1989 PLP 686 (CLC)

Respondent Lal Bux claimed to be the landlord of shop premises Nos.l and 2‑A situated on Plot No.R.C‑2(KD‑27), Ranchore Quarters, Bohra Pir, Ambaji Villa Road, Karachi, and stated that the appellant was tenant in shop premises No.2/A at the monthly‑ rent of Rs.500 Ejectment of the appellant was sought on the ground that he was in arrears of rent since l 2‑1978 amounting to Rs.42,000 and on the granted of subletting the shop unauthorisedly to Haji Muhammad Miskin who was respondent No.2 in the rent petition and is also respondent No.2 in this appeal. In their joint written statement appellant and respondent No.2 stated that the respondent Lal Bux had nothing to do with the shop in question which was on K.M.C. land and on this ground the charge of default was denied. As for subletting, it was, stated that, firstly, the appellant had not sublet the shop respondent No.2 who was maternal‑uncle of the appellant and who merely visited the shop off and on and, secondly, because the ground of subletting simply did not arise as the appellant was not the tenant of respondent No.l Lal Bux. In other words, the written statement was based on the simple denial of any right of the appellant in SC far as the shop in question was concerned and the appellant had not disclosed what right he had in respect of the said shop. The learned Rent Controller framed four issues the one about the existence of the relationship of landlord and tenant between the parties and the other about the alleged default and the third about subletting and the fourth being about the relief. All the issues were decided in favour of respondent No.l and an order of ejectment was passed on 18‑10‑1987 against the appellant who has now come in appeal against the said order. (2) Learned counsel for the parties have been heard and record of the case perused. (3) As pointed out earlier, appellant had only stated in his written statement that respondent No.l Lal Bux had nothing whatsoever to do with the shop in question. However, during the course of the cross‑examination of the said Lal Bux, the appellant tried to set up a case that the shop in question did belong to Lal Bux respondent No.1 but he had sold it to the father of the appellant for Rs.6,000 and had delivered possession after receiving the sale price and, therefore, the appellant was the owner of the shop in question. This claim of the appellant was out of his pleadings. In fact it was contrary to his pleadings because in the written statement it was stated that Lal Bux had nothing to do with the shop in question whereas he now claimed that Lal Bux was the owner of the shop in question and had sold the shop to his father. Now, no one can set up a case in evidence which is contrary to his pleadings. Besides, the alleged agreement of sale and the receipt of sale money, although in the power and possession of the appellant, were neither filed with the written statement nor, if they were misplaced and not available for the time being, were relied upon by the appellant. They were with the appellant till respondent No.1 Lal Bux was confronted with them during the course of his cross‑examination. Under the circumstances, learned Rent Controller, who h‑ad placed these documents on record subject to the objections raised about their admission by the counsel of respondent No.l, rejected them as being inadmissible and held that there was relationship of landlord and tenant between the appellant and respondent No‑1 on the admitted position that the appellant had not paid any rent, held him to be defaulter and on the basis of evidence brought before him, concluded that respondent No.2 was in actual possession of the shop and thus a sublessee.

4. The evidence of respondent No.1 Lal Bux consisted of his own evidence and that of Fazal whereas appellant had filed his own affidavit as well as of respondent No.2 Haji Muhammad Miskin and of Muhamniad Hamza and Haji Hatim.

