' This second appeal has been filed against the judgment dated 10-4-1978 of the IInd Additional District Judge, Karachi, in 1st Rent Appeal No, 378/1974, whereby the order of the Xth Civil Judge and Controller, Karachi dated 31-7-1974, ejecting the respondent from the demised premises was set aside.
' The facts of the case are as under :-
1. Flat No, 3 in building No, 29/5, S. No, 407, J. M. 3, in Jamshed Quarters, Karachi was requisitioned by the Government of Sind and allotted to Mr. Abdul Rehman Arain, the then Vth Additional City Magistrate, Karachi (deceased husband of the respondent), on 26-8-1948 and the Rent Controller, Karachi determined the fair rent of the premises at Rs, 34 per month plus 10% of the Municipal Taxes. The monthly rent used to be collected by Mr. Abdul Kadir. Abdul Ghani, the attorney and rent collector of the then owner Mr. Muhammad Ismail Bawla. Mr. Abdul Rehman Arain died on 21st May, 1968 leaving behind three daughters and five sons besides the widow namely the respondent.
2. On 18.9-1969, the appellant purchased the property from the previous owner and w,e,f, 1-9-1969 he was the landlord of the demised premises.
3. The appellant filed two rent cases bearing Nos. 980 of 1970 and No, 1582 of 1970 the first one for fixing fair rent and the other for ejectment against the respondent in the Court of VIth Civil Judge 1st Class and Controller, Karachi but both the rent cases were disposed of in the terms of compromise between the parties on 9-9-1971 under which the respondent agreed to payment of Rs, 100 per month as rent exclusive of all taxes from 1-7-1970 to 31-12-1971 and Rs, 70 per month from 18-9-1969 to 30-6-1970. It was further agreed in the compromise that the arrears of rent already deposited by the respondent in the Court amounting to Rs, 820 upto 31-8-1971 may be withdrawn by the appellant and the balance as per agreement with regard to rent arrived at between the parties, had already been paid to the appellant in cash of which the appellant acknowledged receipt in the very compromise.
4. On 7-1-1972, the appellant filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the respondent stating that the respondent had agreed in the compromise of rent case No, 980 of 1970 to pay the rent at the. Rate of Rs, 100 per month from 1-9- 1971 but had failed to make payment of the same till the filing of the application and, therefore, she had committed default and was liable to be ejected from the demised premises. The appellant also raised further grounds, firstly that the respondent had damaged the property and had thereby decreased and imparied the value and utility of the same by raising unauthorised construction, and secondly that the appellant also requires the premises in good faith for his and his family's bona fide use.
5. The respondent in her written statement took the preliminary objections that the application was bad for misjoinder of the parties and was not maintainable as drafted. She also denied that the monthly rent of the demised premises was Rs, 100 exclusive of electric charges and stated that fair rent of the demised premises had been fixed on 19-7-1949 by the Rent Controller, Karachi at Rs, 35 per month plus 10% of the Municipal Taxes. She, therefore, took the stand that the compromise agreement dated 9-9-1971 being against the provisions of the rent laws was illegal. She contended that she had personally paid the rent of the demised premises to the appellant upto 31-12-1971 at the rate of Rs, 100 per month since 1-9-1971 but in spite of repeated requests the appellant had not issued receipts for the same.
6. The respondent denied having put any construction or to have damaged the property. She also totally denied the further ground raised by the appellant that he requires the premises in good faith for his and his family's personal use. It was her contention that in fact it was appellant's malicious design to harass the respondent on false pretexts and let out the demised premises on receipt of Pagri and enhanced rent to a third party.
7. In the rent account filed by the appellant with his application he had shown rent due from the respondent from 1-9-1971 at Rs, 100 per month exclusive of electric charges which was rent for the months of September, 1971 to March, 1972 totalling Rs, 700. The statement of account filed on behalf of the respondent showed that the rate of rent was Rs, 35 per month and she had paid the same upto December, 1971 and, therefore, rent due was only for months of January, 1971 to March, 1972 for three months which amounted to Rs, 105 only.
8. On the aforesaid pleadings of the parties the Rent Controller settled the following issues :-
(i) Whether the application is bad for misjoinder of the parties?
(ii) Whether the application is not maintainable in law as framed?
(iii) What was the practice since 1948 with regard to payment/tendering of the rent of the demised premises?
(iv) What is the rate of rent?
(v) Whether the Opponent/Appellant is a defaulter?
(vi) Whether the Opponent/Appellant has damaged the property?
(vii) Whether the Opponent/Appellant has raised unauthorised construction?
(viii) Whether the Applicant/Respondent requires the suit premises for his personal and bona fide use?
(ix) Relief, if any?
