I propose to decide these twelve appeals by this single order as they arise out of stereotype orders dated 13th August, 1987 passed by the learned Ist Senior Civil Judge and Rent Controller, (South), Karachi in (i) R.C. No. 2096 of 1985 (First Rent Appeal No. 1042 of 1987, (ii) R.C.No. 2101 of 1985 (First Rent Appeal No. 1044 of 1987, (iii) R.C. No. 2102 of 1985 (First Rent Appeal No. 1045 of 1987), (iv) R.C.No. 2106 of 1985 (First Rent Appeal No. 1046 of 1987), (V) R.C.No. 2108 of 1985), (First Rent Appeal No. 1048 of 1985, (vi) R.C. No. 2109 of 1985 (First Rent Appeal No. 1049 of 1987, (vii) R.C. No. 2120 of 1985 (First Rent Appeal No. 1052 of 1987), (viii) R.C. No. 2116 of 1985 (First Rent Appeal No. 1051 of 1987), (ix) R.C.
No. 2121 of 1985 (First Rent Appeal No. 1053 of 1987. (x) R.C, No. 2122 of 1985, (First Rent Appeal No. 1054 of 1987), (xi) R.C. 2123 of 1985, First Rent Appeal No. 1055 of 1987) and (xii) R.C. No. 2100 of 1985, (First Rent Appeal No. 1073 of 1987) whereby the defence of the appellants in each case has been struck off under section 16(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") for non-compliance of orders under section 16(1) ibid, passed on 8th November, 1986.
2. The respondent No. 2, who appeared for himself as well as on behalf of respondent No. 1 as her/his attorney, raised a preliminary objection that all these appeals are barred by limitation and hence are liable to be dismissed as such. This objection was raised, it may be noted, after the conclusion of the arguments addressed by the learned counsel for the appellants and the respondent No. 2, on the merits of the case. Nevertheless I would like to deal with and dispose it oft first. Upon examination of the facts and the relevant provisions of law as well as the reported judgment, discussed below, I have reached the conclusion that this preliminary objection is not well founded and deserves to be repelled for the following reasons.
3. The impugned order in each case was admittedly, passed on 13th August, 1987. The relevant particulars as recorded in the certified copies of the impugned orders filed with the Memorandum of Appeals are as follows:-- Date of impugned order 15-5-1987 Date of Application for Copy17-8-1987 Date of Cost. Estimated on25-8-1987 Cost deposit on 25-9-1987 Copy ready on 12-9-1987 Stamps supplied on 17-9-1987 Copy certified on 19-9-1987 Copy delivered on 4-10-1987
4. All the appeals have been presented on 1-11-1987. The respondent No. 2 contended that the time for filing appeal had, in each case started running from the date when the copy was made ready i.e. From 12-9-1987 or at best from 19-9-1987 when it had been certified to be true copy. The last date for filing the appeals, according to him, was thus either 12-10-1987 or 19-10-1987, whereas the appeals having been filed on 1-11-1987 are time-barred by 20/13 days. The learned counsel for the appellants, on the, other hand submitted that since the copies of the impugned orders were delivered on 4-10-1987, hence the time for filing the appeals was available upto 3-11-1987, whereas they having been filed on 1-11-1987 are well within time. In support of his contention the learned counsel for the appellants cited Mst. Safdari Begum and others v. Anwar A.I Jabrezi 1985 CLC 836.
5. I Find that the facts of the case in hand are almost identical with the facts of the above-cited authority, wherein my learned brother Saleem Akhtar, J., after referring to the provisions of Rule 331 of Sind Civil Court Rules and certain reported decisions, had held as follows:- "The settled law is that the office has to notify the party about the date when copy would be ready.
If such notice is not given then time requisite for obtaining the copy shall start when the application for copy was made and end when the copy was delivered. A party cannot be penalised for the negligence or non-performance of duty by the Court Officers. As no notice intimating the date when copy would have been ready was given, the time from 11-6-1983 to 13-9-1983 will be excluded for computing the' period of thirty days."
