1. ' As the two appeals bearing F.R.A No, 784 of 1982 and F.R.A No,824 of 1982 have arisen from the same rent dispute between the same parties and in respect of the same premises, I propose to dispose them by this common order.
2. ' Briefly stated the facts giving rise to the aforementioned appeals are that the appellant Zohra Begum who is the owner/landlady of the Plot No,569, measuring 949 Sq. Yds, Garden East, Karachi, leased out the said plot to the respondents, Pakistan-Burmah Shell Ltd., by registered lease-deed, dated 27th January, 1975. The lease was to remain in force for ten years, effective from Ist May,1975.
3. As per terms of the lease agreement, the rent Rs,2,750 per month was payable annually in advance before commencement of each year. In pursuance of this stipulation the respondents sent to the appellant a cheque for Rs,33,000 being the rent for the whole year,in advance on 19th April, 1981.
4. Meanwhile,on 23rd February,1981, the appellant instituted ejectment case against the respondents on the ground of personal requirement which was pending adjudication in the Court of Rent Contoller X , Karachi. Accordingly, the appellant declined to accept the cheque which was returned to the respondents two days later i,e, on 21st April, 1981, on the ground of the pendency of the aforesaid ejectment case. Faced with this situation the respondents moved an application No, 2204 of 1981 in the Court of Rent Controller, XII, Karachi and deposited the rent in that Court on 13th May,1981. As the Rent Controller XII had no jurisdiction in respect of the area where the disputed premises situates, the appellant filed another application seeking ejectment of the respondents from the demised premises, this time on the ground of default in payment of rent. The application was resisted by the respondents who vehemently refuted the allegations of the default. The learned Rent Controller after taking into consideration the evidence led by the parties, dismissed the ejectment application by his order, dated 3rd July,1982. The appeal F.R.A No,784 of 1982 is directed against this order.
5. ' It appears that on 28th October,1981, the Rent Controller XII returned the respondents' Application No,2204 of 1981 for presentation before the Court having jurisdiction. Thereupon the respondents approached Rent Controller I, who had jurisdiction in the matter with Miscellaneous Rent Application No,5182 of 1981 praying therein that the rent deposited by them in the Court of Rent Controller XII be treated as having been deposited in the former Court (Rent Controller I). By his order, dated 31st July, 1982, the learned Rent Controller I granted the above prayer of the respondents. The appeal F.R.A No,824 of 1982 has been preferred from the latter order of the Rent Controller I.
6. ' The learned counsel for the parties have made elaborate arguments in support of their respective view points. They have also cited case law liberally to reinforce their arguments.
7. ' Admittedly, the tenancy between the parties is grounded on the lease-deed, dated 27th January,1975. The perusal of this document reveals that inter alia the rent in respect of the demised premises is payable annually in advance before commencement of each year. It is also clear from the lease-deed that year of tenancy commences from Ist May. Thus, according' to the terms of lease agreement, the rent for the year, 1981-82 was payable on or before 30th April, 1981. The respondents' case is that a cheque for Rs,33,000, being rent for the year,1981-82 was sent to the appellant on 19th Apri1,1981, eleven days before the commencement of the tenancy year. The appellant has admitted the receipt of the cheque in para. 6 of the ejectment application in the following terms: ' That on 19th Apri1,1981, the Respondents sent a cheque for Rs,33,000 to the Applicant which the Applicant duly refused and returned and which was received back by them on 21st April,1981."
8. Despite the express concession made on behalf of the appellant about receipt of the cheque in the above words, the learned counsel for the appellant thought that the respondents were still defaulters within the meaning of section 10(3) of the Sind Rented Premises Ordinance,1979 (hereinafter referred to as the new Ordinance) which reads as under: "Where the landlord has refused or avoided to accept the rent it may be sent to him by postal money order or, be deposited with the ' Controller within whose jurisdiction the premises is situate."
9. ' According to the learned counsel for the appellant, as the respondents failed to send the rent by money order or deposit it in the Court of Rent Controller having jurisdiction and thereby violated the above provision of law, they are liable for the default in payment of rent. He further submitted that in view of the pendency of the ejectment case filed earlier, the appellant was justified in refusing the cheque. His argument was that since the rent case was pending between the parties, the appellant was prohibited by law from accepting the rent directly from the respondents.
10. Therefore, the learned counsel for the appellant expressed his opinion that the appellant's refusal being right, it could not be argued that the respondents were not liable for the default on the ground of the appellant's refusal. On the other hand, it was submitted by the learned counsel for the respondents that the appellant having refused to accept the rent, could not hold the respondents responsible for the default.