9. The Rent Controller gave his findings with regard to issues Nos. 1 and 2 in the negative. With regard to issue No, 3, he was of the opinion that no practice for payment/tendering of rent had been proved. With regard to issue No, 4, he held that Rs, 100 per month was the rent of the premises. Issues Nos. 5 and 8 were decided in the affirmative. Issues Nos. 6 and 7 in the negative.
10. In view of the findings as stated above, the Rent Controlley allowed the application directing the respondent to hard over vacant possession of the premises to the appellant within one month of the date of the order.
11. Against the aforesaid order, the respondent filed appeal before the District Judge, Karachi which was incidentally heard and decided by the IIInd Additional District Judge, Karachi, who allowed the appeal disagreeing with the findings of the learned Rent Controller with regard to findings on issues Nos. 5 and 8 and consequently he held that the appellant (herein) was not entitled to eject the respondent.
12. Against the aforesaid judgment of the Ist Appellate Court the instant IInd Appeal under section 15(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 has been filed.
13. In the instant appeal the legal point whether application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is competent against the respondent when originally the tenant was her deceased husband and left surviving him other legal heirs; has been reiterated. It is also obvious that on the grounds with regard to default in payment of rent and requirement for bona fide personal use the findings of the learned Rent Controller and the 1st Appellate Court differ.
The grounds incidentally could be considered as related to facts but since the Ist Appellate Court gave his findings at variance with that of the trial Court such findings can be interfered with in second appeal. On this point, there is the decision of the Supreme Court in Madan Gopal and 4 others v. Maran Bepari and 3 others. It was observed in that decision as under :- "The legal position does not admit of any doubt that concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent findings of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the 1st 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 the 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."
' He above-quoted authoritative decision was also referred to in Allah Din v. Abib son of Moosa (Civil Appeal No, K-125 of 1980) by the Supreme Court s laying down the law as to the jurisdiction of the Court of second appeal in case of conflicting findings reached by the trial Court and the first Appellate Court. In cases such as the present one, therefore, within the limits indicated the decision of the first Appellate Court can be interfered with.
14. With regard to ground of default in payment of rent, in the application for ejectment the appellant had made the statement in para 3 that the respondent had not paid rent w,e,f, 1-9-1971.
In reply the respondent denied the fact and had taken the stand that she had personally paid rent1 to the appellant upto 31-12-1971 at the rate of Rs, 100 per month since 1-9-1971, and she further stated that in spite of repeated requests the appellant did not issue receipts for the rent paid.
15. In the deposition before the Rent Controller the appellant supported his contention in the ejectment application that the respondent did not pay rent after the compromise in January, 1972.
In his cross-examination the appellant had stated that it w as not correct that for the last 24 years whenever the tenants used to pay the rent the receipt was not given to them. He had further asserted that he keeps the account and issues the receipts to tenants whenever payment is made.
On the other hand, Fazal Muhammad Afzal, attorney of the respondent who gave evidence on her behalf stated that the respondent-tenant had paid rent upto 31-12-1971 before the ejectment application was filed. The attorney further stated that the appellant never issued any receipt and further that due to old practice and mutual confidence the respondent did not demand receipt nor had the appellant given any such receipt. The learned Rent Controller on the aforesaid evidence while considering issue No, 5 observed that to prove the allegation of default the only word of the landlord was not sufficient specially as he had admitted in the cross-examination that he maintains receipt book and account etc. Which he had, therefore, to produce in support of his contention. He was, therefore, of the further opinion that under the circumstances, the confusion and doubt should always be resolved in favour of the tenant, specially as no receipts were issued for rent during the past 24 years. He relied on the decision of the Lahore High Court in Muhammad Shafi v. Iqbal Ahmed and another. The facts of the Lahore case were that the appellant has been respondent's tenant since 1947 without default except for the disputed three months of 1960. It was observed that non-production of receipts by the tenant had been given an exaggerated importance as it is not unusual for old tenants not to insist on execution of receipts, and under section 13(2) of the Ordinance the Controller had the discretion to order ejectment of the tenant or not. The learned Rent Controller however, considered the facts of the instant case to be different as under the circumstances stated there could be no question of confidence in the present landlord and it had been argued that the attitude of the previous landlord and any practice then obtaining was not binding on the present landlord. He, therefore, concluded that burden of proof was on the tenant to prove that she had paid rent.
