1992 PLP 810 (MLD)

Manzoor Ahmed had filed an eviction application bearing R.C.No. 2583 of 1968 against the respondent on different grounds, namely, the respondent being a defaulter since 1965 and he was in arrears for a sum of Rs.460 on 1‑12‑1965 and the property in dispute was required by him for his own bona fide use as he was residing with his in‑laws in their house. The respondent admitted being statutory tenant of the said Manzoor Ahmed. Receipt of notice under section 30 of the Displaced Persons Act, 1958 was also admitted. The rate of rent at Rs.20 per month was also admitted. The respondent, however, denied that he was in arrears of rent. The respondent pleaded in his written statement that "the opponent has all along peen willing to pay uptodate rent to the applicant but the applicant at first instance allowed the opponent to carry out the necessary repairs in the tenement :n his occupation and deduct the expenses incurred from the rent. The opponent submits that "when he offered the rent to the applicant after deducting the repair charges in the sum of Rs.560, the applicant refused to accept the same for ulterior reasons". He also controverted the other grounds taken by the said Manzoor Ahmed. During the pendency of the eviction application, the Controller passed a tentative order directing the respondent to deposit arrears of rent and current rent with the Nazir of the Court. On failure of the respondent to comply with this order, the defence of the respondent was struck off vide his order dated 15‑2‑1972. Against this order the respondent went in appeal before the District Judge, Karachi, which was ultimately transferred to the Court of the IVth Additional District Judge, Karachi. During the pendency of the above appeal, Manzoor Ahmed transferred the premises in question to the present appellant. The first appellate Court vide its order dated 21st April, 1973, allowed the application of the appellant for being substituted as landlord in place of Manzoor Ahmed, The above appeal was finally decided by the Additional District Judge, Karachi on 6‑12‑1973 whereby the order of the Controller striking off the defence, was set aside and the case was remanded to the Controller for disposal according to law. When the record came back to the Controller, the present appellant filed an amended application under section 13(2) of the Urban Rent Restriction Ordinance, 1959 in which he pressed only one ground for eviction i.e. default in payment of rent from February/March, 1964. He also added that the respondent had made alterations in the premises which has materially impaired its value. The respondent filed amended written statement in which he alleged that the eviction application was not maintainable without notice under section 13‑A of the Ordinance. He denied the allegation of default and contended that the previous landlord had permitted him to make repairs in the house and adjust the cost of repairs amounting to Rs.560 towards future rent. He also controverted other grounds also. On the pleadings of the parties, the following issues were framed by the Controller:‑‑ "(1) What is the monthly rent according to the latest assessment carried out by the K.M.C. to which the applicant is entitled to demand from the opponent under section 30 of the D.P. Act of 1958? (2) Whether the notice under section 13‑A of the Ordinance was necessary for the applicant to give the opponent in view of judicial order dated 21‑4‑1973 passed by IVth Additional District Judge Karachi between the aforesaid parties? (3) Whether the opponent has committed default in payment of monthly rents? (4) Whether the opponent has damaged the disputed premises or has committed such acts as are likely to impair materially its value or utility? (5) Whether the opponent has made alterations in the disputed premises without written permission of the applicant? (6) What should the decree be?" The appellant examined himself in support of the eviction application. The respondent examined his younger brother and attorney Rashid. The Controller, on assessment of the evidence on record, came to the conclusion that assessment is Rs.45 per month or so but the present appellant is bound by the agreed rent fixed by the previous landlord. In that view of the matter, he determined the rate of rent at Rs.20 per month. Issues Nos.2, 3, 4 and 5 were decided in the negative. He held that the appellant was not entitled to arrears of rent as he failed to show any authority of his entitlement. In that view of the matter, the application was dismissed vide order dated 15‑11‑1977. The appellant went in appeal before the District Judge, Karachi which was ultimately heard by the VIIth Additional District Judge. The Additional District Judge, on reassessment of the evidence or record, came to the conclusion that the Controller has rightly fixed the rate of rent at Rs.20 per month. On issue No.2, he came to the conclusion that the respondent was not in any arrears of rent since 1902 and the rent had been paid by the respondent. In that view of the matter‑he came to the conclusion that the Controller has rightly held that the respondent is not defaulter. He also came to the conclusion that the Controller has rightly exercised discretion in holding that the respondent is not defaulter. On issue No. 5, he held that the Controller has rightly held that the appellant has not been able to prove these allegations. In that view of the matter, the appeal was dismissed vide order dated 27‑1‑1979. The appellant above named, being aggrieved by the judgment dated 27‑1‑1979 of the VIIth Additional District Judge, Karachi has preferred this Second Appeal, on the grounds mentioned in the memo. of appeal. The appeal came up for hearing before