P L D 1981 Karachi 150 (PLP)

In this view of the matter, it cannot be disputed that the rent for the above period was not paid. (b) On the State of the evidence on record the appellant has been able to prove that in fact he had paid rent up to the period expiring on 30‑9‑1970 in the following manner (i) Exh. 8, rent for the months of October and November, 1969‑Rs. 350. (ii) Exh. 9 rent for the period from December, 1969 to March, 1970 Rs. 700. (iii) Exh. 17, Messrs United Bank Ltd.'s certificate dated 3‑3‑1975 certifying the payment of Rs. 1,050 which catered for the period commencing from April, 1970 to 30‑9‑1970. It has also been proved that on 27‑3‑1971 the appellant sent a money Order (N. 3879) for a sum of Rs. 700 for the period of October, 1970 to January 1971, and not up to March, 1971 as averred in the written statement by the appellant, which was refused by the respondent as she had already filed rent application on 1‑3‑1971. It may be pertinent to mention that the appellant in his aforesaid letter dated 19‑10‑1970 Exh. 14 addressed to the respondent pointed out to her that the appellant was surprised when the respondent's representative called on him demanding the rent of the premises and further pointed out that he had made payments in the aforesaid manner and requested her to issue rent receipt against the aforesaid cheque for Rs. 1050, being the rent for the months of April, 1970 to September, 1971. It is an admitted position that no reply to the above letter was sent by the respondent nor any rent receipt for the period from April, 1970 to September, 1970 was issued. After that without receiving any receipt or reply the appellant sent the aforesaid money order on 27‑3‑1971 for the period from October, 1970 to January, 1971. It may also be pertinent to observe that Mr. Muhammad Ali Sayeed has also invited my attention to the fact that above Exh. 8 does not bear any date, whereas the appellant in his aforesaid letter dated 11‑10‑1970 has given 19‑4‑1970 as the date of the aforesaid receipt and the fact that the appellant in his written statement as well as in his aforesaid letter dated 19‑10‑1970 has mentioned 20th August, 1970 as the date of the cheque for Rs. 1,050, whereas in the aforesaid Messrs United Bank Ltd's certificate the date of the cheque given is 1‑8‑1970. In my view, the above discrepancies are of no significance inasmuch as P. W. 1 Ibrahim has admitted the issuance of the rent receipt Exh. 8 for the two months mentioned therein and, therefore, the fact that no date of the issuance was mentioned in the above rent receipt would not make any difference. Furthermore, no default for the period mentioned in the said receipt has been averred in the rent application as pointed out hereinabove. It is true that in the written statement as well as in his aforesaid letter dated 19‑10‑1970 the appellant had mentioned 20th August as the date of the above cheque, whereas the Bank in its aforesaid certificate had given 1‑8‑1970 as the date of the cheque. However, the above discrepancy is also of no significance inasmuch as the cheque number given by the appellant in his written statement as well as in his aforesaid letter dated 19‑10‑1970 is the same which has been mentioned in the above Bank's certificate Exh.

17. Furthermore, the above cheque was presented for clearance on 22‑8‑1979. It seems that the appellant must have given the above cheque approximately on or about 20th August, 1970. In view of the above state of evidence on record the respondent has failed to prove the default as alleged in the rent application i.e. default for the period commencing from April, 1970 to February, 1971. 6. (a) However, the question which remains to be considered is, as to whether there was any alleged default subsisting in terms of section 13(2)(i) of the Ordinance at the time of filing of the rent application. It has been urged by Mr. Khalid Ishaque that since the appellant had alleged a specific default, the learned First Appellate Court was not justified in setting up a new case for the respondent and in granting ejectment on a new ground, namely, that there were repeated defaults according to the appellant's own averment. Whereas it was contended by Mr. Muhammad Ali Sayeed, learned counsel for the respondent that under section 13(2)(i) of the Ordinance, what is to be proved by a landlord, is default/defaults within the meaning of the above provision and that there was no legal requirement to specify the period of default in view of the fact that the law of pleading is not applicable to rent cases. Mr. Khalid Ishaque has referred to the case of Muhammad Saddiq v. Mst. Ghafuran Bibi (1), the case of Syed Rashid Hussain and 2 others v. Hussain Haji Ahmad (2), the case of Messrs Faridsons Ltd. and another v. Government of Pakistan (3), the case of Sardar Ashiq Muhammad Khan Mazari and .3 others v. Chairman, Federal Land Commission Islamabad and 4 others (4) and the case of Niaz Ali v. Ibrahim (5). Whereas Mr. Muhammad Ali Sayeed has relied upon the case of Subhan Ali alias Sobho v. Mst. Sat Bai (6), the case of Haji Fida Hussain v. Muhammad Ibrahim Khan (7), the case of Messrs Textile Trading Company Ltd. v. Syed Jalilur Rehman and 7 others (8), the case of Muhammad Alimullali v. Ziaul Islam (9), and the case of Alifdin v. Khadim Hussain (10). (b) Reverting to P L D 1971 S C it may be observed that the facts of the above case were that wife brought a suit for dissolution of marriage on the ground of habitual cruelty, non‑maintenance and misappropriation of property and ornaments. Upon finding against plaintiff on all the above points the suit was dismissed by the trial Court. However, the High Court granted dissolution of marriage by way of 'khula". It was held by the Supreme Court that the procedure adopted by the High Court was highly improper as the defendant in the suit did not have the opportunity of contesting the above issue on the question of 