1986 PLP 343 (CLC)

‑‑‑S. 17‑‑Ejectment‑‑Relationship of landlord and tenant‑‑Tenant, while opposing ejectment application filed by landlord, denying relationship of landlord and tenant between parties‑‑Rent Controller deciding issue against tenant and ordering his ejectment without touching any other issue‑‑Contention that since Rent Controller had disposed of entire case on preliminary issue of relationship of landlord and tenant and failed to give separate findings on merits, case should be remanded to Rent Controller for his findings on merits, held, was without force as tenant had not denied allegation of. non‑payment of rent to landlord after adjustment of specified amount towards rent. Habibullah Samo for Appellant. K.A. Wahab for Respondent. Date of hearing: 20th October, 1985. This appeal is directed against the order passed by the Additional Controller of Rents, Clifton Cantonment Board, Karachi, dated 9th February, 1985, whereby the appellant was ordered to vacate the disputed premises and made over vacant possession thereof to the respondent before 15th March, 1985. The facts of the case are, that the appellant and the respondent who were married, were living in House No.99/II, situated in 8th Commercial Street, Phase IV, Defence Housing Society, Karachi. Admittedly, the plot was owned by the respondent whereupon the appellant had raised construction investing Rs.1,40,

000. After some time, the parties were separated. After separation, the parties on 18‑3‑1979 came to certain agreement in respect of the house in question and some other matters arising out of such separation and the terms of such agreement were reduced by the parties in writing. According to such writing which is Exh.l/A and is in the nature of a memorandum, the appellant agreed to become the respondent's tenant, with effect from 1st April, 1978, in respect of the disputed house, the rent of which was fixed at Rs.2,000 per month. It was also agreed between the parties that out of the aforesaid amount Rs.1,40,000, said to have been invested by the appellant on construction of the house, Rs. 25,000 were to be relinquished in favour of the respondent as dower and the balance of Rs.1,15,000 was to be adjusted towards the rent of the house. It was further agreed that "normal rent laws for the time being in force shall apply during Mr. Raza's occupancy as tenant". While signing the document, Exh.l/A, the appellant made an addition therein before putting his signature thereon, that "there will be a proper tenancy agreement under the law". Thereafter, the appellant continued to occupy the premises in question. After the amount of Rs.1,15,000 was wholly adjusted towards rent in December, 1982, the appellant failed to pay further rent to the respondent and as such committed default. The respondent thereafter filed a rent application on the ground of default committed by the appellant in payment of rent, and also that the appellant had become a constant nuisance to the neighbours. It was also averred in the application that the respondent required the disputed premises bona fide for her own personal use. This application of the respondent was resisted by the appellant in the written‑statement filed by him wherein the relationship of landlord and tenant between the parties was disputed. The commission of default in payment of rent was however, not denied by the appellant. On the basis of these pleadings, the learned Controller only framed the following issue: "Whether the relationship of landlord and tenant exists between the parties?" The learned Controller after deciding this issue in favour of the respondent, ordered the appellant to vacate the disputed premises and hand over peaceful possession thereof to the respondent. The first contention of Mr. Habibullah Samo, the learned counsel for the appellant, is that there was no valid tenancy agreement between the parties; as no such agreement was drawn after signing of Exh.l/A by them, wherein it was clearly stipulated that there would be a proper tenancy agreement under the law. However, reading Exh.l/A as a whole it, was clearly stipulated that the appellant would become the respondent's tenant with effect from 1st April, 1978. It was also clearly stipulated that out of the amount of Rs.1,40,000 which the appellant had invested on the construction of the house in question and after deducting Rs.25,000 towards the respondent's dower, the balance amount of Rs.1,15,000 would be adjusted towards the rent of the house which had been fixed by the parties as Rs.2,000 per month. Looking at Exh.l/A, it clearly created tenancy in respect of the disputed house and the appellant after adjustment of the amount of Rs.1,15,000 was clearly liable to pay rent to the respondent at the rate stipulated therein which, admittedly, he had failed to do. No doubt while signing Exh.l/A, the appellant had mentioned therein that there would be a proper tenancy agreement under the law, but merely because no such agreement was drawn between the parties, it does not change 'he relationship of landlord and tenant between the parties. Tenancy can be created even orally and an agreement in writing was not a requirement of the law applicable in this case. Moreover, section 2(j) of the Cantonments Rent Restriction Act, 1963 defines "tenant" as "any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf, and includes ...." Since the appellant had given an undertaking to the respondent to pay rent in respect of the premises in question, he became the respondent's tenant after giving such undertaking, irrespective, of the fact that a separate tenancy agreement between the parties was not signed. The argument of the learned counsel is therefore, unacceptable. The next ground urged by Mr. Habibullah Samo is, that even if Exh.l/A is held to create