1986 PLP 555 (CLC)

Mst. Jana Bai v. Mst. Gulshan 1984 C L C 1061 and Yan Loong Wu v. Sultan Jehan and others 1984 C L C 2369distinguished. M. Idress for Appellant. Raja Qureshi for Respondents. Dates of hearing: 30th and 31st October, 1985. This second appeal under section 15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the landlord /appellant against the order of first appellate Court whereby the ejectment order passed by the Rent Controller was reversed and the application for eviction filed by the appellant on the ground of default in payment of rent and personal requirement was dismissed. The appellant instituted a rent case alleging default against the respondents from September, 1974 upto September, 1975. He also alleged in paragraph 5 of the rent application that he requested many times to the respondents to vacate the premises in question as per their promise but they failed to vacate the premises which was the only shop where he would start business of handicraft. The respondents in their written statement denied that they committed any default in payment of rent and took the plea that the appellant was not issuing any rent receipts for the rent paid by them and that they had paid rent upto the month of September, 1975 and the present application was filed as a retaliation for the demand of the respondents for issuance of rent receipts for the past months. In paragraph 4 of the written statement the respondents have alleged that the premises are not required bona fidely for the use of the appellant. The appellant as well as respondents filed proposed issues before the Rent Controller in the case. The Rent Controller on 7‑9‑1976 adopted the issues proposed by the respondents. Both the parties led evidence on the issues adopted by the Rent Controller and after hearing the parties the Rent Controller granted the application on both the issues. On first appeal the learned first appellate authority reversed the findings of the Rent Controller on both the issues and dismissed the application of the appellant for ejectment. In this second appeal the learned counsel for the appellant contends that the reversal of the findings of the Rent Controller on the two issues is based on a misreading of evidence and a perverse approach to the evidence before the Court. It is contended by the learned counsel for the appellant that the findings of the first appellate Court that the duplicates of the rent receipts Exhs. 7 to 31 were got signed by the appellant at the time of execution of Exh.6 is not only perverse but is based on conjectural appreciation of the evidence on record. It is further contended by the learned counsel that the findings of the first appellate Court on issue of default that because the appellant was an allottee of the shop and, therefore, he could not pass on the possession to anybody or sublet to any person without taking the risk of the cancellation of the allotment and, therefore, it stood to good reason that he did not execute a proper rent agreement and also avoided to pass on rent receipts to the respondents is equally perverse finding based on no evidence. With regard to the reversal of the finding of the Rent Controller on the issue of personal and bona fide requirement by the first appellate authority the learned counsel contended that the conclusion reached by the first appellate authority that there being no issue with regard to the personal and bona fide requirement raised in the application and, therefore, no such issue could have been framed in the case is equally based on a perverse approach to the case. The learned counsel for the respondents on the other hand supported the findings of the learned first appellate authority on the issues of default and personal requirement on the same reasoning which is mentioned in the order of the first appellate authority. After hearing learned counsel for the parties at length I am of the view that there was no justification at all for reversal of the findings of the Rent Controller in the case and the reasoning given by the learned first appellate authority while reversing the finding of the Rent Controller on both these issues is neither supported by evidence on record nor based on any logical reasoning. The scope of interference by second appellate Court with the findings of fact when the findings of the first appellate Court are at variance with the findings of the trial Court has been considered in the case of Madan Gopal and 4 others v. Maran Bepari and 3 others P L D 1969 SC 617 and following observations were made by the Court in this regard:‑

"If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal." In the light of above‑stated legal proposition I will examine the findings of the first appellate Court on the issues of default and personal requirement. The appellant in his evidence before the Controller stated that the premises were let out to the respondents in September, 1972 at the rate of Rs.250 per month. He produced the writing Exh.6 which was signed by the tenants Habib and Yousuf. He alleged in his evidence before the Rent Controller that he was issuing rent receipts regularly to the respondents and also used to get signature on the duplicate of the receipt. He produced the duplicate receipts for the month of August, 1974 as Exh.7 and alleged that the respondents failed to pay rent to him from September, 1974 till the filing of the rent case. In the cross- examination he denied that he demanded enhanced rent and as the respondents refused to accept the same he filed the present case. He was asked in the cross‑examination if he was in possession of duplicate receipts for other months alleged to have been issued to the respondents and in reply thereto he produced the duplicate receipts for all the remaining months as Exhs.8 to

