' I intend to dispose of the above three appeals by this common judgment as common question of facts and common question of law are involved and also because the judgment in each case is the same of even dated.
2. The brief facts leading to the filing of the above appeals are that the appellants in each of the appeals is a tenant of a flat, situated in the building previously known as Lotia Chambers and now known as Mahmood Chambers situated at Adamjee Budha Bhai Road, Karachi, details of which is as follows: {{TABLE}} Name of Tenement Monthly Rent Case Rent Appeal tenant No. rent. No. No. Abdul Rashid 11 Rs.75 2366/1974 173/1981 Mst. Rukaya 9 Rs.75 2978/1974 174/1981 Abdul Rashid Maniar and two others 8 Rs.80 4149/1976 175/1981 {{TABLE}} ' It seems that the High Court in execution of a decree had put the building in question to auction.
The respondent who was also one of the tenants of the above building purchased the same in the auction on 2-2-1974. The above auction was confirmed by the High Court on 30-4-1974. In pursuance thereof a sale certificate was issued on 22-5-1974. It further seems that respondent served a notice dated 7-6-1974 Exh.2/7 upon each of the appellants. In response to the above notices each of the appellants remitted rent for a period of four months on or about 9-7-1974 through money order. It also seems that the respondent after the receipt of the money order sent a notice dated 16-7-1974 Exh.2/9, which was replied to by the appellants by a letter dated 29-7-1974 Exh.2/12. After that the respondent sent a notice under section 13-A of the late West Pakistan Rent Restriction Ordinance, 1959 Exh.1/3. It seems that after the service of the above notice, the respondent filed the above three rent cases against the three appellants on the ground of default.
It may be observed that in the rent application no period of default was specified. The above application was resisted by the appellants. In the objections to the applications, inter alia it was averred that the appellant showed all the rent receipts in his possession to the respondent and that he was given to understand that rent for February 1974 was already paid to the previous land lady and that he was fully satisfied with the documents of the appellant. It was also averred that the appellant tendered the rent when he learnt that the property was purchased by the respondent but the same was refused and thereafter four months' rent for the period from March to June, 1974 was remitted through money ,order. After that the rent of further months was remitted through money orders which were returned with the remarks 'refused'. It may be pertinent to observe that the appellants in addition to the above first money order had also sent six more money orders during the periods from 1-8-1974 to 5-2- 1975 of the various amounts covering the periods for which the rent had fallen due.
3. The learned Rent Controller on the basis of the pleadings of the parties framed the following three issues:-
(1) Whether the opponent has committed default within the meaning of Order VI of the W.P.U.R.R.O., 1959?
(2) Whether the rent for the month of February, 1974 i.e. from 2-2-1974 to 28-2-1974 is due and payable by the opponent?
(3) What should the decree be?
' The respondent filed affidavit of his attorney, one Syed Afaq Ali, whereas each of the appellants filed his own affidavit or the affidavit of the attorney in evidence. The learned Rent Controller after hearing the parties allowed the rent application by holding that there was default in payment of rent for the month of February, 1974. The appellants being aggrieved by the above judgments have filed the present appeals.
4. In support of the above appeal Mr.Nizam Ahmad learned counsel for the appellants has urged as follows:
(i) That as per rule 351 of the Sind Chief Court Rules (O.S.) an auction-purchaser is required to deposit the price within 30 days from the date of auction and as the respondent had not deposited the same as per above rule, the sale could not have been confirmed.
(ii) That since the sale was confirmed on 30-4-1974, the respondent could not have claimed rent for the month of February, 1974.
(iii) That since the appellant had produced rent receipt of the previous landlady for the month of February, 1974, the learned Rent Controller could not have held that there was default.
(iv) That the circumstances of the case are such that in any case the ejectment order was not warranted.
5. On the other hand Mr. Hafiz Abdul Baqi learned counsel for the repondent has urged as follows:
(i) That this Court cannot go into the question of validity of the sale in favour of the respondent.
(ii) That since the original sale had taken place on 2-2-1974 in favour of the respondent, he was entitled to claim rent from the above date upon confirmation of the sale by the High Court.
(iii) That the appellant had failed to examine any one to prove the allegea rent receipt of the previous landlady and, therefore, the same could not have been relied upon.
(iv) That the alleged rent receipt is a forged document as it is belied by the other documents on record.
(v) That since the respondent had served a notice under section 13-A of the late West Pakistan Urban Rent Restriction Ordinance, 1959 and as admittedly the appellant had not tendered rent for the month of February, 1974, there was admittedly default.