11. ' The question that arises for consideration is whether the appellant could take advantage of her own refusal. Having first refused to accept the rent whether the appellant could turn round and declare the respondents as defaulters. As stated above, it is an admitted position that the appellant refused to accept the rent sent to her by the cheque. The learned counsel for the appellant, however, emphasized that the appellant's refusal being justified, she could seek ejectment of the respondents. According to him while the appellant's earlier rent case was pending in the Court, she was prohibited by Law from accepting the rent directly from the respondents.
12. During pendency of rent case the only course open to the respondents, the learned counsel averred, was to pay the rent by depositing in Court. This argument is far from convincing. The learned counsel for the appellant was unable to point out any provision of law which places any bar on the landlord for accepting the rent directly from the tenant during pendency of the rent case. The only prevision to which reference can be made in this connection is section 16(1) of the new Ordinance which clearly shows that it is for the landlord to move the Rent Controller to call upon the tenant to deposit rent in the Court. Since the appellant who is landlord in the instant case did not make such move the blame for the omission cannot be laid at the door of respondents.
13. There is nothing in the above section to show that in case the Rent Controller has not passed tentative order calling upon the tenants to deposit rent in the Court, the landlord cannot accept the rent directly from the tenants. The rent case which was pending in the Court was based on the ground of personal requirement of the landlord. Until the landlord succeeded in securing the ouster of the tenants, the latter were to continue paying the rent regularly as per terms of the tenancy.
14. Since the respondents/tenants had sent the cheque in question in keeping the terms of the tenancy agreement, the refusal on the part of the appellant/landlord to accept the same was absolutely unjustified. Of course the appellant could not be forced to accept the cheque for the rent amount, but if she refused ,to accept it, the respondents could not be made to suffer on that account.
15. ' In support of the above view reliance has been placed on Ramkrishna v. Muhammad Yahya AIR 1960 A11.482 wherein it was held: "If a landlord without lawful excuse refuses to accept rent tendered by the tenant, he cannot afterwards treat the tenant as defaulter or serve a notice of demand under section 3(1)(a) as an excuse for filing a suit for ejectment."
16. ' Another case on the same point is of Abdul Bashir v. Muhammad Rafiq Khan Sherwani PLD 1974 Kar. 451 wherein it was observed:- "Since the respondent herein admittedly paid rent at the above rate upto the time when the rent application out of which this appeal has arisen was filed, and even thereafter sent rent by Money Order at the aforesaid rate to the appellant but the latter refused to accept the same without assigning any reasons, the respondent cannot be considered to be in default."
17. ' In the third case of Najanuddin v. Zamir Ahmed PLD 1982 Kar.188, the landlord expressed his inability to receive rent due to his being busy in preparation of accounts. It was held that the Rent Controller rightly refused to evict the tenant.
18. In view of the above authorities with which I am in respectful agreement, the appellant's refusal to accept rent from the respondents being without justification would not entitle her to seek ejectment of the respondents on the ground of the default in payment of rent. This view finds further support from well-known maxim of law; "no man can take advantage of his own wrong".
19. Accordingly, the appellant who refused to accept rent cannot be permitted to take advantage of her refusal and sue the respondents for ejectment on the ground of default in payment of rent. In this connection, my attention has been drawn to page 191 of Broom's Legal Maxims by R.H.Kersley, Tenth Edition (1939) wherein it is stated: " It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure...." ' for meaning of the word "Wrong" used in the above maxim, the learned appellant's counsel has relied upon the definition of the term as given in Black's Law Dictionary. It reads as under:- "Wrong. A violation of legal rights of another; an invasion of right to the damage of the parties who suffer it, especially a tort.
20. ' On the basis of the above definition of "Wrong" the learned counsel argued that appellant by her refusal to accept the rent has not violated the right of the other party and, therefore, her refusal does not fall within the definition of "Wrong". Accordingly, the appellant cannot be accused of taking advantage of her own wrong. I am not impressed with the argument of the learned counsel for the appellant who seems to have overlooked the elaboration of the definition of the word, "wrong" in the later portion of the definition itself. It is to the effect: "It usually signifies injury to person, property, or relative non-contractual rights of another than wrongdoer, with or without force, but, in more extended sense, includes violation of contract."