'khula' '. (c) With reference to 1973 Note (Karachi), it will suffice to observe that in the above case it was held that though the provisions of Civil Procedure Code are not applicable to proceedings under the Rent Ordinance, but a party cannot be allowed even in rent proceeding to advance a plea inconsistent with his own plea. (d) Reverting to P L D 1961 S C it may be stated that the licence of Messrs Faridsons to act as an importer and exporter was suspended without any prior notice, which action was held to be illegal by the Supreme Court inter alia on the ground that no person should be condemned unheard and that the above suspension was in violation of the above principle of natural justice. It was observed by Cornelius, J. that, "I found that the proceedings are judicial if the matter has to be decided on evidence produced and after opportunity to the person concerned to meet the case against him, and the determination can form the basis of an order entailing civil consequences to a party". (e) Reverting to P L D 1977 Lahore, it will suffice to observe that while deciding a writ petition against the order passed under Martial Law Regulation 115 by the Federal Land Commission, it was observed by Mushtaq Hussain, J. that "the purpose of the issuance of notice to a party whose rights are to be determined is that he should not be condemned unheard. Hearing of course requires that the person to be heard should be in the know of the case that he has to meet". (1) P L D 1 71 S C 192 (2) P L D 1973 Note 138 at p. 209 (3) P L D 1961 S C 537 (4) P L D 1977 Lah. 461 (5) P L D 1976 Lah. 1057 (6) P L D 1964 Kar. 206 (7) 1972 S C M R 262 (8) 1972 S C M R 384 (9) P L D 1973 Kar. 56 (10) 1980 S C M R 767 (f ) With reference to P L D 1976 Lahore, it may be observed that in the above case the facts of the case were that the landlord filed a rent application for ejectment on the ground that the tenant was in arrears of rent for the period commencing from April, 1973 to August 1973. The above application was granted by the learned Rent Controller, which was upheld by the learned 1st Appellate Court. The tenant filed a second appeal in the High Court, 2 orders of the Courts below were set aside. It may be observed that in the above case it was pleaded by the tenant that the landlord used to receive rent periodically after intervals and not regularly every month. In support of the above averment he produced 3 rent receipts. It was also alleged by the tenant that in fact he had paid the rent for the aforesaid months, for which no rent receipt was issued by the landlord. On the basis of the above averments, it was held that the landlord failed to prove that the tenant had committed a deliberate default and that it was a fit case, in which the discretion should have been exercised in favour of the tenant. Zakiuddin Pal, 1., observed as follows in para. 11 of the judgment; "It has been argued on behalf of the respondent that in case of non payment of rent, it is obligatory to pass ejectment order against the tenant. Such question can be resolved only in the circumstances of each and every case. If default has been committed by a. tenant deliberately then order of ejectment against him should be passed, but in case deliberate default is not proved then it is discretionary with the Controller to pass such order. He may or may not pass ejectment order against the tenant in the ,given circumstances of the case though default in the payment of rent is proved. It has been held to be so in Muhammad Shafi v. Iqbal Ahmad and another and Major Feroze Din Khan v. Sh. Muhammad Amin." (g) Reverting to the case of P L D 1964 Karachi, it may be stated that in the above case it was held that a default committed by a tenant cannot be wiped out or erased, nor a penalty incurred be stayed off by subsequent pay ment. The above observation was made with reference to the contention raised by the learned counsel for the tenant before the High Court in the Second Appeal that since the filing of the second appeal in the High Court, his client has been most punctilious in payment of his monthly rent to the respondent landlady at the enhanced rent. (h) With reference to 1972 S C M R, it will suffice to observe that it was held that tender of rent in terms of section 13(2)(i) should be within time prescribed therein and that the fact that the defaulting tenant had deposited rent with the Rent Controller before the ejectment application was moved by the landlord is of no consequence. (i) Reverting to 1973 S C M R 384, it may be observed that the conten tion raised by the learned counsel for the tenant that the Rent Collector of landlord used to come at intervals of several months and used to collect rent in lump sum was not accepted and it was held that the above implied term was never pleaded by the petitioner in his written statement. It was further held that as the landlord's Rent Collector having denied the above practice the tenant failed to prove that the practice was so consistent as to give rise to an implied agreement. (j) Reverting to P L D 1973 Karachi, it may be stated that in the above case it was pleaded by the tenant chat as the rent amount was small, the landlord himself wanted to realise in lump sum in large amounts. It was held as the modification of the statutory obligation was alleged, burden of proof of the above modification heavily was on tenant, and that since no particulars modifying agreement were given in the written statement nor in defence evidence, the alleged modifying agreement was not proved. 1t was further held that in view of sections 91 and 92 of the Evidence Act, the tenant could not have led evidence on variations of the terms of the agreement. (k) Whereas in 1980 S C M R 767 it has been held that acceptance of rent by a landlord after due date does not make the relevant term in the lease deed as to the payment of rent on due date inoperative and only means condonation of default.