5. In his own affidavit respondent No.1 Lal. Bux stated that father of the appellant was also his tenant at the monthly rent of Rs.500 and on the death of his father appellant became his tenant, that the appellant had not paid the rent since Ist February, 1978, amounting to Rs.42,000 up to 31 1‑1985 and that the appellant had illegally transferred the shop t6.opponent No.2. In cross‑examination Lal Bux admitted that the shop in question was ‑over KMC land and that no tenancy .agreement was executed between him and the father of . the appellant. He further stated that a sum of Rs.6,000 was paid in advance when the shop was given to the father of the appellant but no receipt was executed by him. He further stated that when he demanded rent, appellant complained at Police Station about 8 years :6'go. 'A suggestion was put to him that‑the . shop ‑ in question (or cabit5) was constructed by the father of the appellant and he denied this suggestion and stated that it was not‑ correct that Malik Aman, father of the appellant, had constructed this cabin.. He denied that he had entered into any agreement. with Malik Amen on 21=5‑1978 but added that when he was summoned at the Police Station on the complaint of the appellant, he was made to sign certain documents. under. coercion. At this stage an agreement and receipt were shown to him and he stated that they were the documents which he had signed under coercion at the Police Station. These are the agreement of sale and a receipt for Rs.6,000 and they were brought on record as Exhs.l‑A and 1‑B (both subject to the objections raised by the opposite party about their admissibility). On being asked about license of KMC land, he showed it to the Court and its copy was brought on record as Exh.l‑D. Again, a suggestion was put to respondent No.1 as to whether it was correct that a sum of Rs.6,000 was paid to him as purchase price and the suggestion was denied by him. I cannot help noting that the appellant had taken two contradictory stands. His first claim was that the shop in question was built by his father Malik Amen and the appellant had nothing to do with it and the land underneath the shop being the property of KMC, there was no question of paying anything to respondent No.1 Lal Bux. However, at the end of cross‑examination of respondent No.l, the appellant claimed to have paid Rs.6,000 to respondent No.l, by way of purchase price. There could be no question of payment of anything by way of purchase price because according to the appellant his father himself had built the shop. It is thus evident that the appellant had not come to the Court with clean hands. He was not clear in his mind about his position with regard to the shop in question. At one place he stated that respondent No.1 had nothing to do with it whereas at another place he says that respondent No.1 was its owner. At one place he says that the shop was built by his father and another he states that a sum of Rs.6,000 was paid to respondent No.l, by way of purchase price. After going through the evidence minutely I am of the view that shop in question was taken on rent by the father of the appellant and on his father's death the appellant continued to occupy it but did not pay any rent to respondent No. l and when he pressed the appellant to pay the rent, the appellant approached the police where a sale agreement and receipt were got executed from respondent No.

1. If it was not so, the appellant would have pleaded in his written statement the fact of purchasing the shop from respondent No.1 and would have filed in the Court of Rent Controller the agreement of sale as well as the receipt of purchase price. The appellant had examined Muhammad Moose and Haji Hatim to prove the execution of agreement of sale but the evidence of these witnesses is unreliable and contradictory to each other. According to Muhammad Moose the agreement was written on 21‑5‑1978 and the purchase money was paid in his shop where respondent No.‑1 and father of the appellant had come together and that the agreement of sale was already written and prepared and he was merely asked to sign it. According to him the other attesting witness Hat Hatim was with respondent No.1 and father of the appellant when they came to his shop. On the contrary, Haji Hatim stated in his cross‑examination that respondent No.2 Hap Muhammad Miskin had called him to the shop of Aziz and Lal Bux had come there. In other words, he denied that he had accompanied Lal Bux and father of the appellant to the shop of Aziz, as stated by Muhammad Moose. It appears that both of them are not truthful witnesses. Besides, as has been already stated above, the agreement and the receipt set‑up a new and different case from the one set‑up in the pleadings and both the documents were neither relied upon nor tendered alongwith the written statement and as such were not admissible in evidence. Even otherwise they have not been proved.

6. As for the charge of subletting, Haji Hatim admits in cross examination that respondent No.2 Muhammad Miskin carries on the ` business in the disputed shop since the death of Malik Amen. This is exactly the charge made by respondent No.1 in his ejectment petition. It is thus clear that after the death of Malik Amen, his father, the appellant did not keep the shop in his possession and did not carry on business in it. On the contrary, he handed it over to respondent A No.2, Haji Muhammad Miskin. This appears to be so even otherwise) because the appellant is a bus driver and he cannot be expected to sit in a shop and do business therein while at the same time being of employed as a bus driver. I am, therefore, satisfied that allegation subletting has been proved and finding of the learned Rent Controller in this respect is upheld.

