2017 PLP 361 (YLRN)

MRS. ASHRAF JAHAN, J.

This Constitutional Petition is directed against the Judgment dated 02.11.2013, passed by learned IIIrd Additional District Judge, Karachi West in F.R.A No.13/2013, whereby the appeal referred by respondent No.2 was allowed by setting aside the order dated 01.03.2013, passed by learned Rent Controller, Karachi West in Rent Case No.178/2009 and the ejectment application filed by the petitioner/Landlady was dismissed.

2. The facts, which form the background of this petition, are that the rent case for ejectment of respondent No.2 under section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance, 1979"), was filed by the present petitioner being the owner/landlady of Plot bearing No. B/73, SITE area, Karachi, admeasuring 0.44 acres (2130 Square yards), by virtue of registered lease deed dated 15.05.1963 executed in her favour by the S.I.T.E. The petitioner in the capacity of landlady in pursuance of settlement agreement between the parties arrived at in C.P. No.242/2004 let out the premises for use as petrol pump and service station to the respondent No.2 on rent at the rate of Rs.25,000/- per month, payable in advance each month, through a registered tenancy agreement dated 31.05.2008. It is the case of petitioner that the Respondent No.2 initially paid the advance monthly rent w.e.f. June 2008 through cheques to the petitioner upto September 2008, but subsequently from the month of October, 2008 failed to pay monthly rent to the petitioner, therefore, on 23.12.2009 rent case No.178/2009 for eviction was filed against the respondent No.2 on the ground of default in payment of rent. The above rent case was contested by respondent No.2, as per its case a registered lease agreement dated 31.05.2008 was executed between the parties for a period of 30 years effective from November 2007, the petitioner initially accepted rent on monthly basis, but subsequently refused to accept the same on monthly basis and demanded rent on yearly basis. Having no other option the respondent No.2 started depositing rent in MRC No.14/ 2010 and thus nothing is due against him. The above rent case ended into an ejectment order in favour of the present petitioner vide order dated 01.03.2013, whereby respondent No.2 was directed to handover the peaceful vacant possession of the premises to the petitioner within sixty (60) days from the said order. Being aggrieved and dissatisfied with the above order, respondent No.2 filed F.R.A No.13/2013, which was allowed vide order dated 02.11.2013, and the order passed by learned Rent Controller was set aside.

3. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that in the present case the respondent No.2 has committed default, therefore, the learned Rent Controller has passed the ejectment order in accordance with law, but subsequently the learned appellate Court wrongly held that the petitioner had no cause of action to file ejectment application and thus completely overlooked and ignored the material facts that the respondent No.2 himself admitted during cross examination that the default has been committed in payment of monthly rent, therefore, the order dated 02.11.2013 is liable to be set aside. It is further contended that the relationship between the petitioner and respondent No.2 is that of landlord and tenant and the case is covered under Ordinance, 1979 and it has been wrongly agitated by the respondent No.2 that the lease agreement executed between the parties is a lease under section 105 of the Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882"). Infact lease as defined under section 105 of the Act, 1882 is transfer of a right to enjoy such property, however in the present case not even right sublease had been transferred to the respondent No.2. The subject, premises was given to the respondent No.2 only for the purpose occupation and use as a petrol pump. The agreement between the parties was for a specific purpose, hence it cannot be assumed to have transferred any ownership rights in favour of the respondent No.2. He has vehemently urged that the respondent No.2 lastly paid the rent for the month of September 2008 and thereafter failed to pay the monthly rent and finally lump sum rent was deposited in MRC No. 14 of 2010, thus, this admitted default in payment of rent is sufficient to prove the case against the respondent No.2. In support of his case he has relied upon the case laws reported as Mrs. Zehra Begum v. Messers Pakistan Burmah Shell Ltd. (PLD 1984 Supreme Court 38), Pakistan State Oil Company Ltd., Karachi v. Pirjee Muhammad Naqi (2001 SCMR 1140), Muhammad Sharif and another v. Muhammad Afzal Sohail and others (PLD 1981 Supreme Court 246) and Haji Mohibullah & Co. and others v. Khawaja Bahauddin (1990 SCMR 1070).

4. On the other hand, it is submitted by learned counsel for respondent No.2 that it is not a simple case covered under the Ordinance, 1979 as no tenancy agreement was executed between the parties, but it was a lease agreement, therefore, the learned Ist Appellate Court has rightly decided the case in favour of respondent No.2. The present case clearly falls within the ambit of Transfer of Property Act and a registered subsisting lease agreement can only be cancelled/revoked/annulled by way of civil suit and not by way of a rent case under the provisions of Ordinance, 1979. The learned Rent Controller, therefore, had wrongly assumed the jurisdiction regarding a permanent/long term registered lease deed and therefore the order of Rent Controller was absolutely illegal and the appeal filed by respondent No.2 was rightly allowed. Furthermore, the constitutional petition filed by the petitioner does not disclose as to how any fundamental right of the petitioner has been infringed due to such order passed by learned Ist Appellate Court; therefore, present petition merits no consideration and may be dismissed accordingly. In support of his contentions he has relied upon the case of Ramzan and 5 others v. Member Board of Revenue and others (1991 CLC 2125), Muhammad Zaki v. Karachi Development Authority and another (PLD 1989 Karachi 83) and Haji Anwar and another v. Haji Jamil and 2 others (1971 Law Notes 674).