7. From the above‑cited cases the following principles can be deduced; (i) That a Court cannot grant relief entirely on a new ground not pleaded iii the pleadings e.g., a dissolution of marriage by way of 'khula' ' cannot be granted if the suit for dissolution was filed on the grounds of cruelty, non‑maintenance etc. (ii) That though strictly the law of pleading is not applicable to rent proceedings, but even in a rent case a party cannot be permitted to raise a plea at the trial which is inconsistent with the pleas raised by him in his pleadings. (iii) That a party should have a fair opportunity to meet the case of the other party as disclosed. (iv) That payment of rent by a tenant after committing default will not erase such default unless from the conduct and the facts of the case, it can be inferred that the landlord had waived/condoned the default. (v) That the acceptance of rent by the landlord after due dates mentioned in the lease deed/tenancy agreement shall not constitute variation of the agreement or will not render such conditions inoperative, but it would amount to condonation of the specific breaches. (vi) That a tenant cannot be permitted to urge that there was any practice in respect of payment of, accumulated rent periodically unless he pleads the same in the written statement or gives full particulars of such payments in written statement, and leads evidence in respect thereof. (vii) That a Rent Controller is not obliged to grant an application for ejectment if from the facts and circumstances of the case, it appears that there was no deliberate default on the part of the tenant.

8. From the evidence on the record the following facts stand proved. (i) That after the expiry of I1 months mentioned in the tenancy agree ment, dated 1st September, 1968 Exh. 6, there was no fresh agreement in writing. (ii) That till August 1970, the respondent's Rent Collector P. W. I Ibrahim used to collect rent from the appellant at his place, which fact has been admitted by the above P. W. 1 in his cross‑examination. (iii) That in August 1970 the power of attorney in favour of P. W. 1 Ibrahim was terminated, thereupon the said witness through his letter dated 14th September, 1970 Exh. 10 asked the appellant to pay the arrears and current rent to the respondent directly either by cash or cheque. (iv) That on 19th October, 1970 the respondent's representative called on the appellant and demanded arrears of rent, though no rent was due. Whereupon the appellant wrote his aforesaid letter dated 19th October, 1970 Exh. 14 to the respondent giving full details of the payments made by the appellant towards the rent and requested her to issue a rent receipt for a sum of Rs. 1,050, which was remitted through a cheque mentioned therein towards the rent for the months of April 1970 to September, 1970. (v) That the respondent did not send any reply to the appellant's above letter Exh. 14 nor sent the rent receipt requested for. (vi) That before the service of the notice of the rent application, the appellant sent money order No. 3879 on 27‑3‑1971 for a sum of Rs. 700 for the period commencing from October, 1970 to January 1971, but the above money order was refused by the respondent on the ground that she had already filed a rent application i.e. 1‑3‑1971. 8. (a) Reverting to the contention of Mr. Khalid M. Ishaque, that the learned 1st Appellate Court has set aside the order of the learned Rent Controller and has granted ejectment proceeding on a ground other than the ground pleaded in the rent application, it may be observed that he has referred to para. 4 of the rent application, which reads as follows; "That the opponent has committed default in the payment of monthly rent inasmuch as he has failed and neglected to pay the due and lawful rent from the month of April, 19;0 to February, 1971 amounting to Rs. 1,925 (Rupees One Thousand Nine Hundred and Twenty‑ Five only) to the applicant in spite of her repeated demands in this behalf, hence this application for his eviction." It may be noticed that from the above‑quoted para. 4 of the application, it is evident that the respondent has made the following two averments for the purpose of seeking ejectment . (i) That the appellant failed and neglected to pay due and lawful rent for the period commencing from April, 1970 to February, 1971, amounting to Rs, 1925. (ii) That the appellant in spite of the respondent's repeated demands in this behalf failed and neglected to pay the above amount. It has been proved as pointed out hereinabove that the rent for the above period was not due and payable at time of the filing of the rent application, but rent for the period commencing from 1st October, 1970 to February, 1971, was due and payable. It has further been proved that the respondent never demanded the payment of the alleged arrears of rent from the appellant after the receipt of his aforesaid letter dated 19th October, 1970 Exh.