Fakhruddin H. Shaikh, J. (as he then‑ was) who allowed the appeal vide judgment dated 28‑8‑1983. The respondent filed petition for leave to appeal which was granted on 29‑1‑1984. The appeal was allowed on 13‑5‑1990 and remanded to this Court for a fresh decision after rehearing the learned counsel appearing for the parties. I have heard the learned counsel for the parties and have gone through the R & P of the case. I have also perused the impugned judgments. Mr. Sulaiman submitted that the ground of default after purchase of the property was not available to the appellant. Mr. Abdul Wahab submitted that the ground of default was available to the appellant. This point was considered by learned Single Judge of this Court in the case of Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another (PLD 1976 Karachi 53) in which it was held that after the purchase of the property, the purchaser by virtue of section 8 of the Transfer of Property Act, succeeded to the rights which had already accrued to the previous owner of the property including the ground of default, if already committed. This judgment was followed by Mr. Ajmal Mian, J. (now Judge Supreme Court) in the case of Muhammad Ishaque v. Abdul Haque and 2 others (1982 CLC 665 (Karachi)). In a case reported in PLD 1961 Lahore at page 788 a Division Bench of Lahore High Court, it was held as under:‑‑ "The death of the original tenant cannot obliterate the effect of default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property". The above observations were approved by the Hon'ble Supreme Court in the case of Muhammad Azim and others v. Sh. Muhammad Nawaz and others (PLD 1966 .SC 182). It is advantageous to reproduce the relevant portion from the judgment which reads as under:‑‑‑ "These circumstances are sufficient to show that there was a defect in the right which he could claim as a tenant, which had been made the subject for proceedings of termination of the tenancy against him and from the time when the proceedings were commenced the retention of the tenancy was subject to the result of these proceedings. It was not a case of the defects being noticed and made a ground for eviction upon or after the death of the tenant. The tenure which Sayyed Fazal‑i‑Haq enjoyed from the time when the proceedings were started against him was subject to the result of those proceedings and his legal representatives, who, under the law, were entitled to continue in occupation, held that tenancy subject to this defect. I find. myself in complete agreement with the view expressed by the Division Bench on this point Although the legal representatives could claim to be statutory tenants upon the death of Sayyed Fazal‑i‑Haq, yet their tenancy was not free from embarrassment, for litigation had already been commenced on the basis of defaults, sufficient in themselves, if found, to extinguish that right. Therefore, in my view, the legal representatives, if they wished to continue as tenants, were bound to x1ndertake to establish that there was no default either in payment of y rent, or by sub‑letting of the premises, by their deceased father Sayyed Fazal‑i‑Haq:" The above principle is applicable to the facts of the instant case. In this view of the matter I do not find any force in the submission of Mr. Sulaiman. The appellant averred in his eviction application that the respondent has committed default in payment of rent since February/March, 1964. The respondent stated in his written statement that he has all along been willing to pay uptodate rent to Manzoor Ahmed but he at the first instance allowed him to carry out the necessary repairs in the tenement in his occupation and deduct the expenses so incurred from the rent. That when he offered the rent to the previous landlord after deducting the repair charges in the sum of Rs.560, he refused to accept the same for ulterior reasons. The respondent produced rent receipt (Exh.A/5) for the months of April and May. The other receipt (A/6) is for March, 1965 and April 1965. Rent receipt dated 1‑12‑1965 is for the month of December 1965. It shows that Rs.460 remained as balance. Rent receipt dated 1‑11‑1965 (Exh.0/4) is for the months of October and November 1965. Rent receipt dated 1‑9‑1965 (Exh.0/5) is for the months of August and September 1965. The respondent has brought receipts on record. A perusal thereof would show that the rent was paid up to 30‑11‑1965. A perusal of rent receipt dated 1‑12‑1965 shows that the respondent paid rent up to 30‑11‑1965 and there was a balance of Rs.460 up to 31‑12‑1965. The appellant stated in his examination‑in‑chief that the respondent had not paid any rent to the previous landlord from 1962 till he purchased the flat. He further stated that the respondent had not paid him any rent till 9‑5‑1977. To a suggestion, the appellant replied that I see Exh. A/5 and ExhA/6 and cannot say whether these receipts were issued by the previous owner of the flat. To a suggestion in cross‑examination,. he replied that "it is incorrect to say that the previous landlord gave permission to the opponent for repairs and promised that he will deduct amount from rent". Rashid stated in his examination‑in‑chief that we asked him for the repairs to which he agreed but said he will allow us to adjust the amount of repairs from the arrears of rent and meanwhile it was settled .between us that we continue to pay the current rent plus rent of one. month of outstanding arrears i.e. Rs.20 as rent per month and plus Rs.20 and Manzoor used to issue receipts as per ExhA/5 and A/6. He also produced receipts Exhs.0/3, 0/4 and 0/5. He further stated in. his examination that "we spent Rs.600 on repairs. I asked the landlord and reminded his promise and asked that he will verify