1. ANWAR ZAHEER JAMALI, J.--- By this Constitutional Petition, order dated 24.1.2003, passed by respondent No. 1 in F.R.A. No. 151 of 2001 (old F.R.A. No. 490 of 1993), maintaining the order dated 28.9.1993 passed by respondent No. 2 in Rent Case No. 1157 of 1986, has been assailed by the petitioner/tenant.
2. Briefly stated, the relevant facts forming background of this litigation are that the petitioner had acquired tenancy rights in respect of commercial premises being Shop No. 76, Islam Manzil over Plot No. NP. 11/4, Muhammad Shah Street, Jodia Bazar, Karachi, from Shaikh Muhammad Ilyas, the predecessor-in-interest of respondents Nos. 3(a) to 3(g), on monthly rent of Rs. 325.00 per month plus Rs. 10.00 as additional taxes. The petitioner committed default in payment of rent since April, 1986 till filing of Rent Application on 27th August, 1986, therefore, Shaikh Muhammad Ilyas, the owner and, landlord of the building, filed ejectment application against him on the sole ground of default in payment of rent.
3. The petitioner in his written objections did not deny the relationship of landlord and tenant or the rate of rent, but he disputed the claim or landlord as regards the payment of Rs. 10.00 per month as additional taxes. The petitioner also did not deny non-payment of rent to the landlord from the month of April, 1986 but pleaded practice of lump sum payment of rent at the convenience of the landlord. He also pleaded ma/a fide on the part of landlord in trapping him defaulter in the payment of rent on the pretext of execution of separate lease agreement with him. Maintainability of the Rent Application was also challenged on the ground that at the time of filing of Rent Application the petitioner was minor, aged about three years.
4. On such plea of maintainability raised by the petitioner, initially the Rent Controller dismissed the Rent Application vide its order dated 8.3.1987, which was successfully challenged by the predecessor-ininterest of respondents Nos. 3(a) to 3(g), vide FRA No. 410 of 1987. In the result this Court set aside orders dated 8.3.1987 and 22.2.1987 passed by the Rent Controller, allowed application for appointment of guardian ad-/item of the petitioner and remanded the rent case for disposal in accordance with law.
5. During the post remand proceedings, from the side of Shaikh Muhammad Ilyas, the owner and landlord of the rented premises, his son and attorney Muhammad Mohsin filed his affidavit in evidence on 20.2.1991, whereafter he was cross-examined by the counsel of the petitioner on 19.9.1991. From the petitioner's side his father and guardian ad-/item Muhammad lqbal filed his affidavit in evidence on 5.3.1992, whereafter he was cross-examined by the counsel for landlord on 14.11.1992. The Court of Rent Controller, while passing order dated 28.9.1993, framed two points for determination and in view of its findings on the point of default in the affirmative, it ordered eviction of the petitioner from the rented premises.
6. Against such order of Rent Controller, the petitioner preferred FRA No. 490 of 1993 before this Court, which was later on transferred to the District Court due to amendment in the relevant provisions of Sindh Rented Premises Ordinance, 1979, regarding the forum of appeal, and assigned new number as FRA No. 151 of 2001. The learned 1st Additional District Judge, Karachi (South), dealing with this Rent Appeal, after hearing the arguments of learned counsel for the parties maintained the order of Rent Controller and consequently dismissed the Rent Appeal preferred by the petitioner.
7. Mr. Lftikhar Javaid Qazi, learned counsel for the petitioner, vehemently contended that the petitioner has obtained possession of rented shop on payment of huge sum as pagri; there was only two months' default in payment of rent for which too the petitioner had given satisfactory explanation of practice of lump sum payment of rent, therefore, in such circumstances the learned Rent Controller and the Appellate Court were not justified in ordering eviction of the petitioner. He further contended that both the Courts below committed illegality in ignoring the fact that filing of ejectment application against a minor was an incurable illegality, as by virtue of Section 11 of the Contract Act, no contract can be enforced against a minor. Learned counsel could not show from the record that the findings of Rent Controller on the point of default were either based on non- reading/misreading of evidence or perverse and that the Appellate Court committed any illegality in maintaining such findings of the Rent Controller. He, however, urged that in the order of Appellate Court aspect of default was not examined in detail as required by law.
8. Conversely, Mr. H.A. Rahmani, learned counsel for the respondents Nos. 3(a) to 3(g), firstly referred to the facts stated by the petitioner in the memo. Of this petition and written objections filed in rent proceedings to show that how the petitioner's father by concealment of material facts managed tenancy of rented Shop No. 76 in the name of his minor son, the petitioner. He contended that attempt of the petitioner to take benefit of such situation by taking shelter of Section 11 of the Contract Act is ill-founded as according to his own case the petitioner is statutory tenant of the predecessor-in-interest of respondents Nos. 3(a) to 3(g) from whom he got chance of rent receipt in his name after obtaining possession of rent shop from previous tenant. He further contended that regular payment of rent was statutory obligation upon the petitioner, therefore, on commission of default, petitioner/tenant is bound to face its consequences as provided by law.
9. Further arguing the point of default Mr. H.A. Rahmani contended that as a matter of fact before the Appellate Court the petitioner has conceded to the position that he had committed default in the payment of rent, therefore, an attempt was made by him for resolution of dispute in terms of Section 21(d) of the Sindh Rented Premises Ordinance, 1979, by moving an application for this purpose. It was under these circumstances that in the impugned order dated 24.1.2003 mainly the scope of compromise in terms of Section 21(d) of the Sindh Rented Premises Ordinance, 1979, was examined by the Appellate Court. Nevertheless, the other pleas raised by the petitioner were also taken into account and answered by the Appellate Court. To fortify his submissions learned counsel placed reliance upon Ghulam Muhammad v. Khan Muhammad Sabir Lal (PLD 1969 S.C. 71).
