1. ' This second appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) is directed against the order dated 21st May, 1976, of the II Additional District Judge, Larkana in Civil Miscellaneous Appeal No, 16 of 1972, upholding the order of the Civil Judge and Rent Controller, Shandadkot dated 25th January, 1972, passed on Rent Application No, 9 of 1969, filed by Late Haji Qamaruddin against the appellants, following the same and ordering them to hand over vacant possession within 2 months of the order.
2. ' The facts leading to the filing of the appeal are as under:- ' Haji Qamaruddin filed application under section 13 of the Ordinance on 14-7-1969 in the Court of the Civil Judge and Rent Controller Shandadkot stating that he was the owner and landlord of the shop in question, bearing City Survey No, 861 in Ward 'A' Shandadkot and Gurmukhdas was his tenant at Rs, 40 per month as per agreement executed on 30-9-1968 under which the tenancy was to start on 1-IC 1968 for one year. The said Gurmukhdas died in the month of December, 1968, leaving his widow Menghi Bai and his minor son Ashok Kumar and they sublet the shop to Arjandas who was in unauthorised and illegal possession. They had also failed to pay the arrears of rent since the death of Gurmukhdas till the filing of the application He had further raised the plea that he required the shop bona fide to do business. It was further contended that the widow and son of Gurmukhdas were served with such notice dated 7th March, 1969, on 8th March, 1969. Alongwith the application was filed extract from property Register Card showing property on Survey No, 861 as acquired by purchase on 5-3-1963 by Haji Qamaruddin son of Moula Bukhsh holding P. T. O. No, 1482 dated 15-5-1963. Objections were filed by the Advocate for Opponents (appellants herein) on 24-9-1969. The preliminary legal objection was that applicant has not given valid notice under section 30 of the Displaced Persons (Compensation and Rehabilitation Act, 1958, and, therefore, the suit was premature.
3. ' On the facts nothing was said regarding the claim of Haji Qamaruddin of being owner and landlord of the shop bearing City Survey No, 861, Ward `A' Shandadkot. It was, however, pleaded that Gurmukhdas was tenant of the shop before 1947 and therefore he became the statutory tenant of the applicant and that in the year 1963 a rent agreement was executed between him and Gurmukhdas but since the rent fixed by Custodian was less than Rs, 40 any agreement entered in contravention of mandatory provisions of law was null and void. It was admitted that Gurmukhdas died in December, 1968, but it was alleged that he left also four daughters beside his widow and son who were necessary parties. Subletting to Arjandas was denied and it was the case of appellants 1 and 2 that Arjandas was brother of Menghi Bai and used to look after the business of Late Gurmukhdas. Regarding allegation of default it was their case that Haji Qamaruddin had refused to accept rent and had demanded Rs, 100 p. m , and therefore they started sending him rent by money order which also he refused to accept. With regard to need for personal use receipt of notice was admitted and it was further stated that reply had been sent on 11-3-1969.
4. The learned Rent Controller settled the following issues:-
(1) Whether Opponent Nos. 1 and 2 were statutory or contractual tenants of the applicant?
(2) If Opponents Nos. 1 and 2 are statutory tenants, valid legal notice had been served on them or not?
(3) Whether there is non-joinder of necessary parties in the application, if so what is the effect?
(4) Whether Opponents Nos. 1 and 2 are defaulters in payment of rent?
(5) Whether Opponents Nos. 1 and 2 have sublet the property in dispute to Opponent No, 3?
(6) Whether the applicant requires the shop, in good faith for personal use?
(7) What is the nature and effect of documents executed between the parties.
5. ' The findings were that the tenancy was contractual and not statutory; the burden of proving that Gurmukhdas had left four daughters rested on Opponents Nos. 1 and 2 and they had failed to discharge it; that opponents were defaulters; that it had not been proved that they had sublet the shop or that the applicant required it for personal use and finally that the documents produced revealed contractual tenancy.
6. ' The findings were based on appreciation of oral and documentary evidence on record. The learned Rent Controller believed the statement of Haji Qamaruddin that at the time of purchase of the property from Settlement Authorities he was delivered possession by one Kishnomal in March, 1963, and he let out the shop to Gurmukhdas at monthly rent of Rs, 40 under oral agreement and that after about 3 months Gurmukhdas executed rent deed on 9-6-1963. His evidence was supported by witness Rahmatullah. With regard to the assertion about possession being given by Kishnomal the applicant produced inquiry Card showing that at the time of Survey in 1952 Kishnomal was in possession. Besides there were the rent agreements dated 9th June, 1963, 24th October, 1965, 20th April, 1967, and 1st October, 1978, executed by Gurmukhdas showing that lease had been taken by him for Shop No, 861 Ward 'A' from owner Haji Qamaruddin. The learned Rent Controller considered the documentary evidence as more reliable than the oral testimony of witnesses Begomal, Hussain Bux Gurdit and Arjandas whose evidence was considered by him as interested and unconvincing.