31. To another question in cross-examination he stated that these receipts were typed on different times. He denied the suggestion in the cross‑examination that all these receipts were signed on the second day of the execution of Exh.6. He also denied the suggestion that he changed the year in Exh.7. The further suggestion given to him in cross‑examination that he got receipts signed on blank and thereafter he inserted month and year was also denied. It is also pertinent that it was further suggested to the appellant in cross‑examination that receipts Exhs. 9 to 31 were not signed by tenant Habib and were forged but this suggestion was also denied by the applicant. To another suggestion in cross‑examination that the rent was sent by money order which he refused, he stated that the money order was sent to him by one Decora craft and he refused to accept the same as Decora craft was not his tenant. It will thus, appear from the above cross‑examination of the appellant that the plea taken by the respondents with regard to the duplicate receipts was two‑fold. Firstly that all these receipts were got typed and signed on the second day of the execution of Exh.6 and secondly that Exhs. 9 to 31 were forged documents which did not bear signatures of tenant Habib. At this stage I may refer to the plea taken by the respondents in their written statement with regard to these receipts. The applicant in his application for ejectment in paragraph 2 alleged that the rent was paid by the respondents upto August, 1974 and he issued proper receipts to them and is in possession of the duplicate of the same. He also produced last duplicate of the receipt issued in August, 1974 (Exh.7). The respondents in their written statement alleged that they had paid rent upto July, 1975 but the appellant did not issue any receipts. It was further alleged that in the month of September, 1975 when the respondents pressed for issuance of the receipts for the rent paid by them for previous months the appellant refused and threatened them that they will be evicted from the premises. It was also alleged by them that they sent the rent for August, 1975 through money order but the same was refused by the applicant. It will be seen that in their written statement in spite of knowledge of the fact that the applicant had alleged that he has in his possession duplicate receipts for all these months the respondents neither alleged that these receipts were got typed and signed on the second day of the execution of Exh.6 nor it was alleged that these receipts are forged and not signed by the tenant Habib. Apart from it the case set up by the respondents in the cross‑examination of the appellant that the receipts Exhs. 9 to 31 were forged was completely belied in the examination‑in‑chief of Mu hammad Habib (tenant) who stated that he had signed the receipts Exhs. 7 to 31 on the very same day of the signing of Exh.6. This statement of the tenant Habib in examination‑in‑chief is quite inconsistent with the case put to the applicant in cross‑examination that Exhs.7 to 31 were signed on the second day of Exh.6 and that Exhs. 9 to 31 were forged and did not bear the signatures of Habib. The learned first appellate Court while reversing the finding of the Rent Controller on the issue of default made a strange approach to the evidence in the case. I quote here the exact words used by the learned first appellate authority in reaching the conclusion that the appellant did not issue receipts for the rent received by him. These are the words of the first appellate authority:‑