tenancy in respect of the disputed premises, then such agreement should have been stamped under the provisions of the Stamp Act, 1899. The learned counsel particularly referred to section 35 of the Stamp Act which provides that "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or by consent of parties authority to receive evidence, or shall be acted upon... by any such person or by any public officer, unless such instrument is duly stamped." After section 35, section 36 says: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." The argument of the learned counsel was that such a document would be invalid and, therefore, cannot be acted upon. The question of validity of such documents came to be examined by the Supreme Court in Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddiq PLD 1978 S C 279 wherein it was held that merely because an instrument cannot be admitted in the evidence for any purpose as because it cannot be acted upon by the persons specified in the section does not mean that such instrument is invalid and it was further observed by the Supreme Court that if the intention of the Legislature had been to render invalid all instruments. not properly stamped, it would also have provided some machinery for enforcing its mandate in those cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section. The Supreme Court further observed that the object of the Legislature in enacting Stamp Act was to protect the revenues and not to interfere with commercial life by invalidating instruments vital to the smooth flow of the trade and commerce. In view of such legal position, even if the document, Exh.l/A required to be stamped, it cannot be treated as invalid merely because it was not stamped. At the most, it would be subject only to the disabilities specified in section 35 and those disabilities can be removed in the manner provided in sections 35 and 36 of the Stamp Act, as was held by the Supreme Court in the case just referred to. Reference in this respect may also be made to the cross‑examination of the appellant before the Rent Controller wherein clear admission had been made by him that Rs.1,15,000 was agreed to be adjusted towards rent of the disputed premises which was fixed at the rate of Rs.2,000 per month. The appellant also admitted in his cross‑examination that he had not paid any amount to the respondent on account of rent after adjustment of such amount. The appellant' further admitted that he was occupying the disputed premises as a tenant at the rate of Rs.2,000 per month. In view of this oral evidence, even if the document Exh.l/A is ruled out of consideration, there is still sufficient evidence to create relationship of landlord and tenant between the parties. The argument of Mr. Habibullah Samo is, therefore, not acceptable. The last contention of Mr. Habibullah Samo was, that the learned Rent Controller had disposed of the entire case on the basis of the preliminary issue and had failed to give separate findings on the merits of the case. The learned counsel, therefore, contended that in any case, the case should be remanded to the learned Rent Controller for his findings on merits. This argument, prima facie, appears to be forceful, but a perusal of the written‑statement shows that the appellant had met the pleas of the respondent only with denial of the relationship of landlord and tenant between the parties. The allegation that the appellant had failed to pay rent to the respondent after the amount of Rs.1,15,000 had been fully adjusted towards rent was not denied by the appellant on any other ground except for that as just stated. Similar is the case with respect to the other pleas raised by the respondent before the learned Rent Controller. Under such circumstances when the learned Controller repelled the appellant's plea qua the respondent's title in respect of the house in question, the only course open for the learned Rent Controller was to order the appellant's ejectment since no other issue was then before him to be tried. Under the circumstances, this argument of the learned counsel is also without force and must be rejected. Mr. K. A. Wahab, the learned counsel for the respondent raised a question of limitation as according to him, this appeal was preferred beyond 30 days as required by section 24 of the Cantonments Rent Restriction Act, 1963. It may be mentioned here, that the appellant first filed this appeal before the District Court as he was not aware of the amendment made in section 24 of the said Act of 1963 by Ordinance No.IX of 1985, whereby the appellate jurisdiction, which originally vested in the District Court, was given to the High Court. When the mistake was discovered and the appeal was filed before this Court on 26‑2‑1985, the period of limitation as prescribed by the amended section 24 of the Act, which was thirty days, had already expired. The contention of Mr. K. A. Wahab, the learned counsel for the respondent was that the delay caused in filing of this appeal cannot be condoned under section 14 of the Limitation Act as it was due to the negligence of the appellant that the appeal was filed before the District Court instead of the High Court. The learned counsel further argued that the appellant had failed to show that such delay was caused in good faith as required by section 14 of the Limitation Act. However, since this appeal even otherwise is liable to be dismissed on merits, going into the question of limitation would be futile. In view of these circumstances, this appeal is dismissed but with no order as to costs. The appellant is however, given one month's time to vacate the premises in question and hand over peaceful possession thereof to the respondent. M . Y . H?????????????????????????????????????????????????????????????????? Appeal dismissed