21. ' It goes without syaing that in the instant case the tenancy is based on the written agreement wherein it is stipulated that the rent would be paid annually in advance before commencement of each year. This stipulation obviously requires the respondents to pay the rent and appellant to accept the same. The fact that the appellant refused to accept the rent without any justification, was clearly in violation of the contract. Accordingly, the refusal of the appellant does fall in the definition of "Wrong". Her counsel's argument that her refusal was not without reason, as the rent case was already pending and appellant could not accept rent directly from the respondents has already been rejected as untenable.
22. ' The ordinary literal meaning of the word "wrong" as given in Cassel's English Dictionary is inter alia: "not that which is required, intended, proper best, etc." Viewed in the light of the above definition, the appellant's refusal to accept rent not being required or intended or proper was clearly "wrong".
23. ' Reverting to Broom's Legal Maxims, it would appear that reference has been made to decided cases in which the maxim that "no man can take advantage of his own wrong" has been applied.
24. At page 192 it is stated. " It is contrary to justice that a party should avoid his own contract by his own wrong. The same rule of construction has been applied to other contracts where a party bound by a condition has sought to take advantage of his own breach of it to annul the contract."
25. ' Again at page 193 it is stated: "It is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance At the same page at later stage it is stated: "Again, where a creditor refuses a tender sufficient in amount and duly made, he cannot afterwards, for purposes of oppression or extortion, avail himself of such refusal."
26. In view of what has been stated above, the appellant cannot be permitted to take advantage of her refusal which was not only without B justification but was also not in keeping with the terms of the written lease agreement between the parties.
27. ' The next argument of the learned counsel for the appellant was that irrespective of the appellant's refusal to accept the rent, the respondents were under legal obligation to pay the rent in accordance with the mode provided in section 10(3) of the new Ordinance. According to the learned counsel, for the purpose of compliance of this section, it is to be construed in its plain and literal meaning. The learned counsel complained that instead of depositing the rent in the Court of Rent Controller having jurisdiction in this case the respondents deposited it in the wrong Court and thereby they committed default sufficient for ousting them from the disputed premises. In support of his arguments the learned counsel relied upon English case reported as 1891 Law Reports (Appeal Cases) page 531 ( 543), wherein it was held: "The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such best declare the intention of the law giver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute and to have recourse to the preamble, which according to Dyer, C.J., is a key to open the minds of the makers of the Act and the mischiefs which they are intended to redress."
28. ' In the same context the other Privy Council's case to which the learned counsel has made reference is reported as 1913 Law Reports (Appeal Cases) page 107 (117) wherein it is observed: "Now it is the universal rule that in construing statutes, as in construing all other written instruments, grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instruments, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency but no further."
29. ' The third case in the line is of 1932 Law Reports (Appeal Cases) 676 wherein following observations are material: and in my opinion the safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases."
30. ' The view expressed in the above English cases also found favour with this court in the case of Miss F. Dubash v. Sind Labour Appellate Tribunal, Karachi PLD 1978 Kar.302, wherein the D.B. Of this Court held as follows:- "We are unable to accept this submission, for, a Court is not empowered while interpreting a provision of the statute to remove anomalies in the statute and it is well laid down that the Court has to give effect to the plain meaning of the statute irrespective of the hardship that might ensue in doing so. We are not here to question the wisdom of the Legislature in enacting a particular provision of law but the only function of the Court in this regard is to discover the true meaning, intendment of the statute."
31. The views expressed in the above authorities are not in dispute. No doubt where the language used in the statute is plain and admits of but one meaning, the question of interpretation in such case can hardly be said to arise. The language that case must be given effect to, no matter how harsh or absurd or contrary to common sense the result may be. To repeat, the plain language of subsection (3) of section 10 of the new Ordinance requires the tenant to send the rent by Money 'Order or deposit it in the Court having jurisdiction in the event of the landlord's refusal to accept it.
32. This only means that after the landlord hat refused to accept the rent, the tenant's liability for payment of the rent is not over. So long he is occupying the rented premises and the rent is due from him he is bound to pay the rent. However, in the instant case the controversy is not over the question whether the tenants have availed or not the modes prescribed in the above subsection for paying the rent. What is actually involved in the present case is whether the respondents have committed default in payment of rent. In view of the Unequivocal admission on the part of the appellant that the respondents had sent her the cheque for the due amount of rent within time as per agreement of the tenancy, they cannot be held to have committed any default.
