1970 PLP 1177 (MLD)

(4) What should the order be? The appellant examined himself whereas the respondent examined its General Manager only. The learned Rent Controller dismissed the said application by its order dated 8-4-198.1 against which the appellant has preferred this appeal. I have heard Mr. Khurshid Anwar Sheikh, Advocate for the appellant and Mr .N. A. Farooqi, Advocate for the respondent and with their assistance gone through the evidence, both oral and documentary, led by the parties in the case and I am of the considered view that this appeal must succeed, for the discussion appearing below. As regards the first issue about the maintainability of the ejectment application, the finding of the learned Rent Controller is erroneous. He has completely disregarded the evidence produced before him in this behalf. The intimation of the change of ownership was communicated to the respondent by the previous landlord, in writing, which was duly acknowledged by the respondent Ex. P

17. Intimation of the change of the ownership was also communicated vide by the appellant's Advocate, in writing, on 8-7-1972 which was also duly acknowledged in writing by the respondent vide Ex. P/18. In this notice, the respondent was also informed that the appellant was a legally constituted attorney and he was authorised to collect the rent and issue proper receipt thereof. After this intimation, the respondent paid the rent to the appellant upto June, 1977. In view of the respondent's accepting the appellant as landlord and paying rent to him, it does not lie in the mouth of the respondent to deny the relationship of the landlord and tenant. Reliance has been placed on a number of authorities, namely, Muhammad Rafique v. Mian Nadir Jang Bahadur and others 1984 S C M R 1226, Mehraj Din v. Muhammad Ismail 1980 S C M R 764 and Yousuf and another v. Muhammad Zubair and another P L D 1986 S C

154. In the first case 1984 S C M R 1226 the Honourable Supreme Court held that no exception can be taken against the judgment of the High Court, for it stands proved from the documents produced in evidence that appellant had himself admitted the respondent as his landlord in respect of the demised premises, and he, therefore, cannot be permitted to deny his title to the property. This position has already been clarified by this Court in Kalimullah v. Amin Hazin and others 1976 S C M R

77. In the second case 1980 S C M R 764 it was observed that "in these circumstances, we are not persuaded to differ with the finding of the High Court that the petitioner had remitted rent for the premises in dispute to the respondent and that as such he was his tenant, within the meaning of clause (1) of section 2 of the Urban Rent Restriction Ordinance:" In the third case P L D 1986 S C 154, the following observations of the Honourable S C are pertinent to the instant case. It reads as under:-- "We are afraid this contention is wholly misconceived. The terra `landlord' has been specifically defined in section 2(f) of the Sind Rented Premises Ordinance, 1979, and reads as follows:-- "

2. Definitions: -In this Ordinance, unless there is anything repugnant in the subject or context:-- (a) to (e) .. (f) landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect such premises. A reading of this provision clearly shows that the word `landlord' been given an extended meaning, to include not only the owners but also persons who, for the time being, are either authorised or entitled to receive rent is respect of the premises in question and they need not be owner of the same: The objection of the respondent inter-linked with the first one that the appellant is not the owner and the application has been filed without any power of attorney executed in favour of the appellant by the owners in whose name the property has been shown to have been purchased is also misconceived. As provided in section 2(f) "landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises". Therefore, a landlord for the purpose of filing an application under the provisions of Rent Restriction Ordinance need not necessarily be the owner. Reliance has been rightly placed by the counsel for the appellant on Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqoob P L D 1976 Kar. 992, wherein a learned Single Judge of this Court observed that--"this argument flows from an erroneous assumption that a landlord has, of necessity, to be the landlord of the premises in question. Section 2(e) declares a person to be the landlord who for the time being is entitled to receive rent. It does not insist that the condition of ownership of the building of rented land should be fulfilled before a person could be the landlord of the premises in dispute." As regard the production of the power of attorney by the appellant, it may be observed that no power of attorney is required to be produced by a landlord, if an application has been moved by him for the ejectment of a tenant. Reliance has been placed on Amir Ali v. Muhammad Hashim and 2 others P L D 1976 Kar. 857, Muhammad Sharif v. Muhammad Amir P L D 1977 Lah. 516 and Haji Muhammad Rafiq v. Shahanshah Jchan Begum P L D 1987 Kar.

