' GHANI, J.-- Mr. Usman Ghani Rashid, Advocate states, "I am busy before another Bench and I will appear before this Court immediately after I finish that matter".
' We asked Mr. Usman Ghani Rashid how this petition is maintainable as in our view, an alternate remedy by way of filing of suit is available.
' He states that there is a case of Supreme Court reported in PLD 1967 and the name of the case is Ahmedia Anjuman. He has nothing further to add to that.
' He states that he has filed the petition to seek a direction against the defendants for performance of public duty.
2. We have gone through the contents of the petition and the documents filed along with it.
' The case of the petitioner as disclosed in the petition is that he is the transferee of premises bearing No,1-B-93, situated at Sinjhore vide P.T.D.No, 7715, dated 25th October, 1966. According to the petitioner he let out the said premises to the respondents and handed over its possession to the Government functionaries where a school was established..
' The petitioner however has neither stated in the petition the date of delivery of possession of the premises to the respondents nor the terms and conditions on which the said premises was given to the Government. It would be relevant to reproduce here para. 5 of the petition which reads as follows:-- "5. That the possession of the 'said property. was taken by and on behalf of respondents in the year 19-- but till date no rent has been paid."
(Note:--The petitioner has left the year when possession was allegedly given, blank which we have shown by underlining it'.)
' It is also surprising to note that no plea has been taken in the petition that the parties at any time agreed upon the rate of rent to be paid. The only plea raised by the petitioner about rent in pars 11 reads:-- "The petitioner claims rent at Rs,500 p.m. in respect of the said property."
' The petitioner pleaded that he does not wish to displace the school from its premises and, therefore, has not moved application for ejectment under the provisions of Sind Rent Premises Ordinance. After stating in para 13 that since payment of rent was disputed by and on behalf of the respondents only on the ground of alleged defective title of the petitioner which disputed question stands concluded by the order passed by the Chairman Evacuee Trust Property Board on 20th March, 1983, the petitioner contended that he is entitled to receive rent at the rate of Rs,500 per month which having not been paid in spite of repeated representations, this petition under Article 9 of the P.C.O. 1981 was filed claiming the following reliefs:-- (a)to declare that the respondents are liable to pay rent to the petitioner in respect of the property mentioned above in which Government school is being run.
(b) to direct that the respondents should pay rent and arrears thereof to the petitioner without any further loss of time. c) Cost of the petition. d) Any other just and proper order in the circumstances of the case."
3. Before proceeding further we would like to refer here to the order passed by the Chairman Trust Property Board wherein the statement of the petitioner to the following effect has been noted:-- "According to him (the petitioner) the rent of the property was not fixed but later on he sent a notice of rent amounting to Rs,500 per month to school authorities."
(The underline is by us).
4.On the consideration of the averments made in the petition and after liking notice of the statement of the petitioner made. before the Chairman Evacuee Trust Property Board we are of the opinion that this petition is not maintainable and that the extraordinary constitutional jurisdiction could not be invoked for claiming the reliefs reproduced above. Neither the date of delivery of possession of the premises to the respondents has been disclosed in the petition nor it is shown or even pleaded that any rate of rent was agreed to be paid by the respondents to the petitioner. In the circumstances neither any order or direction can be given to the respondents to pay rent or arrears of rent to the petitioner nor can we grant any declaration that the respondents are liable to pay rent to the petitioner in respect of the premises in question. In our opinion to grant such a declaration by a Court of law would be against the provisions of section 42, Specific Relief Act and rule laid down in the case of Malik and Hag v. Muhammad Shamus Islam PLD 1961 SC 531. The issues and the questions involved in such a case obviously cannot be decided except by recording evidence. No performance of any public duty on the part of the respondents is involved in the case.
' The reference made by the learned counsel for the petitioner to the case of Anjuman-e- Ahmadiya is reported in PLD 1966 SC 639 and not in P. L D 1967 SC as stated. After going through the facts of the said case we find that the said case is also of no help to the petitioner. In the said case the Anjuman was granted a piece of land, possession of which was delivered to it and it started construction of a mosque thereon after enclosing its boundary wall all round. The Municipality at first took objection to this but subsequently the matter was compounded on payment of necessary fees. Thereafter all of a sudden the President of the said. Anjuman was served with a notice saying that the Government had decided to cancel the sale of the land to it and the Anjuman was called upon to vacate the said land. This order was challenged in the High Court by the said Anjuman by filing a Constitutional petition. The learned High Court of Lahore dismissed the said petition in limine holding that the civil suit was an adequate alternate *remedy to which the Anjuman should resort. Leave was granted in the case by the Honourable Supreme Court to consider whether the remedy by way of a suit was an adequate alternate remedy as the order complained of appeared to be 'one purporting to be made in exercise of public power and suitable prima facie for scrutiny under the prerogative jurisdiction". Dealing with the question of availability of alternate adequate remedy in4 the circumstances of that case, the Supreme Court observed:-- "Thus, once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and efficacious."