33. ' The appellant's next objection that the rent due from the respondents was deposited not only in the wrong court but also beyond time fixed for the payment, is alto without any force. The admitted position is that after the cheque referred to above was returned to the respondents, they deposited the rent in the Court of Rent Controller XII on 13th May,1981. According to the learned counsel for the appellant the Rent Controller XII having no jurisdiction in the case, the deposit in his Court was not deposit in accordance with the law. In this connection, the learned counsel has stressed the words, "be deposited with the Controller within whose jurisdiction the premises is situate," used in subsection (3) of section 10 of the new Ordinance. While arguing that the learned Rent Controller XII had not jurisdiction in the case, the learned counsel seems to have completely overlooked the requirements of subsection (1) of section 4 of the new Ordinance which deals with territorial jurisdiction of Rent Controller, It reads as under:- "(I) Government may appoint one or more Controllers in any district and if more than one Controller is appointed in the same district Government shall define the local limits within which each of such Controllers shall exercise jurisdiction provided that the Controllers working immediately before coming into force of this Ordinance shall continue to exercise their respective territorial jurisdiction until it has been altered by the Government."
34. In the instant case Rent Controller I to whose Court the rent deposited by the respondents was ultimately transferred, admittedly possessed the territorial jurisdiction in respect of the area where the disputed premises is situate. The learned counsel for the appellant was not able to show that the said territorial jurisdiction was assigned to the said Conrtoller by order of the Government: on the contrary it was conceded by him that the work relating to the area which covers the disputed premises was given to Rent Controller I by local distribution made by the District Judge, Karachi is still a single judicial district presided by one District Judge. Therefore, in absence of Government order fixing the territorial jurisdiction of the Rent Controllers in the Karachi District, the territorial jurisdiction vested in such controllers shall be coterminous with the territorial limits of Karachi District. Accordingly, it cannot be argued that the respondents deposited the rent in the Court having no jurisdiction. In this connection the learned counsel or the respondents referred to the case of Muhammad Ishaq v. Saiduddin Swaleh PLO 1959 (N.P) Kar.669 in which it was observed: "It should be remembered that even in cases of lack of territorial jurisdiction, the judgment of a Civil Court (except in cases arising under private international Law) is not void. It is not liable to be challenged in collateral proceedings and in fact even before an appellate Court, the plea is not open unless prejudice is caused .
35. ' It was further submitted by the learned counsel for the respondents that even if it be assumed that the deposit was made in the Court without having territorial jurisdiction, the act of depositing the rent amount was not wilful as it was made in the circumstances beyond control of the respondents and consequently, they could not be penalized for their innocent act. On the other hand the argument of the learned counsel for the appellant was that it was sheer negligence of the respondents that the rent was deposited in the Court without jurisdiction. According to him if they had exercised due care and diligence, the mistake of depositing the rent in the wrong Court could have been avoided.
36. ' It is an admitted position that one more rent case was already pending between the parties in the Court of Rent Controller X when the dispute involved in the present case arose. Therefore, for the purpose of depositing the rent, the first impression that the respondents might have entertained was that the deposit was to be made in the said Court. In fact the application for permission to deposit the rent was typed out as addressed to the Rent Controller X. According to the learned counsel for the respondents when the application was taken to the reader of the said Court for presentation before the Rent Controller, it was revealed by the reader that the Rent Controller X had no longer jurisdiction in respect of the area where the disputed premises is situate. According to the information conveyed to the respondents' counsel by the said reader, the jurisdiction was assigned to Rent Controller XII. The assertion to this effect finds support from the change of the Court in the application, which is significant, as the typed figure X has been changed into figure XII by adding II in roman in ink. The information as regards change of the jurisdiction was further confirmed from the fact that the Rent Controller XII entertained this application and allowed the respondents to deposit the rent in his Court. It was only subsequently after nearly 5 months that this Rent Controller realized that he had no jurisdiction. Accordingly he returned the application to the respondents on 28th October,1981 for presentation before the Court having jurisdiction. Thus, it came to the notice of the respondents after nearly 5 months from their depositing the rent in the Court of Rent Controller XII that the latter had no jurisdiction in the case.
37. ' It was submitted by the learned counsel for the respondents that after the respondents' application for depositing of the rent was entertained and accepted by the Rent Controller XII, they were obviously misled into believing by the Court's own action that the said Rent Controller had the necessary jurisdiction and, therefore, the respondents could not be penalized for the act of the Court. In support of this argument the learned counsel cited a number precedents. The first in the series is the case of Insahallah Begum v. Shamim Akhtar PLD 1979 Note 55at p. 38 wherein reference was made to maxim 'Actus curiea neminem gravabit' (i,e, an act of Court shall prejudice no man) and it was held that this principle was fully applicable in the case in which default in depositing rent was occasioned because of the petitioner being misled by Court's Order and the act of petitioner's depositing the rent was not wilful.
