' ZAFAR AHMED RAJPUT, J.--- Impugned in this petition is the Judgment dated 07.02.2009. whereby the respondent No, l/learned IInd Additional District Judge, Karachi-South, while allowing Rent Appeal No,99 of 2008, set aside the order dated 30.04.2008 passed by the learned Vth Rent Controller Karachi-South and, thereby, allowed the ejectment application being Rent Case No,1514/2006, filed by the respondents/applicants Nos, 2 to 5 against the petitioner/opponent.
2.The facts giving rise to this petition are that the respondents Nos,2 to 5 herein filed aforementioned Rent Case, under Section 15 (2) (ii) (iv) of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") before the learned Vth Rent Controller Karachi-South averring therein that having purchased the building located on Plot No,RB-6/107, Arambagh Road, Saddar Town, Karachi from the previous owners, on 15.07.2006, they served a notice, under Section 18 of the Ordinance upon the petitioner, who was/ is tenant in premises (pump room), situated at the ground floor of the said building ("the Demised Premises"), requiring him to pay the agreed monthly rent at the rate of Rs,360/-and maintenance charges Rs,100/- per month w,e,f, July, 2006, onwards. It was further averred that the previous owners had also served a notice upon the petitioner intimating him about the selling of the said building to them. It was the case of the respondents that the petitioner neither responded their notice nor even tendered rent to them and in so doing he committed willful default in payment of monthly rent. It was further case of the respondents that the petitioner constructed "Do Chatti" by removing a pillar of the building and also fixed a shutter and iron "Chajja" in front of the demised premises by encroaching upon the footpath and thereby not only he caused damages to the building but also impaired the value and utility of the demised premises; hence, cause of action accrued to respondents for filing the ejectment application on the grounds of default in payment of monthly rent from July, 2006 and making addition and alteration in the demised premises without their consent and permission.
3.The petitioner contested the ejectment application by filing written statement, wherein he admitted the tenancy and receiving of intimation notices from the respondents and his previous landlord however, denied to have committed any default in payment of the monthly rent. He asserted that he was a tenant on goodwill basis and the rent collector of the previous landlord used to collect rent of six months in advance and last time he paid the rent on 14th January, 2006 for six months w,e,f, from January to June, 2006, and in July, 2006 he received a letter from the previous landlord informing him that he had sold out the building to respondents Nos,2 to 5. He further asserted that in the last week of July, 2006 he approached the respondents and offered rent for six months but they were not ready to issue rent receipt for the payment and then he again approached them in the month of August, 2006 but they refused to receive the rent therefore he tendered the rent to respondents through money order which too was refused by them and; thereafter, he deposited the rent in Court in MRC No,1315 of 2006. He also denied' to have made any unauthorized addition or alteration in the demised premises and pleaded that the same was made by the previous landlord and, thus, he did not violate the terms of tenancy.
4.To prove the pleadings, the respondent No,2/applicant No,1 filed his affidavit-in-evidence as Exh:A/1 and produced photocopies of power of attorney as Exh:A/2, sale deed as Exh:A/3, notice under section 18 of the Ordinance as Exh:A/4, postal receipt as Exh:A/5, A/D receipt as Exh:A/6, notice for change of ownership by previous landlord as Exh:A/7, postal receipt as Exh:A/8, counterfoil of rent receipt No, 1255 as Exh:A/9, and three photographs of the premises as Exhs:A/10 to 12. He was cross-examined by the counsel for the petitioner.
5.From the other side, the petitioner/opponent filed his affidavitin-evidence as Exh:0 and produced photocopy of rent receipt No,1233 as Exh:0/1, letter dated 01.07.2006 as Exh:O/2, money order coupon as Exh:O/3, receipt of refusal to receive the money order as Exh:O/4, electricity bill for the month of September, 2006 as Exh:0/5, telephone bill for the month of September, 2006 as Exh:0/6 and four MRC receipts as Exh:0/7 to Exh:0/10. He was also cross-examined by the counsel for the petitioners.
6.Out of the pleadings and evidence adduced by the parties, the learned Vth Rent Controller, Karachi South, while passing his order dated 30.04.2008 settled following points for determination in the case: (1)Whether the opponent defaulted in payment of rent?
(2)Whether the opponent has made addition and alteration in the demised premises?
(3)What should the order be?
7. The learned Rent Controller, while recording its findings on first two points dismissed the Rent Application of the respondents Nos,2 to 5. Being aggrieved, they preferred F.R.A. No,99/2008 which was heard by the learned IInd Additional District Judge, Karachi-South (respondent No,1), and by his impugned judgment reversed the findings of the Rent Controller on the point No,1 and directed the petitioner to vacate the demised premises and hand over its vacant and peaceful possession to the respondents within 90 days from the date of said order. It is the conflicting findings/Judgment of the appellate Court that has been impugned by the petitioner in this Constitutional petition.