7. ' With regard to the allegation of default the learned Rent. Controller observed that though the opponents could show that thay had tendered rent from February, 1969, to September, 1969, they had failed to show any documentary evidence to prove that they had tendered or paid rent for December, 1968 and January, 1969.
8. ' In the impugned decision of the First Appeal the learned IInd Additional District Judge, Larkana accepted the findings of fact regarding the contractual tenancy and default in payment of rent after discussing the evidence on record in detail. On behalf of the appellants the following contentions have been raised
(1) That Gurmukhdas predecessor in interest of the appellants was a - statutory tenant having been in possession since 1947 paying rent at Rs, 12 p. m.
(2) That the entire case had been misjudged due to consideration of Enquiry Card (Exh. 15) in the record of proceedings before the Rent Controller as the same related to Shop No, 194 and not to 861 Ward 'A'. In the Card Kishnomal was shown as person in possession.
(3) That in any case there was no default in payment of rent in view of the provisions of section 13(2)(1) of the Rent Restriction Ordinance, 1959.
9. ' With regard to the identity of the shop, in the application under section 13 of the Urban Rent Restriction Ordinance, 1959, in the very first paragraph it was stated that the applicant was the owner and landlord of shop bearing City Survey No, 861, Ward 'A' Shandadkot. In the extract from the property Register Card 'A' filed with the application Shop No, 861 was mentioned. In the preliminary objections filed by the appellants it was stated that nothing is to be said regarding contents of Para. No,
1. In the original notice issued by Advocate for Haji Qamaruddin produced by the appellant and attached to the objections it is stated that his client is landlord and owner of the shop bearing City Survey No, 861 Ward 'A' Shandadkot. In the reply no dispute about the identity of the shop is raised and it is obvious that the same shop was being referred to by the parties. Again in lease agreement admittedly executed by deceased Gurmukhdas Shop No, 861 Ward 'A' is mentioned. The enquiry from office of the Custodian no doubt mentions D. S. No, 194 being in occupation of Kishnomal but Ward No, A is also mentioned and building No,, is left blank. However, the Provisional Transfer Order produced by Haji Qamaruddin mentions in the Schedule of property as under:- "Shop No, 194/861 Ward 'A', which goes to show that the Inquiry Form already mentioned also refers to the same shop.
10. ' It is, therefore, clear that the identity of the shop was not disputed nor was such an issue settled and evidence led. The plea about identity of the shop is presumably raised as an afterthought due to the fact that in Inquiry Card no building No, is mentioned. It is being pressed for the first time in second appeal though it is a question of fact. Mr. Ahmed Saeed Qureshi, the learned counsel for respondents has relied upon decision of the Supreme Court in Atta Hussain Khan v. Muhammad Siddique Khan and others, in which it was inter alio observed that the High Court was justified in not entertaining a plea which was never raised by the defendant in his written statement and in connection with which no specific issue was at all framed.
11. ' Mr. Burney, the learned counsel for the appellants has relied upon decision of their Court in Second Appeal No, 159 of 1977 on the point regarding dispute about identity of property. The facts of that case however were different as the main point urged before the Ist Appellate Court was that there was no identity between property transferred to respondent and the tenements in the occupation .
12. Of the appellants and the Ist Appellate Court while noting that the property transferred to the respondent and the properties in occupation of appellants bear different numbers and the transfer document did not bear the tenement numbers of the premises in occupation of the appellants, had rejected the contention of the appellants on the ground that the matter stood concluded by admission made by the learned counsel for the appellants before the Rent Controller that respondent was the owner of the premises occupied by the appellants.
13. ' The counsel for the respondent in that case was unable to refer to any evidence on the record from which it would positively be concluded that the tenements in question were included in the property transferred to the respondent. It was therefore, held that looking to fact that appellants in1 their written statements had admitted that they were in occupation of the tenements coupled with firm denial on their part about the existence of relationship of landlord and tenant between the parties, the Ist Appellate Court should not have relied upon the concession allegedly made by counsel for appellants that the respondent was transferee of the tenements in occupation of the appellants.
14. ' The facts of the instant case are different and there is clear documentary evidence such as the P.
15. T.
0. Extra that Haji Qamaruddin had purchased the shop in question and for reasons already given, it is not a case of mistaken identity of the shop.
16. ' The main contention on behalf of the appellants that Gurmukhdas was in possession of the shop since before 1947, if found to be correct would make the tenancy a statutory one. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 reads as under:- "Section 30. Protection of certain occupants.-(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947, in any industrial concern, Cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer:- ' Provided that:-
(a) It shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for other properties in the locality generally; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant :-
(i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledgement due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or
(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are L destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, who owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (I) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."
17. ' The provisions of section 30 aforesaid have been quoted in extenso as the same have bearing on the pleas raised on behalf of the appellants.
18. The question whether the tenancy was statutory or contractual is a question of fact and both the learned Rent Controller and the first appellate; Court have given concurrent findings with regard to the issue holding that Gurmukhdas held contractual tenancy. The finding was arrived at by considering both the oral and documentary evidence produced by the parties.; It is true that the fact that the Enquiry Card of the Office of Custodian' Evacuee Property (Exh. 15 of the record proceeding of the Rent Controller)! Was also considered in which Kishnomal son of Sanjomal was shown to have been in possession of the shop after 1947, and the shop is mentioned as D. S. No, 194 Ward 'A', but firstly as already stated the plea of identity of the shop was never raised and secondly the P. T.
