' SHAHNAWAZ TARIQ, J.--- Through the captioned Constitution petition, petitioner State Life Insurance Corporation of Pakistan has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan and agitated judgment dated 19.03.2012, passed by learned VI Additional District Judge, Karachi South, whereby FRA No.27 of 2011, filed by petitioner was dismissed and order dated 24.12.2010, passed by learned 1st Rent Controller, Karachi South, in Rent Case No.213 of 2010, was maintained.
2. The necessary facts spelt out from the instant petition are that petitioner is a corporate body established under Article 11 of the Life Insurance (Nationalization) Order No.X of 1972, and owner of the building situated on plot No.11-SB-6, Zaibunnisa Street, Saddar, known as State Life Building No.5-A. Respondent No.1 is tenant of petitioner in respect of flat No.6, admeasuring 2525 sq.Ft, situated at second floor of the said building (hereinafter referred as "the demised premises") and paying rent at the rate of Rs.907.50 per month, excluding electricity charges. It is further stated that on 06.01.1992, petitioner filed Rent Case No.12 of 1992, under section 8 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred as "SRPO, 1979"), for fixation of fair rent of the demised premises the rate of Rs.7,000/- per month in the Court of 1st Rent Controller, Karachi South, against respondent No.1, and as a counter blast, he filed Rent Case No.1767 of 1992, under section 12 of SRPO, 1979, for repairs in the demised premises, before the same Court. However, after service of notice of said Rent Case, petitioner carried out the necessary repairs in the demised premises, and respondent No.1 withdrew said rent case on 19.02.1995. It is further averred that after recording evidence of the parties, learned Rent Controller fixed fair rent of the demised premises at the rate of Rs.2,000/- per month from the date of institution of rent application vide order, dated 31.10.2000.
Petitioner challenged the said order by filing FRA No.25 of 2001 before the High Court, which was subsequently transferred to the Court of learned District Judge, Karachi South, and renumbered as FRA. No.1363 of 2001, and same was transferred to the Court of learned II Additional District Judge, Karachi South, who after hearing the parties, allowed the same vide Judgment dated 21.07.2009 and modified the quantum of fair rent from Rs.2,000/- to Rs.5,000/- per month from the date of institution of rent application. Respondent No.1 challenged the judgment dated 21.07.2009 vide C.P No.S-825 of 2009, before High Court, but during the pendency of said petition, in order to pressurize the petitioner, he again filed another rent application No.213 of 2010, under section 12 of SRPO, 1979, for repairs in the demised premises before the Court of 1st Rent Controller, Karachi South. Petitioner filed written statement in said rent case and raised preliminary objections that after institution of the case for fair rent, respondent No.1 had already filed rent case No.1767 of 1992 to carry the necessary repairs of the premises which was withdrawn on 19.02.1995, as such second rent case with similar prayer is barred under the principle of resjudicata. It is further stated that respondent No.1 filed application under section 20 of SRPO, 1979, and the demised premises was inspected and commissioner submitted the inspection report. It is further averred that respondent No.1 also filed application under Order XII, Rule 6, C.P.C. Read with section 151, C.P.C. Alleging that in para. No.11 of the written statement, petitioner had admitted its liability to carryout the repairs in the demised premises, therefore, rent case No.213 of 2010 may be allowed. Notice of said application was served upon petitioner and on 12.10.2010, when counsel for petitioner was busy before the High Court of Sindh, learned Rent Controller debarred the petitioner from filing objections against said application and subsequently, said application was allowed in view of para 11 of written statement and inspection report submitted by commissioner vide order dated 24.12.2010. Petitioner challenged said order through FRA No.27 of 2011, which was also dismissed by appellate Court vide the impugned Judgment, hence the instant petition.
3. It is, inter alia, contended by learned counsel for petitioner that both the Courts below have not properly appreciated para. No.11 of written statement filed by petitioner and ignored the remaining averments of the same and on the mere bases of conditional consent of petitioner, said rent case was allowed without recording the evidence of the parties to decide the controversy on merits. He further contended that both the Courts below have also ignored the important fact that after fixation of fair rent, respondent No.1 has not paid the said amount and committed willful default. He further contended that both the Courts below have also failed to appreciate that respondent No.1 has claimed for repairs to the tune of Rs.12,16,124/-, which are more than the monthly rent for the period of 20 years and three months of the demised premises, which is based on his malafide intention.
4. While controverting the arguments advanced by learned counsel for petitioner, learned counsel for respondent No.1 contended that petition against the concurrent findings is not maintainable. He further contended that petitioner has wrongly referred order dated 19.02.1995, which was passed on the statement of his counsel, but evidence of the parties was not recorded in earlier said case. He further contended that petitioner being landlord is bound to carry out repairs of the demised premises and he is ready to pay the entire outstanding fair rent if petitioner undertakes to carry out the repair works as required by respondent No.1. He also submitted that the concurrent findings have been passed on the admission made by petitioner in para No.11 of written statement, therefore, the plea of lack of fair opportunity is not maintainable.