6. The facts of the above-reported case were that the impugned order was passed on 9-6-1983, the application for certified copy was made on 11-6-1983, cost was estimated and paid on 9-8- 1983, the copy was made ready on 11-8-1983 stamp was supplied on 13-9-1983 and on that very date the copy was delivered. It was conceded by the learned counsel for the respondent in that case before this Court that there was no practice to issue notice or affix it on the notice board intimating the date of delivery whereas, it was not stated, "the practice is that when cost is deposited the copyist informs the appellant about the date of delivery." The respondent No. 2 could not satisfy me that the requirement of Rule 331 of the Sind Civil Court Rules had been complied with in the instant case. I am respectfully in complete agreement with the views expressed in the above---cited judgment by the learned Single Judge which, in turn, is based on several authorities referred to therein. It having been proved that no intimation about the copy being ready for delivery was posted on the notice board of the Record---Keepers' Office: hence the "time requisite" for obtaining the certified copy of the orders, which is to be excluded under section 12 of the Limitation Act, stood extended upto 4th October, 1987. Hence even after deducting one day spent in between the date of delivery of order and making the application for copy thereof, the appeal is in time. The preliminary objection raised by the respondent is of force.
7. The relevant facts giving rise to these appeals are these. On 29-11-1985 the respondents filed separate applications under section 15 of the Ordinance eviction of the appellant in each case on the grounds of (i) default in payment of monthly rent for a period of over three months at the given rate in each case, being latest assessment of the Excise and Taxation Department and K.M.C. And
(ii) subletting.
8. All the applications have been signed by the respondent No. 2. He is himself applicant in Rent Case No. 2120 of 1987. The rest of the applications have been signed by him for self and as attorney of the premises in question. The contents of all the ejectment applications arc similar save in respect of the default. No documents were filed alongwith the applications except a copy of the power of attorney which too was not filed in R.C. No. 2109 of 1985, R.C. No. 2121 of 1985, R.C. No. 2123 of 1985 and R.C. No. 2100 of 1985. I deem it also props: to reproduce hereunder, by way pf example, the first four paragraphs from R . C No. 2096 of 1985. They are as follows:- "(1) The property known as Raja Mansion was purchased by the applicant No. 2 from Settlement Department. Karachi, in 1959. He associated the applicant No. 1 and gave her Flat No. 48, Block No. 2, on K.M.C. Survey No. R.C.8/7/1-A, Raja Mansion, Yaqoob Khan Road, Karachi. The applicant No. 1 appointed the applicant No. 2 as her Rent Collector and Attorney. So payment of rent to either of the two Applicants was full discharge of liability of the tenant.
(2) The above flat is occupied by the opponent and he is tenant of the applicants, at Rs. 50 per month being latest assessm ent of the Excise and Taxation Deptt., and K.M.C.
(3) The opponent has paid rent up to July 1960 and thereafter defaulted despite repeated demands, the opponent has failed to pay rent, for a period over 3 months, hence liable to ejectment.
(4) The opponent has sublet the premises without permission and knowledge of the applicants."
(N.B.--underlined by me for emphasis)
9. The appellants filed written statements denying, inter alia, the relationship of landlord and tenant between the parties and also specifically pleading that the respondents had failed to file any document in support of their claim and as such further comments were reserved till the document with regard to the purchase of Raja Mansion from Settlement Department and the documents with regard to the Association of the respondent No. 2 and the respondent No. 1 were properly filed in the Court. It was also stated in the written statement that the respondent No. 1, in each case had neither given any power of attorney in favour of the respondent No. 2 nor he/she is the owner or purchaser of the premises in question and as such the application was not maintainable. The respondent No. 2 was stated to have no authority to associate with any other person and that the respondent No. 2 had not given offer for Raja Mansion in his personal capacity but as Attorney for Claimants." The sale of Raja Mansion as made by the Settlement Authorities was, therefore, void.