0. In the 'Schedule of Property' mentioned shop 194/861 Ward `A' as the shop transferred to Haji Qamaruddin. The learned Rent Controller giving reasons for his finding observed that although Haji Qamaruddin had produced the aforesaid documentary evidence, on behalf of the heirs of Gurmukhdas, no such evidence was forthcoming. He considered the evidence of the four witnesses examined on behalf of the heirs of Gurmukhdas to be interested and unconvincing. In the impugned judgment of the first appellate authority the same evidence was reconsidered and it was observed that if Gurmukhdas had really been in possession of the shop in dispute he should have been in a position to produce receipts of rent paid to the Custodian of Evacuee Property by him.
19. ' The learned Rent Controller and the learned first Appellate authority also considered the documentary evidence with regard to the execution of the lease deeds (Exhs. 16 to 19) yearly by Gurmukhdus starting with the lease deed in 1963. It was held by the learned Rent Controller that it was for the heirs of Gurmukhdas to show that he was in the possession of the shop since 1958 which they had failed to do. The first appellate Court examined in detail the oral evidence of the witnesses examined by the heirs of Gurmukhdas on the point of possession of the shop and discarded the same as interested and unconvincing. He, therefore, agreed with the findinf of the Rent Controller with regard to the issue. He, however, observed that the complication had arisen as in the Rent application, Qamaruddir had stated that Gurmukhdas was tenant in the shop since 1- 10-1968 for the period of a year. He had suppressed the fact with regard to the previous agreements between the parties and he had further suppressed the fact tha hb had given notice to Gurmukhdas (Exh. 22) which fact he admitted ii cross-examination. The first appellate Court observed that it was true that on 17-6-1962, Gurmukhdas was in possession of the shop but before that date there is no proof or evidence that he was in possession before 20th December, 1958, as claimed by him. It was further observed that no receipts of the Custodian had been produced to show that Gurmukhdas ha been in possession before 20th December, 1958.
20. In Gul Afzal Khan v. Muhammad Ilanif Arif, it was inter alia held that the concurrent finding of fact cannot be challenged in second appeal unless the same is based on a misreading of evidence or material evidence is ignored. For the reasons already given, no such defect in the concurrent findings of the two Courts below has been pointed out.
21. The contention of Mr. Burney, the learned counsel for the appellants that there was no default in the payment of rent was based firstly on the argu ment that since Gurmukhdas was a statutory tenant and used to pay Rs. 12 as rent to the Custodian Department, and further, that as under the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the tenant in possession of properties transferred to some other person was to be a tenant on the same terms and conditions as to the payment of rent, the demand of rent at the rate of Rs. 40 p. in. being excessive and against the statutory provision could not have been charged and therefore, the payments made at the rate of Rs. 40 p. m., if counted towards the alleged arrears which show that there are no arrears of rent due to the respondents. Secondly, it was argued by him that in view of the provisions of sec tion 13(2)(1) of the Urban Rent Restriction Ordinance, 1959, there could be no arrears of rent if the same was paid within 15 days after the expiry of the time fixed in the2 agreement of tenancy with his landlord or in the absence of any agreement, within sixty days from the period for which the rent is payable.
22. With regard to the first argument, it is hereby stated that in view of the concurrent finding with which I agree, that the tenancy was contractual tenancy, the argument has no weight but even if it had been satisfactorily proved that Gurmukhdas was in possession of the shop before the 20th day of December, 1958, since Qamaruddin had purchased the property C in 1960 and given notice of the transfer on 17.6-1962 (Exh. 22) clearly a period of six years from the date of notice had pissed before 39-9-1968 when the lease in which the rent was fixed at Rs. 40 p. m., was executed by'
23. Gurmukhdas on the strength of which the tenancy was started on 10-1-1968 for a period of one year, the rent fixed was legal and proper.
24. With regard to the Ilnd argument, since there was agreement of tenancy, he had to pay the rent due by him with 15 days of the time fixed herein.
25. As observed by the First Appellate Court the appellants had not been able to account for payment of rent for the months of December, 1968, an January, 1969, even if it is presumed that rents for the months of February, 1969, to September, 1969, were correctly tendered. Appellant Arjandas had admitted that he had not sent rent of January, 1969, by money order, D and, as correctly observed by the first appellate Court the postal receipts do not show that the appellants had sent rent for the month of January, 1968. Under the last agreement of lease by Gurmukhdas the rent was payable in advance and therefore it is correct position that no rent for the month of Janu ary, 1968, was paid or tendered.
26. 1, therefore, find no merit in this second appeal which is dismissed with no order as to costs. The appellants are hereby ordered to put the E respondent in vacant possession of the shop premises within two months of the date of this order. PLD 1979 SC 965 PLD 1979 Lah.388