"Thus, to start with it appears that as an allottee of the said shop the respondent/applicant could not pass on the possession of the same to anybody or sublet it to any person without taking the risk of the cancellation of allotment. With this situation in view, it stands to reason that the landlord did not execute a proper rent agreement and also avoided to pass on the receipts as well." The above conclusion of the learned first appellate authority to say that least is wholly perverse as it was neither the case of the respondents in the written statement nor in the cross‑examination of the applicant that because the appellant was merely an allottee of the shop, therefore, he could not pass on the possession of the same to anybody or sublet the same and, therefore, the appellant avoided to pass on the receipt and execute a proper rent deed. The approach of the learned first appellate authority to the case is devoid of any logical approach to the evidence on record as the tenancy in favour of the respondents is established by Exh.6 wherein it is clearly stated that Muhammad Habib and Yousif have taken possession as tenant of Shop No. 224, Sadar Co‑operative Market, Abdullah Haroon Road, Karachi from the appellant from September, 1972. Having admitted the respondents as tenant of shop in dispute in Exh.6, there remained hardly any reason for the appellant to conceal the fact that respondents were not tenant of the premises. The very perusal of the receipts Exhs. 7 to 31 will show that all these receipts bear the signature of the tenant Habib which he admitted in his examination‑in‑chief and it does not require any investigation to reach the conclusion that these receipts were typed on different typewriters and were written on different times. In these circumstances there was hardly any material available before the learned first appellate authority to reach the conclusion that these receipts were signed simultaneously at the time of execution of Exh.6 or that they were not issued to the respondents. The default is alleged in the application from September, 1974 and this is fully established by the duplicate receipts produced by the appellant. In the written statement the respondents alleged that the rent was paid upto July, 1975 and in his examination‑in‑chief tenant Muhammad Habib also first stated that he had paid rent upto August, 1974 but again said that he has paid upto August, 1975. The money order coupon which was produced in the Court was sent on 16‑9‑1975 and thereafter, until passing of the tentative rent order in the case on 25‑2‑1976 there was no tender of rent by the respondents to the applicant. Therefore, even on the basis of the allegations of respondents in their written statement as well as their evidence before the Rent Controller, they had committed default from August, 1975 onwards until the rent order was passed in the case. With regard to the tender of rent for the month of September, 1975 the money order coupon which is on record showed that it was sent by Decora craft and, therefore, the appellant was fully justified in refusing to accept the same. On the issue of personal and bona fide requirement the learned first appellate authority reversed the finding of the Rent Controller solely on the ground that it was not specifically pleaded by the appellant in his rent application and, therefore, this issue neither arose out of the pleadings of the parties nor it could be decided by the Rent Controller. The learned counsel for the appellant rightly contended that this conclusion of the learned first appellate authority is equally perverse. The ground of requirement of the premises is pleaded in paragraph 5 of the application as follows:‑ "

4. That the applicant many a time requested the opponent to vacate the premises in question as per their promise upon which the opponent kept the applicant all the time in high hopes but never fulfilled their promise to vacate the same. Muhammad Habib, the partner has got a shop premises/Shop No. 11 and Mr. Muhammad Yousuf has Shop No.10, in their own name in the said market i.e. Sadar Co‑operative Market, Abdullah Haroon Road, Karachi, whereas the applicant has no shop except the shop in question to start his business of handicraft." Although the word that the premises are required bona fide for the use of the appellant is not specifically mentioned but it will be seen that while replying this paragraph in the written statement the respondents in paragraph 4 of written statement stated as follows:‑

4. That para. No. 4 is denied. In any case such agreement is void and unenforceable in law. The applicant does not require the premises for his bona fide use." From the pleadings of the parties it is abundantly clear that there was no misunderstanding on the part of respondents, with regard to the issue of personal and bona fide requirement pleaded by the appellant. The fact that the personal and bona fide requirement was not pleaded by the appellant in a particular form or expression could not defeat the application unless it is shown that the party against whom, the issue was decided was misled by the pleadings or was prejudiced in his defence on account of insufficient pleadings on the issue. In the present case the respondents not only understood well the issue of personal and bona fide requirement raised by the appellant in his application but they replied it and joined on this issue by leading evidence before the Rent Controller. Apart from it the respondents themselves suggested this issues to the Rent Controller in their proposed issues which were adopted. In these circumstances the learned first appellate authority had no justification at all for reversing the findings of the Rent Controller on the ground that it was not specifically pleaded by the appellant in his application. The learned counsel for the respondents has referred to the case of Mst. Jana Bai v. Mst. Gulshan 1984 C L C 1061 and Yan Loong Wu v. Sultan Jehan and others. 1984 C L C 2369 to contend that where a particular plea was not raised specifically in the rent application, the Rent Controller could not allow the evidence on that issue. The cases cited by the learned counsel proceeded on totally different facts and have no application to the facts and circumstances of the present case. I accordingly reverse the findings of the first appellate Court on this issue as well. The appeal is accordingly accepted and the order of 1st appellate Court is set aside and that of Rent Controller is restored with cost. The respondents are allowed four months' time to vacate the premises subject to the condition that they will continue to deposit rent in Court during this period. A . A . Appeal accepted.