6. Adverting to the first contention of the learned counsel for the parties, I am inclined to hold tht this Court sitting as an appellate Court under the Sind Rent Restriction Ordinance cannot go into the question, whether the respondent had deposited the entire purchase price in terms of rule 351 of the Sind Chief Court Rules (O.S.) as it was within the competency of the Court which had confirmed the sale.
7. As regards the question, whether the respondent was entitled to claim rent from the date of the original sale namely 2-2-1974 or from the date of confirmation of sale on 30-4-1974 or from the date of issuance of sale certificate namely on 22-5-1974, it may be observed that Mr.Hafiz Abdul Baqi has referred to the cases of Qazi Abdul Ghani v. Lala Lal Chand AIR 1940 Lah. 230, Sham Singh and others v. Vir Bhan and others AIR 1942 Lah. 102 and Gauri v. Ude and others reported in AIR 1942 Lah.
153.
' In the first case a Division Bench of the Lahore High Court held that the right of auction-purchaser to possession accrues from the date of sale and he is entitled to mesne profit from the date of sale.
' In the second case a Full Bench of the Lahore High Court while construing the provisions of section 65 and Order XXI, rule 92 held that no doubt it is only when an order confirming the sale is passed, the sale becomes absolute, but as laid down in section 65 when a sale has become absolute the property is deemed to have vested in the purchaser from the time when the property was sold and not from the time when the sale became absolute. It was further held that any assertion to the property between the date of the sale and the date of confirmation becomes property to the purcahser.
' In the third case again a Full Bench of the Lahore High Court while construing provisions of Order XXI, rules 92, 89, 90, 91 and sections 60 and 65 inter alia held that section 65, C.P.C. implies that the real sale takes place when the property is auctioned and it is liable to be set aside if there are material irregularities of fraud in publishing and conducting the sale.
'I am inclined to hold that an auction-purchaser is entitled to claim rent or mesne profit from the date of the purchase and not from the date of confirmation of the sale or from the date of issuance of a gale certificate by the Court concerned. Confirmation of the sale relates back to the -date of the sale. An auction-purchaser is entitled not only to the rent or mesne profit but also to any accretion to the property which may accrue between the date of the sale and the date of the confirmation of the sale. In this view of the matter, in the instant case the respondent was entitled to claim rent from the appellant from 2-2-1974.
8. Reverting to the third contention of the learned counsel for the parties, it may be observed that the appellants in each of the Rent Case produced a rent receipt issued by the previous landlady. It will suffice to reproduce Exh.2/2 from Rent Case No.2366 of 1974, which reads as follows. {{TABLE}} "Bill No. 247 Karachi February, 1974.
To Abdul Rashid Haji Fida Hussain Mrs. Daimbai E. Lotia Rent for the Month of February, 1974 Building/Plot No.W.O.6/21 Description of tenament monthly Arrears Total Rent Rs. Rs.
Shop Office Flat No.11 Rs.75 Rs75 Plot Received Rupees Seventy five only Cash Cheque For Mrs. DAIMBAI E.LOTIA." {{TABLE}} ' The appellant (Rent Appeal No.173/81) had produced this document alongwith his affidavit in evidence which was exhibited as Exh.2/2 without any objection from the side of the respondent. The respondent in his cross-examination has stated inter alia as follows: "The name of the previous owner of the disputed premises was Lotia. I do not know that the rent for the month of February, 1974 was given to the previous landlady. I am not conversant with the signatures or handwriting of the previous landlady."
' The appellant was also questioned in the cross-examination by the Advocate for the respondent about the above receipt as follows: "It is incorrect to say that the receipt Annexure 8-1 is manufactured receipt."
9. Mr.Nizam Ahmad has vehemently urged that since the above receipt was exhibited without any objection from the side of the respondent, it is not open to the respondent to urge contrary to that before this Court. To reinforce the above submission he has referred to the case of Malik Din and another v. Muhammad Aslam PLD 1969 SC 136, the case of Muhammad Din v. Bashir Ahmad PLD 1977 Lah. 267 and the case of Sadequr Rehman Chowdaury v. Maulvi Abdul Bari and others PLD 1971 Dacca 120. In the first case the honourable Supreme Court was pleased to hold that objection regarding the defect, if any, in the method of proof of a document, cannot be raised at the appellate stage if the document has been admitted in the evidence without any objection in the trial Court. In the second case a learned Single Judge C of the Lahore High Court held that if the documents are admitted in evidence without any objection from the other side, such documents can be safely held to have been duly proved. In the last case Division Bench of the Dacca High Court held that if objection as to the mode of proving a document not raised before the trial Court, the same cannot be permitted to be raised at the appellate stage.