whether we had spent Rs.600 on repairs for a long period he avoided. We were ready to pay the full rent. He was avoiding to give adjustment and in the meantime he filed this case". To a question in cross‑examination he replied that "he did not give in writing about repairs". To another question, he replied that "I did not take permission for construction because it was mutually settled". Mr. Abdul Wahab contended that the written statement was filed by the respondent wherein he stated that Rs.560 were spent on repair charges. His attorney appeared in the witness‑box and deposed that Rs.600 were spent as repair charges. There is a contradiction between the two statements. His contention is that there is an admission in the written statement that the respondent spent Rs.560. This point was considered in the case of Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730). The Hon'ble Supreme Court held as follows:‑‑‑ "After going through these decisions I am of the view that the principle of law enunciated in the case of Firm Malik Des Rai Fakir Chand v. Firm Piara Lal Aya Ram and others lays down the correct law. In this case it was held as under:‑‑‑ `Where a party has gone into the witness‑box on the point in issue and in the witness‑box has made a statement inconsistent with the admission or the statement made in the witness‑box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross- examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."' I accordingly hold that in view of the legal position discussed above, the alleged admission made by respondent in his written statement could not be used as legal evidence against him as attorney of the respondent in the witness‑box made a statement which runs contrary to the alleged admission who was neither cross‑examined by the appellant on this statement nor his attention was invited to the admission contained in written statement. The appellant in his evidence before the Controller stated on oath that respondent had incurred Rs.600 on repair charges. Reverting to the second contention of Mr. Abdul Wahab that the respondent has not established that the previous landlord permitted him to carry on repairs and the amount incurred would be adjusted in future rent it suffices to observe that this contention is devoid of force. Firstly the respondent specifically pleaded in his written statement that the previous landlord permitted him to carry on the repairs and the repairing charges would be adjusted against future rent. The appellant appeared in witness‑box and did not state on oath that the previous landlord did not allow or permit the respondent to carry out repairs. It is pertinent to note that in reply to a suggestion in cross‑examination, he stated that it is incorrect to say that the previous landlord gave permission to the respondent for repairs and promised that he will deduct amount from rent. The appellant did not produce previous landlord in support of this statement. His statement is hearsay. On the contrary the respondent asserted in his written statement that the previous landlord gave permission to the respondent for repairs and promised to adjust the same from future rent. His attorney appeared before the Controller and stated on oath that the previous landlord gave permission to carry out repairs and promised to adjust the charges from future rent. It is significant that he was not cross‑examined at all on this point. It is well settled that failure to cross- examine a witness tantamounts to admitting his statement. (See PLD 1967 Lahore 1138 at page 1158; PLD 1967 Karachi 233 at page 237 and PLD 1969 Peshawar 121 at page 124). In Muhammad Usman v. Fazal Karim (1981 CLC 104) it was argued by the counsel for the landlord that the tenant deducted the amounts without express permission of the landlord for repairs, as such this action amounts to default. It was held that the letters again do not indicate that the landlord has taken exception to the deduction of money for repairs by the tenant. When no such objection is taken, it is implied that landlord has condoned this action. In Muhammad Salim and another v. Muhammad Abdullah Musharif Abedeen Farhad (1983 CLC 3053), a learned Single Judge of this Court held as follows:‑‑ "In my view considering the circumstances and the nature of the facts brought on record, it is to be believed reasonably that the ‑ landlord who had expired during the pendency of the case, did accord the permission to carry out repairs and adjust the amounts towards the rents due from the appellants." In the present case, the respondent has produced the rent receipts and other evidence which shows that the Controller and the first appellate Court have both observed in their findings that the respondent has not committed default, therefore they have not thought it expedient to order the eviction of the respondent. This discretion has been exercised in favour of the respondent because the previous landlord Manzoor Ahmed permitted him to carry out the necessary repairs in the tenant and the amount spent on repairs will be adjusted towards the rent. I consider that this is a good ground for exercising the discretion in favour of the respondent/tenant. As such I am of the opinion that the discretion in favour of the respondent has been exercised judicially. I may mention that the learned counsel for the parties have cited a number of decisions on these points. For these propositions, it is not necessary to cite decisions, although I have been taken through case‑law by counsel on both sides. For the foregoing reasons I see no merit in this second appeal which is accordingly dismissed. In the circumstances of the case, the parties are directed to bear their own costs. AA./A‑1157/K Appeal dismissed.