16. The first Appellate Court dealing with the same issue, considered the admission of the appellant that he keeps account and issued receipts to the tenants whenever payment of rent is made as shifting the burden of proving default to him. In order to consider the different findings of the trial Court and the Ist Appellate Court with regard to the ground of default in payment of rent the correct legal position with regard to the burden of proof is to be considered. In the decision of the Supreme Court in Civil Appeal No, K-125 of 1980, already referred to above the question with regard to burden of proof in such cases was considered. It was observed as under :- "It is no doubt correct to say that the initial burden of proof was upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2) (0 of the Sind Urban Rent Restriction Ordinance, 1959 but it must be appreciated that nonpayment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 24(6) of Specific Relief Act, 1977, in the case of Khairun Nisa v.
Muhammad Ishaq PLD 1972 SC 25."
' Applying the principle to the facts of this case, it may be pointed out that the appellant landlord in his application for ejectment and also in his deposition had asserted that he had not received rent from the respondent with effect from 1-9-1971 and that rent was due for the months of September,2 1971 to March, 1972. The assertion was denied by the respondent in the written statement and by the attorney of the respondent in his deposition before the Rent Controller, and it was the case on behalf of the respondent that she had paid rent upto 31-12-1971 before the ejectment application was filed, however, it may be pointed out that whereas' in the written statement it was stated that the respondent had personally paid the rent at the rate of Rs, 100 per month since 1-9-1971 upto 31- 12-1971, in spite of repeated requests, the appellant did not issue receipts, her attorney Fazal Muhammad Afzal in his deposition had stated that although rent had been paid upto 31-12-1971 the appellant never issued any receipt, and further that neither the tenant demanded the receipt, nor the landlord gave it because of mutual confidence and old practice. It is, therefore, evidence of the parties consisting of oral assertions and the issue could only be decided, as observed in the decision of the Supreme Court in Civil Appeal No, K-125 of 1980, on the ground that the tenant had failed to discharge the onus to prove the fact of payment. It may further be observed that the approach of the learned Ist Appellate Court was erroneous that it was not proved that the tenant had committed default in the payment of rent. The fact that there were different versions of the respondent and her attorney with regard to the refusal of the appellant to issue receipts also does not support the reasoning of the learned Ist Appellate Court.
17. It may here be stated that the decision of the learned Is Appellate Court mainly based on the argument that the landlord, having admitted that he issues receipts for rent paid to him by the tenants was not supported by production of the receipts, is altogether erroneous in that, in the instant case the landlord has asserted that the respondent never made payment of rent to him. It is also significant to note that about payment of rent for earlier months since such payment was made at the time of compromise and there was mentioned in deed of compromise, about the same, there could have been no question of issue of further receipts.
18. The contradictory finding on the ground of bona fide personal requirement of the landlord in respect of the demised premises, by the learned Ist Appellate Court as is apparent from the judgment, was arrived at without discussing the evidence on record and without giving any reasons for discarding and setting aside the finding of the learned Rent Controller on the point. In the application for ejectment the appellant had mentioned that he required the premises for his bona fide personal use and the use of his family. The learned Rent Controller had discussed in detail the evidence on record of the appellant who had stated that he has a family of 7 members.
In his cross-examination, he has stated that he lives in his brother's house in P. E. C. H. S. He further stated that his brother had died, and, therefore, a joint family of 17 members lives in that house in which there are only 3 bedrooms. None of his assertions were successfully controverted in the cross-examination. Mr. Hafiz Abdul Baqi, the learned counsel for the appellant has argued that the view of the learned Rent Controller on the subject of personal need/requirement of the landlord was correct. I have heard the learned counsel of the parties at length and no omission or misreading of the evidence on the part of the Rent Controller, or any violation of principles of law applicable to cases of this type has been pointed out. On the other hand, the contrary finding of the learned Ist Appellate Court is without proper reasoning and without discussion of the evidence on record.
19. For the reasons given above, therefore, the findings of the learned Ist Appellate Court on issues Nos. 5 and 8 cannot be supported and on the evidence on record, the findings with regard to the same issues by the learned Rent Controller are appropriate and proper. In Messrs Eveready Pictures. Limited v. Chaman Begum, a recent decision of this Court, it was observed that in view of the safeguard contained in section 13(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959,' the assertion of claim on oath by landlord that he required the premises for his personal use shall be accepted by the Rent Controller as bona fide, if such claim or assertion is consistent with averments in the application and is not shaken in cross-examination or disproved in rebuttal.3
20. The only contention which remains to be discussed and decided is with regard to non- maintainability of the ejectment application on the ground that L. Rs, of the original tenant namely Abdul Rehman Arain were not made parties. Abdul Rahman Arain died in 1968 before the property was purchased by the appellant in 1969. When ejectment application was filed on 5th January, 1972 against the respondent, it is evident from the record that previously two rent cases had been filed by the appellant against the respondent which ended in compromise on 9-9-1971. Even in the earlier litigation the L. Rs, of deceased Abdul Rahman Arain had not been shown as parties. It is apparent that the ground that L. Rs, of the original tenant should have been joined as parties, was not taken by the respondent. The only tenant shown in the earlier proceedings as well as the ejectment application with which we are dealing in the instant appeal, was the respondent. It is also evident from the record of the proceedings before the Rent Controller that in the correspondence between the parties which was produced during the proceedings including the notices and replies there was no mention of the L. Rs, It is true that in the written statement filed by the respondent preliminary objection had been taken that there was misjoinder of parties.