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8. Mr. Naeem Sulleman, learned counsel for the petitioner, contended that the impugned judgment is based on non-reading, misreading and non-appraisal of the evidence on record, as the learned appellate Court even failed to take notice of the fact that the respondent refused to issue acknowledgement of rent offered by the petitioner and; thereafter, the rent was not accepted by the respondents sent to them through money order and, thus, wrongly held that the petitioner had not paid rent within 30 days. He further contended that the learned appellate Court wrongly noted Exh:0/5, as electric bill, which infact is the refusal of the money order sent to the respondents by the petitioner; hence, held erroneously that the petitioner had committed default in payment of rent. He further contended that the learned appellate Court has erred in holding that the petitioner deposited the rent in Court on 07,09.2006 in M.R.C., after expiry of 30 days of the receipt of respondents' notice. He added that the learned appellate Court ignored the money order receipt dated 25.08.2006 available on record as Exh:0/4 which ought to have been accepted as evidence that when the respondents refused to accept the rent, the petitioner tendered the same through money order. In support of his proposition, Mr. Naeem Sulleman cited the case of Hirjibhai Behrana Dar-e-Meher through Attorney v. Messers Bombay Steel Works, Partnership Firm, through partner (2001 SCMR 1888) and Messrs Wymco Traders & She Makers v. Hafeezuddin (1999 YLR 746).
9. It was the next contention of Mr. Naeem Sulleman that even otherwise the impugned judgment suffers from gross illegality, as in terms of Section 15(2)(ii) of the Ordinance read with Section 10 of the Ordinance, there being no written agreement. of tenancy between the parties and no time fixed for payment of monthly rent, the petitioner-tenant would be entitled to a grace period of (60+10)
70 days in the context of payability of monthly rent and since the petitioner has been depositing the monthly rent in M.R.C. from 07.09.2006, he has committed no default in payment of monthly rent; therefore, the impugned judgment is liable to be set aside. In support of his contentions, Mr. Naeem Sulleman has relied on the case of (i). Mst. Sadia Awan v. Daniyal Pervaiz and another (2007 SCMR 174) (ii). Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others (1995 SCMR 330) (iii).
Saleem Zafar v. Mst. Aleema Begum (1994 CLC 1139) (iv). State Life Insurance Corporation of Pakistan, Karachi v. M/s Siddique Tailors through its sole proprietor, Karachi (PLD 1993 Karachi 642).
10.Conversely, Mr. Irfan Ahmed Usmani, learned counsel for the respondents Nos,2 to 5, while supporting the impugned judgment maintained that after the service of the notice under Section 18 of the Ordinance, the petitioner was duty bound to pay the rent directly to the respondents within 30 days of the receipt of the notice but he failed to do so, hence he committed a willful default in payment of rent, which fact the learned trial Court did not ponder in the light of the evidence before it; however, the learned appellate Court considered the same and allowed the rent appeal holding the petitioner willful defaulter in payment of monthly rent from 01.07.2006, vide impugned Judgment, which requires no interference of this Court under its Constitutional jurisdiction. In support of his contentions, the learned counsel relied upon the case of (1).
Muhammad Essa Godil throe h L.Rs, v. Mst. Sitara Jamil and 2 others (2014 YLR 1901) (ii).V.
Manvadar Sadrah Memon jamat through president and 2 rs (2013 YLR 1405), (iii). Muhammad 1 bal v. Muhammad Zubair and 2 others (2012 YLR 2246) (iv). Hameed and 3 others v. litendra and 2 others (2010 CLC 561) (v). Shahid Ahmed alias Shahid Mukhtar and 9 others v Mst. Rasheeda Khatoon and 12 others (1997 CLC 1186) (vi). M/s Jodhpur asthan Cooerative Housing Allotted v.
Mst.Yasmeen A (1996 MLD 1141) (vii). Rameshial v, Munoharlal (1991 MLD 349) and (viii). Salamat Jan v. Chotey Khan (1987 MLD 2971).
11.Mr. Usmani further maintained that the petitioner neither tendered the rent to respondent nor even sent the same through money order and he directly deposited the same in Court. He added that the money order receipt produced by him as Ex:O/3 is a fake document, as it does not bear the stamp of post office. It was then maintained that the direct deposition of the rent in the court by the tenant without first tendering the same to landlord and then, on his refusal to accept same, through money order, has been held by the superior Courts as willful and deliberate default in payment of rent on the part of tenant, which cannot be termed as technical default. He placed his reliance, in this, regard, upon the case of Mst. Yasmeen Khan v. Abdul Qadir (2006 SCMR 1501).
12.Mr. Usmani lastly contended that the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked as substitute of another appeal against the order of the appellate Court; therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinances, 1979. In this regard, Mr. Usmani has relied on the decisions made in the case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925) and Hafiz Shafatullah v. Mst.
Shamim Jahan and another (PLD 2004 Karachi 502).
13.Heard the learned counsel for the parties and perused the material available on record.