5. I have considered the arguments advanced by both the parties and have perused the case record. The perusal of judgment of learned Rent Controller reveals that it has formulated the following points for determination: "

1. Whether the opponent has committed willful default in payment of rent w.e.f. October 2008 till to date, as alleged?

2. What should the order be?" The learned Rent Controller allowed the ejectment application on the point of willful default committed by the respondent No.2. In this regard the evidence adduced by the respondent No.2 is relevant. The perusal of such evidence reveals that the respondent No.2 has examined one Ahmed Hassan Zaidi, its authorized representative, who had filed his affidavit-in-evidence before the Rent Controller. The perusal of cross examination of above witness reveals that he during the cross examination admitted that the respondent No.2 had paid the monthly rent at the rate of Rs.25000/ - in advance each month uptill September 2008 on monthly basis. He has further admitted that they had filed M.R.C. No.14/2010 before the learned Rent Controller and on 25.01.2010 deposited lump sum monthly rent for 17 months w.e.f. November 2008 to March 2010 amounting to Rs.4,25,000/-. He also acmitted that in MRC No.14/2010 nowhere it was disclosed that rent was to be paid on yearly basis. It is further admitted that before deposit of this lump sum rent amount in M.R.C. before the Rent Controller monthly rent was not sent through postal money order to the present petitioner even once, but it was sent in the shape of cheque through courier in lump sum and not on monthly basis. The perusal of copy of above cheque produced on record as Exb. O-2/ A reveals that it is dated 13th November, 2009. There is nothing on record from respondent No.2 as to whether w.e.f. October 2008 till November 2009 any effort was made to pay the rent to the petitioner in advance on monthly basis as agreed between the parties.

6. It is also the case of respondent No.2 that initially the landlady (petitioner) accepted the rent on monthly basis, but subsequently demanded rent on annual basis, whereas as per registered lease agreement dated 31.05.2008 as per clause (1) it has been specifically disclosed that rent is payable monthly in advance. Against this, there is only verbal assertion of respondent No.2 in respect of demand of rent on annual basis; therefore, such plea appears to be an afterthought only. If for the sake of arguments, this contention of respondent No.2 is taken as correct, then nowhere it is mentioned when such demand regarding payment of rent on annual basis was made by the petitioner and even if such statement was made, then also the respondent No.2 had deposited the rent in lump sum for 17 months in MRC before the Rent Controller and not on annual basis. Thus the deposit of Rs.4,25,000/ - by the respondent No.2 in MRC No. 14/2010, itself is a documentary proof of willful default in the payment of rent for more than fifteen months.

7. Here a reference to the language of section 10 of the Ordinance of 1979, regulating the mode of payment of rent is also relevant, which for the sake of convenience is reproduced as under:-- "

10. Payment of rent.

(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated. (4) The writ acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the cases pending before the Controllers on the commencement of this Ordinance." The perusal of above section reveals that under the ordinance 1979, either, the rent could be paid in person to the landlord on receipt, or in case of refusal it could be sent through postal money order or could be deposited with the Rent Controller of the area. It will be pertinent to mention that the above provision of law does not provide payment of rent through cheques. Thus, it is clear that in the present case no mode for payment of rent as provided under the law referred to above was adopted by the respondent No.2 until the filing of MRC No.14/2010 before the Rent Controller on 11.01.2010. From above discussion, it is fully established that the respondent No.2 had committed default in payment of rent; for the period October 2008 till January 2010, therefore, the learned Rent Controller had rightly answered the aforementioned points in affirmative.

8. The next contention of the learned counsel for the respondent No.2 is that as lease agreement was executed between the parties, therefore, Sindh Rented Premises Ordinance is not applicable in the present case and the Rent Controller had wrongly assumed the jurisdiction in this case. On one hand, respondent No.2 has taken this plea and simultaneously on the other hand itself deposited the rent in MRC No.14/2010 in the present case. Furthermore, in support of his contention counsel for the petitioner has relied upon the case of Mrs. Zehra Beg v. Messers Pakistan Burmah Shell Ltd. (PLD 1984 Supreme Court 38), wherein the facts of the case are almost identical to the present case. the above judgment, the Honourable Supreme Court has specifically dealt with the provisions of Rent Laws and the General Law of Land (Contract Act and Transfer of Property Act) governing the relationship of landlord and tenant, and the decision of the Rent Controller was upheld, even in the case where there was an agreement for a period of 30 years for running a petrol pump on the rental premises, which is the case in the present petition also. Thus such plea on behalf of Respondent No.2 is frivolous and bereft of any legal merit. The case law relied upon 07 tie learned counsel for the respondent No.2 is also distinguishable and not applicable to the facts and circumstances of the present case.

9. So far as the impugned judgment passed in F.R.A. No.13/2013 is concerned, its perusal reveals that it is based on incorrect application of law by holding that since the rental amount was deposited in MRC No.14/2010, therefore, no default has been committed by respondent No.2. In the light of what has been discussed above, the petition is allowed, order of the First Appellate Court dated 02.11.2013 is declared to be without lawful authority and is hereby aside. Resultantly the order passed by learned Rent Controller dated 01.03.2013 is upheld. SL/S-34/Sindh Petition allowed.