' The Honorable Supreme Court further held:-- "The other adequate remedies provided by law would, in the ordinary circumstances, having reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in subsAce a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of` a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article.
' Even in the first case where full redress can be given by an order contemplated under sub-Article
(2) of Article 98 if an alternative remedy by the law creating the right or obligation has been prescribed the Court has still to consider whether such a prescribed alternative remedy is equally, inexpensive, expeditious, efficacious and beneficial.
' Applying these tests to the present case we cannot help observing that what the appellant really wanted was the per formance of a public duty, namely, that the authorities seeking to cancel its grant should proceed in accordance with law, namely the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made."
(The underlining's are by us).
' Considering the rule laid down as above by the honorable Supreme Court we are of the opinion that in this case the enforcement of an alleged right or obligation created could be adjudicated upon and enforced without much expense and inconvenience under the general remedy provided by the law by way of a suit. In reaching this conclusion we are also conscious of the fact that neither any agreement has been pleaded nor the date of commencement of the tenancy has been given in the petition. Even the rate of rent is not alleged to have been agreed upon between the parties. These questions including the questions of bar of limitation for recovery of alleged arrears would also have to be gone into by the relevant Court. These questions amongst others cannot be decided without recording evidence.
' For the above reasons and being of the further opinion that performance of any public duty is not involved, this petition invoking constitutional jurisdiction of this Court under Article 9 of Provisional Constitution Order of 1981 is not maintainable. The petition is accordingly dismissed in limine.
Petition dismissed.
1989 MLD 700 (Karachi] Before Ajmal Mian, J MUHAMMAD IFTIKHAR MALIK--Appellant versus Mst. SURRAIYA SULTANA--Respondent First Rent Appeals Nos. 900 and 1045 of 1982, decided on 29th April, 1984.
Sind Rented Premises Ordinance (XVII of 1979)-- ---S. 21--Ejectment--Default in payment of rent and unauthorised construction by tenant--Order of ejectment by Rent Controller on ground of unauthorised construction challenged--No evidence led to prove that construction had impaired value or utility of tenement--Finding of Rent Controller set aside holding that only unauthorised construction which impairs value or utility of tenement can furnish ground for ejectment--Ejectment ordered on ground of default in payment of rent.
[p. 702] A Ms.t. Alima Ahmed v. Amir Ali PLD 1984 SC 32 ref. Shaikh Mir Muhammad for Appellant.
Abul Khair for Respondent.
Date of hearing: 29th April, 1984.
' These two appeals are inter-connected and have been directed against the order, dated 7-8- 1982, passed by the learned XII Senior Civil Judge/Rent Controller, Karachi in Rent Case No, 895/77.
' The brief facts leading to the filing of the above appeals are that the respondent in F.R.A. No, 900/82 and appellant in F.R.A. No, 1045 of 1977 filed the above rent case on two grounds, namely default for the period commencing from June, 1976 up to February, 1977 as the rent case was filed on 1-3-1977, and, unauthorized construction. The above application was resisted by the appellant in F.R.A. No, 900/82 and respondent in the other connected appeal. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:--
(1) Whether the opponent is willful defaulter. If so since when?
(2) Whether the opponent has made unauthorized construction. If so its effect?
(3) What should be order be?
3. The respondent/landlady examined her husband Syed Adil Hussain, whereas the appellant/tenant examined himself and two witnesses Muhammad Amin and Muhammad Ali. The learned Rent Controller after hearing the parties allowed the above rent application on the ground of unauthorized construction but dismissed the application on the ground of default. The appellant/tenant has filed F.R.A. No,900/82 against the order of ejectment, whereas the respondent/landlady has filed F.R.A. No,1045/82 against the finding of the learned Rent Controller on the question of default.
4. I will take up first the F.R.A. No,900/82 filed by the appellant/ tenant. In support of the above appeal Mr. Shaikh Mir Muhammad, the learned counsel for the appellant/tenant has contended that the respondent/landlady has not led any evidence to prove that the alleged unauthorized construction has in any way impaired the value or utility of the tenement in question. He has further submitted that factually the appellant/tenant had put up asbestos sheets on the roof of the flat and not on the roof of the shop and, therefore, there is no unauthorized construction or addition to the tenement.
' On the other hated, it was urged by Mr. Abul Khair, Advocate, for the respondent/landlady, that since the appellant/tenant has admitted the construction, the burden of proof was on him to show that he had obtained the permission of the respondent/landlady.
