restoration application of the case has been made before the learned Controller. Consequently, the order of remand having merged in the order of disposal of the rent case, the application for revival of this appeal is, in effect, infructuous. In the end it remains to be observed that ex parte orders of eviction which somehow get implemented to total absence of tenants, have become common‑place these days. It is a matter of experience that proceedings are being frequently engineered and absolutely one‑sided ex parte evictions are being obtained in total disregard of rights. As the recitals in the order of 2‑6‑1992 would show this may have been one such case. In such‑like matters, Courts at every level have to be extremely cautious in assessing the tendentious proceedings. This was the only reason why this matter was heard at length on 2‑6‑1992 and again today so that injustice, if any, is not allowed to perpetuate itself, Accordingly, I have seen no justification for recall of the order dated 2‑6‑1992 and have dismissed CMAs 1105/92 and 1106/92, reasons wherefore are recorded, as above. I have heard Mr. Z.U. Ahmad at length on C.M.As. 1105/92, 1106/92 and 30/1993 the last of which is fixed for order in circumstances appearing in the order dated 14‑1‑1993, counter‑affidavit, in the meantime, having been died. Learned counsel for the respondent‑landlord does not assail the order dated 2‑6‑1992 on merits and the brunt of his argument has been confined to modification of that order only to the extent that during the pendency of the rent case, upon remand, possession be not. handed back to the appellant?-tenant, as directed in the said order. For reasons which would be recorded later I allow CMA No. 30/1993, an application through which some additional documents are sought to be brought on record from the side of the respondent‑landlord. As regards CMAs 1105/92 and 1106/92, the first pertaining to recall of the order dated 2‑6‑1992 and the second relevant to seeking stay as regards the implementation of such order, both those applications are dismissed. H.B.T./F‑211/K Order accordingly.