14. It is also evident that in spite of the receipt of the appellant's aforesaid letter, the respondent was insisting upon for the payment of rent for the period commencing from April, 1970, though she had already received payment admittedly up to 30th September, 1970 through the cheque mentioned in M/s. United Bank certificate dated 3rd March, 1975 Exh. 17, inasmuch as that she had filed the present ejectment proceeding on the basis that the appellant had not allegedly paid rent since April, 1970. The learned counsel for the appellant's above contention that the learned 1st Appellate Court has granted ejectment on a ground other than the ground pleaded by the respondent is not devoid of force. Since the respondent had not sought. ejectment for any default allegedly committed prior to April, 1970, the learned 1st Appellate Court could not have relied upon on any alleged default allegedly committed by the appellant prior to the aforesaid month namely April, 1970. Furthermore, it was not the case of the respondent in the rent application that the rent for the period commencing from April, 1970 to September, 1971 was not paid by the appellant within the statutory period, on the other hand the averment was that in spite of repeated demands the appellant had failed to pay rent for the period commencing from April, 1970 to February, 1971. In this view of the matter the respondent could not have relied upon the delay if any in payment of rent for the above period commencing from April, 1970 to September, 1970. (b) As regards the question as to whether the 1st Appellate Court could grant ejectment on the ground that at the time of the filing of the rent appli cation, the rent for the period commencing from October, 1970 up to February, 1971 was not paid, it may be pertinent to mention that in terms of sec tion 13(2)(1) of the Ordinance, the rent for the month of October, 1970 could be paid by 31‑12‑1970, for the month of November, 1970 by 30‑1‑1970, for December by 1‑3‑1971 and for January, 1971 up to 1‑4‑1971. Since the appellant sent a money order on 27‑3‑1971 for the period commencing from October, 1970 to January, 1971 (which was refused by the respondent as she had already filed ejectment application) there was no default in respect of January and February, 1971. However, it can be urged that there were defaults in respect of October, November and December, 1970 at the time filing of the rent application in question. In this regard it may be observed that there is a mark difference between the provisions of section 1312) and section 13(6) of the Ordinance, whereas in the former case Rent Controller has been given discretion not to grant ejectment application on the ground of non‑payment of rent within the statutory period if the facts of the case warrant such a conclusion. The words "the Controller may make an order directing the tenant to put the landlord possession of the building . . . . . . . . ," have been used in section 13(2), whereas in section 13(6), it has been provided that if a tenant makes default of a rent order passed under the above subsection, his defence shall be struck off and the landlord be put into the possession of the property. The use of the word "stall" in subsection (6) of section 13 in contrast to the word "may" in subsection (2) of section 13 clearly indicates :hat the word, "may" used in the latter subsection is to be construed as "may" and not as "shall" and, therefore, Rent Controller has discretion in the matter. Furthermore, even while interpreting section 13(6) the High Courts and the Supreme Court of Pakistan have consistently held that in considering the question of default under section 13(6) if Rent Controller is satisfied that the default has occurred for a reason beyond the tenant's control, he may decline to strike off the tenant's defence. In this regard it will suffice to refer to an extract from the judgment of the celebrated case of Ghulam Muhammad Lundkhor v. Safdar Ali P L D 1967 S C 530 , which reads as follows :‑ "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non‑compliance. To establish default one must show that the non‑compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order or direction." (c) In view of the fact that Rent Controller has discretion in a case of non‑payment under section 13(2) of the Ordinance, the question which requires consideration is, as to whether in the instant case the learned Ist Appellate Court was justified in interfering with the discretion exercised by the learned Rent Controller in favour of the appellant, and to grant eject ment application. The latter question leads us to a further question, as to whether there were circumstances in the instant case as to warrant the exer cise of discretion by the learned Rent Controller in favour of the appellant. In my view the learned Rent Controller could have exercised discretion in favour of the appellant because of the presence of the inter alts following facts in the instant case. (i) That on 19‑1OR1970 the respondent had demanded rent for the period commencing from April, 1970 to September, 11970, though she had already received the payment of rent for the above period as evidenced by Exh. 17. (ii) That the respondent after the receipt of the appellant's aforesaid letter dated 19th October, 1970, Exh. 14 did not send any reply nor demanded the tent for the correct period. On the other hand the respondent