5. I have gone through the rent application and have noticed that in para. 3, the following averment has been made by the respondent/ landlady:-- "That the opponent has made unauthorized construction without the consent of the applicant and contrary to the terms of the agreement."
' In my view, the above averments are vague and do not contain the material particulars as to the nature of the unauthorized construction or the factum as to how the alleged unauthorized construction has impaired the value or utility of the tenement. I am inclined to hold that not every unauthorized construction can furnish a ground for ejectment' but it is only the unauthorized construction which impairs the value or the utility of the tenement. 1 am, therefore, not inclined to maintain the finding of the learned Rent Controller on the question of unauthorized construction as the respondent/landlady has not led any evidence on the question of impairing the utility or the value of the tenement. The appeal is, therefore, allowed and the finding of the learned Rent Controller is set aside. There will be no order as to costs.
6. In support of F.R.A. No,1045/82 Mr. Abul Khair Ansari, Advocate, for the appellant/landlady, has urged that since the factum that the rent was not paid from June, 1976 stands proved the finding of the learned Rent Controller on the question of default is not sustainable.
' On the other hand, it was contended by Mr. Shaikh Mir Muhammad, Advocate for the, respondent/tenant, that the appellant/ landlady's rent controller used to come to collect the rent and since he had not turned up the respondent/tenant had first sent the rent through cheque on 30-9-1976 for a sum of Rs,725 and thereafter the respondent/ tenant started depositing the rent in Court.
7. It may be observed that the factum of remitting rent through cheque on 30-9-1976 is denied by the appellant/landlady. The respondent/tenant has not produced the undelivered registered cover.
However, Mr. Shaikh Mir Muhammad has invited my attention to the photo stat copy of registered cover and the photo stat copy of the acknowledgement receipt unsigned. He has not been able to state as to why the original undelivered cover was not filed. Be that as it may, even if I were to accept the factum that the rent was remittal on 30-9-1976 for the period commencing from 1st June, 1976 and that the same was refused, the default still remains. The rent for the month of June was to be paid in the first week of July, 1976. After excluding 60 days grace period, the rent for the month of June was to be paid by the first week of September, 1976. 'Admittedly the alleged cheque was sent on 30-9-1976 which was not received by the appellant/landlady. Even in the photo stat copy of the cover there is no endorsement of the refusal of the same. ,Be that as it may, as observed above that there will be still default for the month of June even if the respondent/tenant is allowed the benefit of the above cheque. In the case of Mst. Alima Ahmed v. Amir All PLD 1984 SC 32, the Hon'ble Supreme Court of Pakistan has held that alleged practice that the landlord's attorney used to collect accumulated rent was no defence to a ground of default. It may be advantageous to reproduce herein below the relevant obser vations:-- "The ejectment application was instituted on 1-3-1971. The appellant alleged non-payment default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admitted payment of rent from April, 1970 to September, 1970, by cheque, dated 20-8-1970 and next by money order on 27-3-1971 for the rent of October, 1970 to March, 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousaf's case the tenant was clearly in default for April and May, 1970 and October to December, 1970. This was so in spite of his having received a notice (Exh.P.10), dated 14-9-1970, calling upon him to pay the arrears and the current rent directly to the landlady. The alleged practice of the attorney of the landlady of collecting accumulated rent is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the benefit for the period October to December, 1970 after receipt of the notice (Exh.P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrable incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misappre hension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of the discretion and that such interference was unjustified, and fence merited interference in Second Appeal. Further from the' supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted, and applied. The Ordinance projects the tenants against eviction and encashment of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being fairness or in the name of justice."
8. The above Supreme Court judgment on all fours is applicable to the present case and admittedly there was default for the month of June, 1976. The appeal is, therefore, allowed and the finding of the learned Rent Controller is reversed. The respondent/tenant is directed to hand over the vacant possession of the tenement to the appellant/ landlady. However, with the consent of Mr. Abul Khair the learned counsel for the appellant/landlady I would allow one year's period from today, as the subject-matter is a shop, on the condition that the respondent/tenant shall continue to deposit rent in terms of the Rent Controller's order which the appellant/landlady shall be entitled to file an execution application before the expiry of the above period of one year. Furthermore, in case the respondent/tenant fails to hand over vacant possession on the expiry of one year's period the learned Rent Controller shall issue a writ of ejectment without any further notice to the respondent/tenant.
' Mr. Abul Khair the learned counsel for the appellant/landla7dy, requests that the appellant/landlady be allowed to withdraw the rent deposited in Court, to which Mr. Shaikh Mir Muhammad, Advocate for the respondent/tenant has no objection. The Rent Controller shall pay the above amount to the appellant/landlady upon an application. There will be no order as to costs.