38. ' The next case on the same point is reported as Muhammad Afsar v. Muhammad Jan PLD 1961 (W.P) Lah.199 wherein the following observations are relevant in the present case: " It is a well-settled principle that no party can be made to suffer on account of an act of the Court."
39. ' In the case reported as Painda Khan v. Tiwana and another PLD 1962 (W.P) Lah.92, it was observed: " The fact that the decree should not have contained anything to the effect that the money could be paid outside the Court, cannot prejudice a party which had carried out that decree in its terms, because the acts of Court should not be allowed to prejudice any party."
40. ' The other case in the same line is of Paul Williams and another v. Hafiz Nasirali PLD 1960 (W.P)
41. Kar.174 in which it was held: "The reason behind this is that it was the Court's own order which has produced this position and neither side should be injured by the act of the Court."
42. The above authorities are fully applicable in the instant case. In this case the Rent Controller XII accepted the application of the respondents allowing them to deposit the rent, though erroneously, as he had no jurisdiction in respect of the demised premises. Nevertheless, the respondents acted upon the defective order of the Rent Controller and deposited the rent in pursuance of the said order. This being the position, the respondents cannot be subsequently, made to suffer for their acting on the mistaken order of the learned Rent Controller.
43. ' However, the learned counsel for the appellant contended that since the respondents themselves had misled the Rent Controller XII by making him believe that he had jurisdiction in their case, they cannot be permitted to place reliance on the aforesaid maxim; "an act of Court shall prejudice no man". Elaborating his view the learned counsel submitted that as soon as the respondents learnt from the reader of Rent Controller X about change of jurisdiction, it was their duty to have ascertained about the territorial jurisdiction of Rent Controller XII on their own by consulting the order passed by the District Judge distributing the rent work amongst various Rent Controllers of the District. According to him it was sheer negligence on their part that they omitted to make such enquiry before presenting the application in the Court of Rent Controller XII and, therefore, the latter Court was misled by the respondents' own act. Consequently, the learned counsel submitted, the respondents cannot be allowed to take advantage of their own default.
44. I am afraid I cannot persuade myself to endorse the above thinking. In my opinion the duty was equally cast on the Court of Rent Controller XII to have first satisfied itself that it had jurisdiction before allowing the respondents prayer for depositing of the rent. May be the respondents acted recklessly on the information conveyed to them by the reader of the Rent Controller X by taking the matter to the Court of Rent Controller XII, but once their request was granted and they were allowed to deposit rent by the Rent Controller XII, their defective information obviously G ripened into their confirmed belief that the latter Rent Controller did possess the requisite jurisdiction. This is also true for the reason that no action was taken by the Rent Controller XII for over five months and it was thereafter that realization dawned upon him that he had no jurisdiction. In these circumstances if he returned the application to the respondents belatedly they cannot be made to suffer on that account.
45. ' In view of the above discussion the appeal F.R.A. No, 784 of 1982 H has no merit and is, therefore, dismissed with no order as to costs.
46. As for the order of Rent Controller I, dated 31st July,1982 which has been impugned in the Appeal F.R.A. No,824 of 1982, it may be stated that it is not shown to have been passed in violation of any law. The prayer granted by this order is that the deposit of rent made in the,. Court of the Rent Controller XII may be treated as deposit made in the Court of Rent Controller I. As has been pointed out in the foregoing paragraphs no order passed by the Government: has been placed on record showing that the territorial jurisdiction enjoyed by either Rent Controller XII or Rent Controller I at the relevant time was assigned to them by the Government. In absence of such order, the deposit of rent which through mistake was made in the Court of Rent Controller XII cannot but be held, at worst, as an irregularity. If the same has been rectified by the impugned order, the said order cannot be held as illegal passed in violation of any law. Even if it be assumed that the Rent Controller I had no power to treat the deposit of rent made in the Court of Rent Controller XII as deposit in his own Court, the order allowing such request of the respondents can still be treated as the order permitting the respondents to make the deposit of the rent in that Court on the date on which such application was made. In the latter case the respondents' belated act of depositing the tent in the Court of the Rent Controller I would not prejudice the respondents' case in relation to the appellant. In support of this view it is not necessary to repeat the arguments already given in the earlier paragraphs. Accordingly the Appeal F.R.A. No,824 of 1982 has also no force and it is dismissed with no order as to costs.