10. In this case the Hon'ble Supreme Court while considering the question of obligation of a minor under the law of Contracts observed as under:-- "These decisions would appear to indicate very clearly that the Courts in England have only extended this protection to an infant where the liability arose purely ex-contractu and even then they have, by invoking equitable principles, held that if a minor had not repudiated the contract on attaining majority or soon thereafter, he must be deemed to have ratified the contract and to have accepted the liability thereunder, for, as observed by coleridge, C.J. In the passage quoted above, the Legislature cannot be imputed any intention of perpetrating a manifest injustice.
11. These appear to me to be not only sound but also just principles and I see no reason for departing from them unless the Legislature has itself manifested a clear intention of doing so. In the present case the Act has not done so. Applying these principles, therefore, I have no hesitation in coming to the conclusion that in the present case since the relationship was created not by any contract but by operation of a special law which applied, notwithstanding the provisions of the other laws, the protection given to a minor by Section 11 of the Contract Act is not available to the appellant."
12. I have carefully considered the arguments advanced by the learned counsel and perused the case record.
13. The facts that the petitioner was minor at the time of inception of tenancy of rented shop in his favour; no written tenancy agreement was executed between the parties; the petitioner is statutory tenant as tenancy was created in his favour on change of rent receipt in his name, and commission of default in payment of rent from the month of April, 1986 till filing of rent case are not disputed. The fact that before the Appellate Court petitioner made an attempt to get his dispute settled with the private respondents in terms of newly-added Section 21(d) of the Sindh Rented Premises Ordinance, 1979 is also not disputed. In such circumstances the points which need deliberation are that whether by virtue of being minor at the time of commission of default in payment of rent the petitioner can take. Benefit of Section 11 of the Contract Act, or being statutory tenant, on commission of default in payment of rent, penal consequences as provided under the Sindh Rented Premises Ordinance, 1979 will follow. The other question which needs deliberation is that whether there was any practice of lump sum payment of rent between the parties, if so, whether it will absolve and dilute the effect of default in payment of rent. As to the first point, I find force in the submission of Mr. H.A. Rehmani that the question of applicability of Section 11 of the Contract Act could only arise if there was any contractual tenancy between the parties. In the instant case admittedly the existing tenancy between private parties is not contractual but statutory one, therefore, the plea that the petitioner being minor at the time of commission of default is not liable to face its consequences, has no force. The case of Ghulam Muhammad (supra) also adds force to this view. As to the other point regarding the alleged practice of lump sum payment of rent between the parties, it is pertinent to mention that in the written objections petitioner had not taken this plea in so many words, however, in the affidavit in evidence filed on behalf of the petitioner before the Rent Controller this plea was specifically taken and to prove such practice reliance was placed on four rent receipts, whereby, on three occasions payment of rent for two months each was accepted under single receipt and on one occasion rent for four months was accepted under one receipt. In this regard, presumption would be that the petitioner had produced all best possible evidence available with him to give support to his plea of practice of lump sum payment of, rent. In other words it can be reasonably concluded that for the remaining period of tenancy the rent was being paid on monthly basis and not in lump sum. In this regard , landlord's son and attorney also categorically denied the suggestion that he used to recover accumulated rent from the petitioner/tenant or that somebody else was receiving rent on behalf of the landlord. To view the bona fide of the petitioner. It will not be out of place to mention here that on 3.8.1986, Le, three weeks before filing of ejectment application landlord had served registered post A/D notice on petitioner, complaining about non-payment of rent from April, 1986 but despite that petitioner did not bother to tender rent before 10.9.1986, when for the first time rent was sent through money order, two weeks after filing of ejectment application. In my view if on some occasions in the past, rent for more than one month was accepted by the landlord under one receipt, it can only be considered as an act of indulgence on his part and not as proof of practice of lump sum payment of rent. The plea of the petitioner regarding practice of lump sum payment of rent is also belied from his own assertions in the written objections that he had offered rent to the landlord in the months of June, 1986 and July, 1986, reason being that in case there was any practice of accumulated payment of rent between the parties than there was no occasion for the petitioner to offer rent each month. Moreover, even if, for argument sake, such plea is entertained then too in view of the dicta laid down in the cases (i) Abdul Rashid v. Sa/eh Muhammad (1980 SCM R 506), (ii) Dr. Syed Waris A.I Tirmizi v. Mst. Liaqat Begum (1980 SCM R 601), (iii) Messrs Tar Muhammad Janoo & Co. Taherali and others (1981 SCM R 93) and (iv) Mrs. Alima Ahmad v. Amir All (PLD 1984 SC 32) the petitioner will not be absolved from the consequences of commission of default in payment of rent on this ground. The other half hearted plea taken by the learned counsel for petitioner regarding payment of huge sum as Pugree to the previous occupant/tenant of the rented shop, also cannot be accepted as valid ground for setting aside the ejectment order passed by the two Courts below against the petitioner. It may be added that invoking of jurisdiction of this Court under Article 199 of the Constitution is not substitute of another appeal. Unless the order impugned is found to be wholly perverse, arbitrary, based on misreading of evidence and has resulted in absolute miscarriage of justice, it cannot be interfered with by this Court merely on the ground that on the basis of evidence adduced before the Rent Controller another view of the matter, contrary to the one taken by the Courts below, was also possible.
14. Foregoing are the reasons for the short order dated 19.1.2004 whereby this petition was dismissed in limine. .