180. In the first case P L D 1976 Kar. 857 Naeem-ud-din, J. (now, Judge of the Supreme Court) observed that "so far as the second ground is concerned, it is clear that the petitioner had taken the house on rent from Mohammad Hashim and paid rents to him for five months. This position stands sufficiently proved, on record. It is in evidence that the house was actually purchased by Hashim. He, however, got it registered in the name of his minor son, Hyder Khan. He was personally looking after this property and had rented out to petitioner, who had attorneyed to him as the landlord. Muhammad Ilashim's application for ejectment is, therefore, to be treated as an application by landlord in the meaning of section 2(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959, he being the person for the time being entitled to receive rent in respect of the house. Even otherwise he is entitled to receive rents as the guardian of his minor son who is the real owner of the property. It is, therefore, immaterial if he is not the owner of the house, for, so far as petition is concerned, he is estopped, by the bar of section 116 of the Evidence Act, to deny the capacity of Muhammad Hashim as his landlord in view of the facts proved on record that he had been inducted into the premises by Muhammad Hashim and had attorneyed to him as the landlord by paying rents. There is, therefore, no merit in the second contention also:' In the second case P L D 1977 Lah. 516 Muhammad Afzal Zullah, J. (now, Chief Justice of Pakistan) observed that "I do not agree with the legal ' proposition put forward by the learned counsel that if a husband receives the rent on behalf and for the benefit of his wife, he cannot be treated as landlord unless he has a formal authority from the wife to do so. There is no such requirement mentioned in the Ordinance. Section 2(c) reads as follows:-- " `landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sub-lets any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord:' "It is obvious that the expressions "on behalf or for the benefit of are very wide. There is no such rider in the statute that the entitlement of any person to receive rent on behalf of another person should be based on any writing. It is necessary to point out that wherever formalisation through 'writing was felt necessary by the law maker, it was so provided. In section 2(f)-(definition of `tenant') it is provided that a person placed in occupation of a property by its tenant, "unless with the consent in writing of the landlord...:', would not be included in the definition of "tenant" goes upto the limit of including a person by or on whose account rent is payable for a property, in this category the provision in the definition of "landlord" has gone further to include the extending provision, namely, "whether on his own account or on behalf or for the benefit of any other person ...:'The case-law shows that this provision has been given wide interpretation and sometimes even servants receiving rent on behalf of landlords and owners have been treated as landlords by virtue of the definition. It is accordingly held that the respondent, by virtue of the definition, has rightly been treated as landlord and the question of relationship of landlord and tenant has correctly been determined." In the third case P L D 1987 Kar. 19811 a Learned Single Judge of this Court observed that "in this view of the matter it is not to decide the question whether Muhammad Rehman was authorised by proper power of attorney to sign and verify the eviction application as I have already earlier held that the words "duly authorised" in Order VI, rule 14 need not be restricted to mean authorised by proper written authority or by power of attorney. The objections are therefore overruled." In view of the fact and law stated above, I am clear in my mind that the application was clearly maintainable under the provisions of Sin(h Rented Premises Ordinance, 1979. As regards the second issue about default, admittedly, the rent was tendered and paid to the appellant upto June, 1977. The rent, in fact, was being paid in advance. The case of the respondent, however, is that in January, 1978 the appellant demanded 100 per cent increase in the rent. As the respondent was not agreeable to it the appellant had to come to respondent's shop for deciding the increase in rent but he failed to turn up. The rent was, however, sent by the respondent to the appellant by money order dated 5-4-1978, Ex. A/19-22, in the name of the appellant, as attorney, which was refused. The respondent also appears to have sent the rent by cheque dated 4-4-1978 Ex. A/23 alongwith covering letter Ex. A/23. Upon refusal by the appellant, the respondent deposited the rent in Misc. Application No. 1847 of 1978 on 18-4-1978 in the Court of the learned Rent Controller in the name of the appellant. It is, thus, apparent that the rent was tendered by cheque, sent by money order or deposited in the Court was after a clear default of about 9 or 10 months had taken place. The appellant, in the circumstances, was not bound to accept the said rent after the default had been committed. The learned Rent Controller has failed to take notice of these facts as required by law and came to erroneous conclusion that the respondent was not a wilful defaulter. Even if the demand of increased rent by the appellant, as urged on behalf of the respondent, is taken into consideration, the same, though denied was made in January, 1978, as admitted by the respondent himself. Even otherwise, the demand of increased rent by the landlord does not give rightly to the tenant to withhold the rent legitimately due against him. Another point which weighed with the learned Rent Controller is the security deposit of Rs. 5,00,000 as alleged by the respondent. Admittedly, there is no mention of the security deposit of Rs. 5 lacs in the written statement filed by the respondent. It is for the first time that the respondent has come out with this plea in his affidavit of evidence filed by him in rebuttal to the appellant's evidence. The plea to my mind, appears to be not only afterthought but also false. The intimation was received by the respondent from the previous owner as to the change of the ownership which was not only received by him but also acknowledged/endorsed by him stating "no objection" thereon and moreover, the receipt of a proper notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was also acknowledged by the respondent as long back as 1972. At no point of time the respondent made such an allegation during all these years right from 1972 to 1981 except when the affidavit of evidence was filed. Furthermore, notice of intimation as to the purchase of the property by the appellant dated 18-8-1972 Ex. P/18 at page 131 of the trial Court record, clearly, mentions that the property has been purchased by the new owners "free from all encumbrances". It is also significant to note that the said notice under section 13 A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was received by the Director of the respondent with an endorsement of "no objection". Even otherwise, no amount of evidence can be locked in a plea which was not put forward in pleadings. Reliance is placed on Siddiq Muhammad Shah v. Mst. Saran and others A I R 1930 P C 57, Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad P L D 1976 S C 469 and Nasim Shah v. Mohammad Ali Batalvi P L D 1979 Note 3 at p.