5. Perusal of the material available on record and consideration of the arguments emanate that petitioner had let out the demised premises to respondent No.1 against the monthly rent of Rs.907.50. Subsequently, petitioner filed rent application for fixation of fair rent which was allowed and rent was enhanced to Rs.2,000/- per month. Petitioner then challenged said order through FRA and appellate Court further enhanced the rent to Rs.5,000/- per month from the date of institution of rent application. It is worthwhile to mention that respondent No.1 after institution of case for fixation of fair rent by petitioner, instantly, filed rent application No.1767 of 1992, under section 12 of SRPO, 1979, against the petitioner to carry out repairs in the demised premises, which was dismissed by the 1st Rent Controller, Karachi South, vide order 19.02.1995, on the statement of learned counsel for respondent No.l. Subsequently, during the pendency of C.P. No.825 of 2009, before the High Court of Sindh, respondent No.1 again filed rent application No.312 of 2010, under section 12 of SRPO, 1979, with almost similar prayers of repairs which were sought in earlier rent case No.1767 of 1992. Petitioner filed written statement and denied the contents of rent application.
Respondent No.1 filed application under section 20 of SRPO, 1979, and the demised premises was inspected and commissioner submitted inspection report. Simultaneously, respondent No.1 also filed application under Order XII Rule 6, CPC read with section 151, C.P.C. Alleging to allow the rent case as in para No.11 of the written statement, petitioner had admitted its liability to carryout the repairs in the demised premises, and learned Rent Controller all9wed said rent application.
Petitioner agitated said order but appellate Court maintained the same.
7.(sic) In the peculiar circumstances referred supra, it was incumbent upon both the Courts below to judiciously consider the entire material available on record, including the previous litigation, demeanor of the parties and stances taken by them, by focusing on the very aspect that whether respondent No.1 has filed application with bad intention to deprive the petitioner from payment of the fair rent already fixed by the Court or otherwise. Apparently, respondent No.1 has proposed the repairs of the demised premises for Rs.12,16,124/- which are almost equivalent to the outstanding fair rent against respondent No.1 which is still unpaid. This shows the malafide of the tenant as the said amount is equivalent to the monthly rent of the demised premises for the period of 20 years and three months and this aspect should have been considered properly by both the Courts below. Similarly, the stance taken by learned counsel for respondent No.1 that he is ready to pay the entire outstanding fair rent on the condition that petitioner undertakes to carry out the proposed repairs, clearly indicates the ulterior motives and malafide intention on the part of respondent No.l.
Undeniably, under section 12 of the SRPO, 1979, landlord is bound to carry out the necessary repairs of the demised promises but the tenant cannot compel or pressurize the landlord for excessive work, addition or alteration of the demised premises under the garb of repair works which is contrary to the provisions of section 12.
8. It was incumbent upon the Rent Controller to adjudicate the case strictly by following the procedure envisaged in section 19 of SRPO, 1979, and the proceedings in deviation of prescribed procedure are utter violation of the said section. For the appropriate conclusion, section 19(3) of the Ordinance is reproduced as under:- " (3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence, first of the applicant and his witnesses and then of the respondent and his witnesses."
9. Admittedly, petitioner had filed written statement and denied the averments of rent application, therefore, Rent Controller was bound to proceed the case further according to section 19 of SRPO, 1979, and B direct respondent No.1 to file his affidavit in evidence to establish his claim, by affording opportunity to petitioner to conduct his cross examination, but it was not done by the Rent Controller.
10. It would be advantageous to have a glance over the relevant paras of written statement filed by petitioner to examine the prime controversy regarding the alleged admission or otherwise made by petitioner which provided the foundation to both the courts below to pass the concurrent findings. At the first instance, it would be appropriate to examine the averments of para No.11 of the written statement which is reproduced as under:- "11. That no cause of action has been accrued to the applicant for filing this case against the opponent. The contents of prayer clauses are denied. The applicant is not entitled to any relief as alleged. However, it is submitted 'that being the landlord of the case premises building, the opponent are making arrangement for carrying out the necessary repairs in the building as well as in the case premises, provided the applicant pays them the fair rent as fixed by the appellate Court."
11. Similarly, it would also be appropriate to analyze the preliminary legal objections raised by the petitioner in written statement, which are reproduced as under:-
(i) That in September, 1992, the applicant had also filed in this Honsble Court Rent Case No.1767/1992 under Section 12 of the Sindh Rented Premises Ord. 1979 against the opponent on the similar grounds praying that the applicant may be allowed to carry out the necessary repairs in the case premises according to the spirit 'of subsection (3) of section 12 of the Ord. 1979 the adjustment of the cost thereof be allowed to me made from the rent of the case premises.