has filed the rent application in question on the assump tion that the rent was due since April, 1970. (iii) That the respondent failed and neglected to issue rent receipt for the period commencing from April, 1970 to September, 1970 in spite of the request made by the appellant through his letter dated 19th October, Exh. 14. (iv) Though it was not expressly pleaded by the appellant that there was any practice of making payment of accumulated rent periodi cally but full details of such payments were given in para. 2 of the written statement, which averments have been proved by the appel lant at the trial. The object of the law of pleadings seems to be that other party shall not be taken by surprise. If a party gives full particulars of the mode of payment in his written statement from which it can be spelled out that the landlord without protest has been accepting accumulated rent periodically in the immediate past prior to the filing of the rent case, in my view the omission to raise the plea of practice in the written statement will hot be fatal as the law of pleading is not strictly applicable to rent proceedings. In this view of the matter the learned Rent Controller while considering the question as to whether to grant the ejectment application in question or not for non‑payment of rent could have taken into consideration the fact that the respondent had been accepting accumulated rent for a few months in the past without any protest. (v) That the appellant sent money order for Rs. 700 on 27‑3‑1971 being rent up to January, 1971, which was refused by the respondent for the reason stated hereinabove. The above tender was in consonance with the past practice and was prior to the service of the notice of the rent case which was effected on 8‑4‑1971. (vi) That in view of the above facts, the instant case is not a case of deliberate default. (d) I may observe that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2) (i) of the Ordinance, but if a landlord by his representation/conduct/omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance is not to be adhered to, and, thereafter the landlord wishes to enforce the above provision strictly, in that event, in my opinion, the landlord should first put the tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of the above provision or in any case the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein. Any other view will result in miscarriage of justice. It is a matter of common knowledge that during last few years in Karachi occupancy values inter alia of commercial premises and their rental have been enormously increased, which has generated desire on the part of some landlords to cause eviction of their tenants and in order to achieve the said object, they deliberately cause the commission of default in payment of rent by the tenants.

9. That in view of the above discussion, it is evident that the learned Rent Controller did not exercise discretion in favour of the appellant arbi trarily or capriciously or unreasonably, and, therefore, the learned Ist Appel late Court was not justified in interfering with the discretion exercised by the learned Rent Controller. However, the question which remains to be con sidered is, as to whether this Court while considering the case in a second appeal can interfere with an order of the 1st Appellate Court. It has been vehemently urged by Mr. Muhammad Ali Sayeed, learned counsel for the respondent that this Court cannot interfere with a finding of fact arrived at by a lst Appellate Court, unless it is found to be perverse. In support of the above contention he has referred to the case of Umer Sorts Ltd., Karachi v. Tahir Corporation 1974SCMR384, in which the Supreme Court maintained the finding of the Ist Appellate Court and of the High Court and it was observed that the concurrent finding of fact cannot be assailed unless it is a case of misreading of evidence by the Courts below. In my view the facts of the above case are distinguishable from the instant case inasmuch as there is no concurrent finding of the two Courts below on the question of default. In this regard, it may be pertinent to refer again to the aforesaid 1976 Lahore and also of 1973 Karachi case referred to hereinabove in para.

6. In the former case the High Court interfered with the concurrent finding of the two Courts below on the question of default in favour of the landlord and had set aside ejectment order, by holding that the two Courts below did not exercise discretion properly. Whereas in the above Karachi case, the High Court reversed the judgment of the 1st Appellate Court in the second appeal and restored the order of the Rent Controller and held that the Ist Appellate Court was not justified in setting aside the order of the Rent Controller on the question of default. In my view as in the instant case the learned 1st Appellate Court was not justified in interfering with the discretion exercised by the learned Rent Controller, this Court is E competent in the above second appeal to rectify the above error committee by the lst Appellate Court. In this view of the matter I allow the appeal and set aside the older of the learned lst Appellate Court under appeal and restore the order of the learned Rent Controller dated 6‑8‑1975, with the result that the respondent's rent application stands dismissed. However, there will be no order as to costs. S. Q. Appeal allowed.