14.For the sake of convenience and ready reference, the provisions of sections 10, 15(2) (ii) and 18 of the Ordinance may be reproduced, which read as under: "10. Paym ent of rent.-- (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2)The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3)Where the landlord has refused or avoided to accept the rent, it may be sent to him by, postal money order, be deposited with the Controller within whose jurisdiction the premises is situated.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance.
15. Application to Controller.-- (I) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put . the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by the mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment.
18. Change in ownership.-- -Where the ownership of premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant." (Underlining has been supplied for emphasis)
15.From the plain reading of the above, it appears that under section 18 of the Ordinance, a tenant not be deemed to have defaulted in payment of rent for the purpose of clause (ii) subsection (2) of section 15 if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant. Now clause (ii) of subsection (2) of section 15 of the Ordinance visualizes two situations namely: where the tenant has failed to pay rent in respect of the premises within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of rent or in the absence of such agreement within sixty days after the rent has become due for payment.
16. In the present case, the respondents have not pleaded if there was any mutual agreement reduced to writing between the parties for the payment of rent, while the petitioner has claimed, which has not been denied by the respondents specifically in evidence, that the rent collector of the landlord (previous) used to collect rent of six months in advance and in support whereof he has produced a receipt in evidence (Exh:0/1) which indicates the payment of rent from January, 2006 to June, 2006, which has not been denied by the respondents., hence, it fully' supports the stand of the petitioner.
17. The case of the respondents is that having purchased the building they served the notice on 1-5.07.2006 upon the petitioner for the change of ownership, as such, the period stipulated under section 18 of the Ordinance would expire on 14.08.2006, default within the purview of the meaning of section 15(2)(ii) of the Ordinance, 1979 would arise if, he fails to pay, in the absence of mutual agreement between the parties regulating the terms and condition for payment of rent, within sixty days after the rent has become, due for payment. It is the instance of the petitioner that he approached the respondents firstly in the last week of July, 2006 and then in the month of August, 2006 to pay the rent of six months as usual, but they were not ready to issue rent receipt; hence finding no other way he sent the rent through money, which was not received by the applicants.
The money Order dated 25.08.2006 (Exh:O/4) bears the endorsement dated 31.08.2006 as "refusal to accept". Hence, the petitioner tendered the rent to respondents within stipulated period when it was due and; thereafter, he deposited the rent in MRC No,1315/06 on 07.09.2006, which is again within stipulated period. Thus, the petitioner cannot be held defaulter in payment of monthly rent.
18.The trial Court dismissed the rent application while observing that the contention of the respondents regarding non-payment of rent within 30 days from the receipt of notice by the petitioner could not be accepted as the petitioner had tendered the rent in person which was not accepted by the respondents. The appellate Court, vide impugned judgment, reversed the findings of the Trial Court and allowed the rent application holding that the petitioner himself admitted that Exh:O/3 (money order coupon) does not bear the seal of postal authority; it does not show if it was sent to respondents and that it is also not mentioned if the money order was received or refused by the respondents, thus, it stands proved that the petitioner deposited the rent in Court on 07.09.2006 after 30 days of the notice served upon him under section 18 of the Ordinance, hence, he committed default in payment of monthly rent from 01.07.2006.
19.The view taken by the appellate Court is patently wrong, Exh:0/3 is a money order coupon and it is in fact Exh:0/4, the money order receipt that bears the seal of postal authority and shows that it was sent to the respondents on 25.08.2006 and it bears the endorsement of postman dated 31.08.2006 that its receiving was refused by the respondents. The impugned judgment is also contrary to the letter and spirit of law, as the question of default on the part of the petitioner was required to be determined by the appellate Court on the principles employed in sections 18 and 15(2)(ii) of the Ordinance.
20. So far the contentions of Mr. Usmani with regard to the jurisdiction of this Court under Article 199 of the Constitution is concerned, there can be no cavil to the proposition that this Court cannot invoke its Constitutional jurisdiction as substitute of another appeal against the order of the appellate Court which is final authority in the hierarchy of rent laws. But where the appellate Court takes absolutely incorrect view due to non-reading or misreading of the evidence on record or fails to determine the rights of the parties in lis under the governing laws and as per settled principles of administration of justice, this Court has jurisdiction under Article 199 of the Constitution to rectify the wrong and upset the erroneous view of the appellate Court by interfering in the order of the appellate Court. The case-law cited by the learned counsel for the respondents are; therefore, distinguishable so far the facts of this case are concerned. 21.The upshot of the above discussion is that this is a fit case for exercise of the Constitutional jurisdiction as the judgment passed by the appellate Court is not sustainable being oppose to law and settled principle of administration of justice.
22. This Constitutional petition is; therefore, allowed accordingly. The judgment dated 07.02.2009 passed by the learned Ind Additional District Judge, Karachi-South in Rent Appeal No, 99 of 2008 is set aside and the Order dated 30.04.2008 passed by the learned Vth Rent Controller Karachi-South in Rent Case No,1514/2006 dismissing the ejectment application of the respondents landlords is restored.
23.Above are the reasons of my short order dated 15-12.2015,1H whereby the instant Constitutional petition was allowed.