2. In the first case A I R 1930 P C 57 it was held that "and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners, therefore, very truly found that no amount of evidence can be looked into upon a plea which was never put forward." In the second case P L D 1976 S C 469 it was observed by the Hon'ble Supreme Court that "it is a well-established rule that if a plea of fact is not pleaded no case can be founded on it". In the third case P L D 1979 Note 3 at p.2 a learned Single Judge of the Lahore High Court relying on the principle of secundum allegata probata held "that a party cannot be allowed to prove a fact which he never alleged in pleading". Learned counsel for the respondent submitted lastly that it was a practice to make payment in lump sum and so default cannot be attributed to the respondent. Reliance is placed by him on Inayat Ullah v. Zahoor-ud-din and another 1987 S C M R 1313 and Fazalur Rehman v. Mst. Sarwari Begum and others 1986 S C M R 1156 as relied on in Inayatullah's case. The learned counsel for the respondent also referred to an unreported order of the Hon'ble Supreme Court in Civil Petition for Leave to Appeal No. 540-K/84 Batula Fida Hussain Shaikh and others v. M/s. Burmah Oil Mills Ltd. I am afraid, all the three decisions are distinguishable inasmuch as they relate to a practice of payment of rent in lump sum which had fallen in arrears, whereas in the instant case, as established on the record right from the days of the previous landlord, it has been I t the practice to pay rent in lump sum in advance and not of the arrears (Ex. O/2 to O/7). This pica rather goes against the respondent. Even otherwise, the practice as held by the Supreme Court in several cases, Abdul Rashid v. Saleh Muhammad 1980 S C M R 506, Syed Riaz Ali v. Shabbir Ahmed Khan 1971 S C M R 598, M/s. Tar Muhammad Janoo & Co. v. Tahcr Ali and others 1981 S C M R 93 and Muhammad Saeed and five others v. Wazir Begum and another P L D 1976 Kar 1156, cannot override the provisions of a statute to the contrary. In the first case 1980 S C M R 506 it was held by the Supreme Court that -- "it has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance, 1959. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month:" In the second case 1971 S C M R 599 it was held that under section 13, the Rent Controller had the discretion to condone delay in payment of rent. That is true. Discretion is to be exercised judicially and not in an arbitrary manner. Default of ten months could not be condoned on any hypothesis. No exception can, therefore, be taken to the judgment and order of the High Court." In the third case 1981 S C M R 93 it was observed that -- "it is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot, in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not accept it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits." In the fourth case P L D 1976 Kar. 1156, it was observed by a learned Single Judge while referring to the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 that -- "the discretion conferred by the West Pakistan Urban Rent Restriction Ordinance upon the Rent Controller not an absolute or unbridled discretion. The Rent Controller cannot in all cases of default in the payment of rent declare 'that because he enjoys discretion whether to order or not to order the ejectment of the tenant and, therefore, he would exercise this discretion m favour of the tenant. This the Rent Controller cannot do. His is a judicial discretion in whose exercise all the relevant factors are to be carefully taken into consideration and good grounds should exist for its exercise. It has not to be arbitrary, capricious or based on personal likes or dislikes; it has to be fair and in accordance with the common sense, justice and equity." It may, however, be observed that the word `may' as used in the old Rent Restriction Ordinance has been substituted by the word "shall" in the Sindh Rented Premises Ordinance, 1979 which is presently in force in this part of the country, which to my mind, takes away the discretion of the learned Rent Controller, as provided in the earlier statute. In the existing law if the tenant has been proved to be a wilful defaulter, he must face the consequence, and an order of ejectment must follow against him. The learned Rent Controller shall order ejectment in accordance with the provisions of section 15 (2) of the Ordinance. I have therefore, no doubt in my mind that finding on the issue of default as given by the learned Rent Controller is illegal and is accordingly reversed. The respondent is held to be a wilful defaulter and liable to be ejected on that ground. Now dealing with the third and last issue relating to the bona fide requirement of the landlord, learned counsel for the respondent submitted that the ground of need, available to the owner, is distinct from landlord. In this connection, reference was made by the counsel to clause (g) of section 2 which reads as under: "(g)" personal use" means the use of the premises by the owner thereof or his wife (or husband), son or daughter." The submission, in principle, seems to be correct but the same is not available to the respondent in the facts and circumstances of the case. Admittedly, the landlord is the husband of one of the co-owners and also son of another co-owner and, therefore, there is no bar in claiming ejectment of the respondent for him, as the personal use means the use of the premises by the owner thereof or his wife (or husband), son or daughter. However, it is to be looked into if the said need has been proved in law. It has been shown by evidence that the premises in question is a godown and the appellant needs a godown for his personal use. In fact, he produced a number of receipts of godown taken on rent by him. It was submitted by the learned counsel for the respondent that this application for ejectment has been filed nearly after seven years of the purchase of the property. Had the property been purchased for the personal use, there should not have been such a delay in bringing action to the Court. The submission has no merits. The appellant has produced evidence that his business has expanded and he required more place for storing his merchandise in the godown. In fact, a legal notice under the provisions of the Sindh Rented Restriction Ordinance, 1979, was also given to the respondent in 1980 to that effect by the appellant requiring the premises on the ground of personal bona fide use. Reliance was placed by the learned counsel for the appellant on the case, namely, Abdul Rashid v. Mst. Adila Musarrat 1982 C L C 149 and Haji Muhammad Rafique v. Shahenshah Jehan Begum P L D 1976 Kar.