(ii) That on 19.02.1995 the applicant filed a statement in Rent Case No.1767/1992 stating that the opponent has carried out the necessary in the case premises, hence he does not want to proceed the matter any further and sought permission for disposal of the case. Consequently, this Hon'ble Court dismissed the said rent case, as having become infructuous- vide order dated 19.02.1995.
12. From the bare perusal of the relevant paras of written statement referred supra, the factum of admission by petitioner is clearly missing but on the contrary, the bonafide intention of petitioner to carry the repairs in the tenement in the purview of section 12 of SRPO, 1979, is visible which has been demonstrated in lieu of payment of the fair rent which was already fixed by the Court of law, but is still unpaid.
13. It is well settled that while deciding the lis under Order XII, Rule 6, C.P.C. On the basis of admission of defendant or respondent, the Court should examine the averments of the plaint and written statement minutely and such admission must be specific, unambiguous, categorical and definite.
If the admission is not certain, explicit and unequivocal, the Court could not pass decree or final order. Even the conditional admission, if any, is not covered within the scheme of Order XII, Rule 6, C.P.C., it does not provide the base to deviate from the settled norms of justice. While dealing with the plea raised under Order XII, Rule 6, C.P.C., the Court is duty bound to examine the averments of plaint and written statement thoroughly and carefully and decide the factual controversy after framing proper issues and recording the evidence of parties by evaluating their respective claims and counter claims judiciously in view of Article 31 of Qanun-e-Shahadat, 1984.An admission should not be based on surmises and conjectures. In the present case, admission attributed to petitioner in the written statement was not of the nature as to show that he has confessed the claim of respondent No.1. While determining the question of admission as provided in Order XII, Rule 6, C.P.C., in the case of Amir Bibi through legal heirs v. Muhammad Khurshid and others (2003 SCM R 1261), the honourable Supreme Court has observed as follows:- "Decreeing the suit by the Court on the basis of admission irrespective of the fact whether such admission was categoric, specific or otherwise. Court in view of, R.6, C.P.C. Was competent to dilate upon. And decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power was not unfettered and the admission on the basis whereof a decree was sought must be specific, clear, unambiguous, categoric and definite. Court was bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the Court to accept or reject such application. Entire suit, in the present case, could not have been decreed as the claim of plaintiffs had been controverted on various legal and factual grounds which could only be decided on the basis of evidence and not on mere admission."
' Likewise, in the case of Macdonald Layton and Company Pakistan Ltd v. Uzin Export-Import Foreign Trade Co. (1996 SCMR 696), the honourable Supreme Court has observed as follows:- "Letters exchanged between parties forming basis. Of decree in terms of 0.X11, R. 6, C.P.C. Granted by High Court. Division Bench of High Court setting aside such decree in appeal. Provision of 0.X11, R.6, C.P.C., provides summary and speedy remedy in cases where admission was made by defendant in pleading or outside the same. In order to u,tract provision of 0.XII, R.6, C.P.C.
Admission should necessarily by unequivocal, clear unconditional and unambiguous. Court while deciding such application for grant of decree must exercise its discretion in judicial manner and subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Court should not grant decree on admission without resorting to objections raised. Objections of grant of such decree having been raised by defendants to maintainability of suit, discretion for grant of application in terms of 0.XII, R.6, C.P.C. Should not have been exercised by High Court. Finding rendered by Division Bench setting aside decree of Single Bench being unexceptionable, were maintained in circumstances."
14. It is significant to mention that in present case a mere condition to carry out the repair works, if the outstanding fair rent is duly paid was taken out of context and treated as an admission which is unjust and unjustified, as an admission should exclusively pertain to the claims and averments raised by one party and its acknowledgement and acceptance by the other party. The term admission is defined in Black's Law Dictionary, Eighth Edition, at page No.50 as follows:- Any statement or assertion made by a party to a case and offered against that party; an acknowledgement that facts are "Any statement or assertion made by a party to a case and true."
15. Considering the peculiar facts, circumstances and identical case law referred supra, I have no hesitation to conclude that the concurrent findings passed by both the Courts below are suffering from material illegalities and fatal irregularities, and the material placed on the record was not considered judiciously while passing the concurrent findings. It is well settled that ordinarily the High Court in its Constitutional jurisdiction would not reappraise the evidence in rent matters to disturb the finding of facts but if such findings are 'found to be based on erroneous assumptions of facts and misapplication of law, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Courts below.
16. As the sequel of the above discussion, I am clear in my mind that respondent No.1 has misquoted the averments of para 11 of written statement as neither petitioner has admitted the claim of respondent No.1 specifically and categorically nor on the strength of said averments final order can be passed without recording the evidence of the parties to evaluate the nature and details of required necessary repairs. Consequently, the impugned concurrent findings passed by both the Courts below having no legal substance are set aside and case is remanded to learned Rent Controller to decide the controversy strictly on merits after affording full opportunity to the parties to adduce their evidence, preferably within two months as matter pertains to the year 2010.