10. On the other hand Mr. Hafiz Abdul Baqi, learned counsel for the respondent has vehemently contended that exhibition of a document does not constitute the admission by the other side that the contents of the document are correct. It was further urged by him that since the factum of having received the rent for the month of February, 1974 was denied by the respondent on oath, it was incumbent upon the appellant to have proved the payment for the above month of February to the previous landlady by summoning her or someone on her behalf. Reliance was placed on the case of Allah Din v. Habib PLD 1982 SC 465, in which the honourable Supreme Court was pleased to hold that if a landlord appears in a Court and states on oath to have not received the rent for a certain period, he discharges his burden and the same shifts on the tenant to prove affirmatively that he had paid or tendered such rent.
11. It is true that the above document was exhibited without objection from the side of the respondent and that the respondent's attorney in his cross-examination had stated that he did not know, whether rent for the month of February, 1974 was paid by the appellant to the previous landlady and that he was not conversant with the signatures of the previous landlady but the fact remained that the appellant in the cross-examination was suggested that the above receipt was fabricated document and, therefore, it was incumbent upon him to have summoned the previous landlady or any one on her behalf to prove the above rent receipt. It may, again be observed that the respondent prior to the filing of his affidavit in evidence has not stated either in the rent application or in any of the aforesaid three notices sent by him to the appellants that the rent for the month of February, 1974 was not paid.
' It may also be stated that the respondent through his first notice dated 7-6-1974 Exh.2/7 did not ask any of the appellants to pay the rent but had informed them about the factum of the purchase of the property and had stated that he had also come to know that each of the appellants was in occupation of the flat mentioned in the notices. They were called upon to furnish the documents for showing their status over the said premises. The above notice was followed by notice dated 16- 7-1974 Exh.2/9.whereby respondent had informed the appellants that he had accepted the rent remitted by them through money orders under protest and that they were ill-advised to remit the rent instead of furnishing the information and the documents asked in his previous notice dated 7- 6-1974. He again asked the appellant to produce attested copy of tenancy agreement, photostat of the first and last rent receipts and the number of the rooms and the amenities in their possession. These two letters were replied to by the appellants through their letter dated 29-7-1974, Exh.2/12. it may be pertinent to reproduce sub-pares. (2) and (3) which reads as follows:- "You are hereby once again requested to kindly furnish us with the copies of Sale Certificate issued in your name as it has come to our knowledge that previous Landlord has objected to this transaction and has filed an appeal against you.
' With regards to the other points raised by you in your letters to all the aforesaid tenants, you are fully aware that you and we are the tenants of Lotia Building for the last one decade and are aware of every corner of the Building and have protected our tenancy rights jointly by managing the affairs of the Building specially when the previous Landlord failed to pay the Govt. Taxes due to this Building and final notices for its recovery were issued, water connection was disconnected. It was, we all including yourself got Stay-Order and paid the instalments on behalf of the Landlord to the extent of our monthly rent. Separate receipts were issued in favour of all the Tenants and thus we succeed in avoiding the consequences."
' This letter was followed by the respondent's notice dated 31-7-1974 under section 13-A of the late West Pakistan Rent Restriction Ordinance, 1959.
' It may also be pertinent to mention that the appellant had also produced a letter dated 29-1-1973 Exh.2/6 allegedly addressed by the previous landlady to the appellants asking them to pay the K.M.C. taxes amounting to Rs.9,029.68 upto 1971-72 and to adjust the same against the rent. It was aso stated by the previous landlady in her above letter that she would issue the receipt against the above payment.
' It is the case of the appellants that they had paid taxes to the K.M.C. and therefore the landlady had issued the above rent receipt for the month of February, 1974. However, it has been vehemently urged by M.Hafiz Abdul Baqi learned counsel for the respondent that factually the K.M.C. taxes for the period commencing from 1967 were paid by the respondent in pursuance of an order dated 13- 5-1978 passed by this Court in Suit No. 33 of 1972. It will suffice to observe that appellants were not parties to the above Suit No.300 of 1972, and therefore, the above order cannot be binding on them.
12. I am of the view that this is a fit case for remand. I am therefore, not inclined to deal with the contention of Mr.Baqi that the above rent receipt for the month of February, 1974 is bogus or that it is belied by other documents on record as he will be free to urge this point before the Rent Controller. Any observation by me on this aspect may prejudice either of the parties.
' In my view it is necessary to ascertain as a matter of fact, whether the appellants had paid the rent for the month of February, 1974 to the previous landlady and if it was paid what is the effect of the same on the present case. I am, therefore, inclined to remand the case in order to enable the parties to produce evidence on this aspect. The appeals are, therefore, allowed with no order as to costs and the cases are remanded to the Rent Controller with the direction to provide an opportunity to the parties to produce evidence on the above aspect and to decide the case afresh on the question whether a case of default has been made out by the respondent as to warrant the ejectment.