7. Learned counsel for the appellant had referred the Court to his application for amendment of the written statement moved before the learned Rent Controller. This application is dated 7‑9‑1986 and the appellant wanted to amend his written statement so as to substitute para. 1 of the same with a new para. in which he wanted to plead that his father had purchased the superstructure of the shop or cabin from respondent No.1 for Rs.6.000. This application was supported by an affidavit in para. 3 whereof it was stated that this fact could not be pleaded earlier because the documents relating to the purchase of the superstructure and his report to police were misplaced and were not traceable when the written statement was filed and as such he could not plead that his father had purchased the superstructure. The contents of para. 3 of the affidavit really make no sense. The documents may have been misplaced but that could not in any way prevent the appellant from pleading that his father had purchased the shop in question, while at the same time stating that the documents of purchase had been misplaced and were not traceable and as such they or their certified copies could not be filed and would be filed as and when they were traced and found out. Purchase of the disputed shop by the father of the appellant from respondent No.l was a fact which must have been mentioned in the written statement. This application for amendment was moved when the cross‑examination of respondent No.l was half over and when the case was adjourned for further cross‑examination of respondent No.l. I have gone: through the order of the learned Rent Controller dated 19‑11‑1986 whereby the application for amendment of written statement had been rejected and 1 am of the view that under the circumstances of the case this was the only proper order which could have been passed. It is true that Courts have very wide powers to allow the parties to amend their pleadings in the interest, of justice and there is to dearth of authorities in support of the i proposition that amendment can be allowed at any stage both in a civil suit as well as in the Rent Petitions, and that amendment of the pleadings should be liberally allowed. In this respect I was referred to PLD 1967 Lah. 298 and PLD 1985 SC

345. However, this does not mean that a court has no discretion while deciding an application for amendment of pleadings and must of necessity grant each and every application for amendment of the pleadings. Each and every‑ case has to be seen on merits and when a party does not come to tile Court with clean hands or wants to change the very complexion of the easel and to set up a case quite different from the one already set up by him in the pleadings sought to be amended, then permission to amend l the pleadings must be refused. Here it cannot be said that thel appellant could have forgotten the very important fact that his father had purchased the shop in dispute from respondent No.l merely because the documents evidencing the sale had been misplaced and could not be found. Besides, order dated 19‑10‑1986 was not impugned at the proper time And cannot be challenged in this appeal.

8. Learned counsel for the appellant has referred the Court to other authorities in support of his contention that relationship of landlord and tenant had not been proved. 1987 CLC 148 was referred to show that the relationship of landlord and tenant could only be decided the Rent Controller on admitted facts only but where such relationship had not at all been established between the parties, Rent Controller should avoid assuming jurisdiction to investigate decide a complicated issue. This authority is not applicable to the present case because it can be stated that the relationship had; nn: :at all been established between the parties. The ground under the disputed shop which belongs to KMC has been leased to respondent No. l and the lease is still in operation. The copy of lease order and receipt of the payment of lease‑money are on record. The fact that the shop in dispute was constructed by respondent No.1 stands proved from the very fact that appellant later on took the plea that it was purchased by his father. Similarly, the facts in 1983 SCMR 1064 and 1986 CLC 1613 are quite different.

9. Learned counsel for respondent No.l had relied on section 17 01 of the Registration Act which envisages that all transactions of sale in which the sale price is more than Rs.100 must be compulsorily registered and on that ground he assailed the alleged agreement of sale. There is no need to go in this question because the said alleged agreement of sale, apart from being contrary to the pleadings, had not been properly proved, was brought on record subject to the objections of the opposite party and was subsequently held to be inadmissible in evidence.

10. For the above‑noted reasons the impugned order of learned Rent Controller is upheld and the appeal is dismissed. The parties are, however, left to bear their own costs. M.Y.11. /S‑273/x. Appeal dismissed.