180. In the first case 1982 C L C 149, a learned Single Judge of the High Court of Lahore observed that in the dictionary the meaning assigned to the word `use' is "to employ to any purpose; act of using, the fact of serving a purpose". It is therefore, a word of wide signification.' It seems to me that the term `use' is intended to have a wider application than the word `occupation' used in case of residential building. Can it, therefore, be said that the use of the shop by the husband who is head of the family and is maintaining the family is not the own use of the wife who happens to be the landlady of the non-residential building. The employment of the shop for running business by the husband from which the benefit is to accrue to the landlady, would necessarily amount to putting the shop for the landlady's own benefit. Considering that in our society the family is the unit of our civilisation and the head of the family provides sustenance to the family and the wife, therefore, use of a shop belonging to wife squarely falls within the purview of words `own use' employed by the Legislature. 1n the precedent case of Muhammad Younas the learned Judge observed that `husband is not one of the categories for whose benefit a non-residential building could be got vacated. The learned Judge, however, observed that the position would have been different in case the respondent has required the premises for doing her own business through some agent or servant. According to this line of reasoning in a case where assertion is made that partnership with the purview of the words "own use", but where a straightforward and true assertion is made that the shop is to be used, by the husband for conducting the business by him personally, the same would be outside the purview of the aforesaid clause." It is, however, noticeable that the above case was decided under the West Pakistan Urban Rent Restriction Ordinance, 1959 which did not contain a provision for the husband's use, whereas the Sindh Rent Restriction Ordinance, 1979 specifically includes the husband's use as defined under clause (g) of section 2 in the personal use of the owner, already quoted above. In the other case P L D 1987 Kar. 180 which has already been quoted in another context, a learned Single Judge of this Court observed that --"the other objection of the learned counsel for the appellant is that the landlady was herself present in Karachi and she herself did not appear in witness-box. The eviction application was filed on the ground of personal requirement of her husband who wanted to start his independent work. The appellant examined her husband as to the bona fides of his need. In presence of his evidence it is hardly necessary to examine his wife. In the instant case the landlady required the disputed premises to be vacated for her husband and the husband for whom the premises in dispute was required, had appeared in the witness-box and he was cross-examined. The failure of the landlady to appear in the witness-box was not fatal to the case of the landlady, as no prejudice was caused to the tenant on account of the failure of the respondent to appear as a witness in the case. As such non-examination of the respondent would be of no consequence." The finding of the learned Controller on the issue of personal bona fide use is, therefore, held to be perverse and is also reversed. For the above reasons the impugned order is set aside and the appeal is allowed. I would, however, give four months' time to the respondent to vacate the premises and give its vacant and peaceful possession to the appellant as the premises in question is commercial, subject to his depositing monthly rent regularly in the Court. M.B.A./M-1057/K Appeal accepted.