However, misjoinder is different from non-joinder of necessary parties and there was no elaboration in the written statement indicating that the legal heirs of deceased Abdul Rahman Arain should have been made parties. Mr. Hafiz Abdul Baqi, the learned counsel for the appellant has raised the contention that a party cannot prove a case different from what has been pleaded.
He has relied upon the decision of this Court in Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi, on the point that totally inconsistent pleas cannot be allowed to be raised if not earlier raised in the pleadings. He has also referred to the decision Yusuf v. Hashimbhoy & Co. And others, wherein it was inter alia observed, that a party cannot prove a case different from what has been pleaded by it.
21. On the other hand, Mr. Gharib Nawaz Daccawala, the learned counsel for the respondent has contended that the right of lease is inheritable and, therefore, the L. Rs, of deceased Abdul Rahman Arain acquired such right on his death. He has referred to Muhammad Nawaz and 2 others v. Sh.
Abdul Latif and another, a decision of the Supreme Court on the point that a co-sharer in possession of joint property cannot be evicted without filing suit for partition. He has, therefore, argued that the other heirs of the original tenant cannot be evicted from the premises. Whatever the right of other persons who are not presently parties could be considered only when such contention is raised by them or on their behalf. At this stage, in view of the contention raised, it is only to be considered whether the respondent who is admittedly in possession of the premises as tenant could set up such a plea that the proceedings against her are incompetent.
22. The learned counsel for the respondent has also referred to the Lahore High Court decision in Khalid Saeed v. Allaudin Pehlwan and 3 others. In that case, it was inter alia held that ejectment order passed against the appellant cannot be executed against other legal heirs of deceased tenant. The facts of the case were that an order directing the appellant to vacate the shop owned by the respondent was called in question in second appeal. The appellant's ejectment was ordered by a Rent Controller by striking off his defence under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. His first appeal, to the District Judge also failed, and it was argued on behalf of the appellant that the application on which the impunged order was made was not competent and the order was. Not sustainable. The argument was based on the fact that the shop in dispute was originally occupied by one Attaullah who died leaving behind some legal heirs, including the appellant but as the other legal heirs of the deceased tenant were not impleaded as respondents in the ejectment application, therefore, it was argued that the application was not competent and the Rent Controller was not right in directing the deposit of rent by the appellant. It was further argued that as such the failure of the appellant to deposit the rent did not justify passing of the order of ejectment against him by striking off his defence. It was held4 5 6 7 that the order of ejectment against the appellant could not be executed against the other legal heirs of the original tenant; but if the shop in dispute was occupied by the appellant alone, the respondent, by executing the ejectment order against him could secure possession of the shop. It was further observed as under :- "In case the shop is occupied by the other legal heirs of the deceased tenant also, he might face some difficulty in getting possession of the shop but this consideration does not constitute a valid ground for taking exception to the order of the learned Rent Controller relating to the deposit of rent."
' It was, therefore, held that the order assailed did not suffer from any legal infirmity and, therefore, the appeal was dismissed in limine.
23. In Messrs Nawab Din and another v. Faiz-ur-Rehman, a recent decision of this Court in case of non-compliance with the order of deposit of rent, it was held that the Rent Controller had no option but to strike off defence of tenant. However, it was further held that no such order could be passed unless person defaulting was a party to the proceedings and further that persons not party to the proceedings when default was committed in deposit of rent were not to be penalised in respect of such default.
24. There is nothing on the record to show that the tenancy was shared by any other persons but even though there may be such co-sharers, the E proceedings against the respondent cannot be considered to be incompetent and it was for any such persons to put forward their case before the Rent Controller.
25. In view of the circumstances stated, I find that the order of the learned Ist Appellate Court was not soundly based on the evidence on record and, therefore, the appeal is allowed and the impugned order set aside with the effect that the order of the learned Rent Controller shall be considered to be legal and affective. The respondent is hereby directed to hand over vacant possession of the premises to the appellant within two months of the date of this order. PLD 1969 SC 617 PLD 1965 Lah. 23 PLD 1982 Kar. 770 PLD 1972 Kar. 505 PLD 1966 Kar. 456 1971 SC MR 198 1980 CLC 133 PLD 1982 Kar. 424