10. Later on, the respondent No. 2 filed application under Section 16(1) of the Ordinance praying that the appellant in each case may be directed to deposit the arrears as well as the current rent for future months in Court. The appellants filed objections to these applications separately in their respective cases, wherein again the existence of relationship of landlord and tenant between the parties was denied. It was further averred that the respondents were not entitled to recover the rent as they have no right, title or interest in the suit property which was still an evacuee property. The rate of rent claimed was also not admitted as no latest K.M.C. Assessment as per law was available.
11. The learned Rent Controller vide his order dated 8th November, 1986 allowed the said application and directed the appellants to deposit the monthly rent at the claimed rate for three years prior to the filing of the rent cases i.e. 29--10-1985. The appellants were also directed to deposit in Court the monthly rent at the rate claimed in each case, for each calendar month on or before 10th of each month be deposited within a period of 2 months from 8-11-1986 and the rent of November, 1986 was to be paid before 10th December, 1986.
12. On 4-2-1987 the appellants filed applications under section 16 of the Ordinance read with Section 12(2) and section 151, C.P.C. Stating, inter alia, that the respondents have never paid Property Tax at any time and had succeeded to get the order passed for depositing the arrears of rent, by misrepresentation and fraud and that the said tax was regularly paid by the appellants every year. This details thereof could not, however, be placed before the Court as no rent account was called for before passing the rent order for depositing the arrears of rent, it was further stated that the appellants had complied with the rent payment orders in respect of current monthly rent, without prejudice to the legal objection. It was, therefore, prayed that fresh orders with regard to depositing the arrears of rent' after the adjustment of the property tax paid in respect of the Flat in question may be passed. The respondents filed objections to the said applications. The learned Rent Controller vide his order dated 15th August, 1987 dismissed the said applications. The respondent No. 2 had, in the meanwhile, made applications under section 16(2) of the Ordinance for striking off the defence of the appellants for non-compliance of the orders for depositing the arrears of rent dated 8-11--1986. The appellants filed objections to these applications. The learned Rent Controller, however, vide his impugned order dated 15th August, 1987 has struck off the defence of the appellants and ordered them to vacate the premises in question within two months from the date of the order Hence these appeals.
13. I have heard Mr. Niaz Hussain G. Kichi, the learned counsel for the appellants as well as Mr. M.M.KA. Zai, the respondent No. 2 and with their assistance have also perused the relevant record of each case.
14. It may at the outset be stated that in view of the admitted fact that the appellants had committed default in payment of the arrears of rent pursuant to the orders of the learned Rent Controller under section 16(1) of the Ordinance they cannot be heard in respect of the defence set up by them in their respective written statements. The orders for striking off the defence in this view of the matter cannot be assailed in the context of the defence taken by the appellants.
Nevertheless, in these (sic) taken by the appellants are, as rightly pleaded by Mr. Niaz Hussain G.
Kichi, entitled to assail the tentative rent orders passed under section 16(1) ibid for the non- compliance whereof their defence has been struck off. The learned Rent Controller, as is evident from his order dated 8-11-1986 passed on the applications under section 16(1) of the Ordinance, did not seem to have made a proper inquiry into the preliminary issue about the absence of the relationship of landlord and tenant between the parties as raised by the appellant; in the written statements filed on their behalf. He has based his decision in this behalf entirely on the judgment of the Hon'ble Supreme Court in `M.M.K.A. Zai v. Settlement Commissioner, Karachi 1982 SCM R 788' with the observation that "the respondents have been held to be the owners of the disputed flats of property on KMC. Survey No. R.C. 8/7/1-A, Raja Mansion, Yaqoob Khan. Road, Karachi". He did not give any chance to the appellants to adduce any evidence nor did he seem to have read the above-noted judgment of the Hon'ble Supreme Court carefully inasmuch as the issue for determination before the Hon'ble Supreme Court was not the validity and legality of the transfer of the property bearing Municipal No. R.C.7/1-A in favour of the respondents nor has the Hon'ble Supreme Court held therein that the said property had been legally and properly transferred to the respondents. The issue directly and substantially involved in the above case before the Hon'ble Supreme Court was whether the fifth unit bearing No. R.C.8/7/2/1/1, was wrongly included in the P.T.O. Dated the 23rd of March, 1970. He also omitted to take note of the fact that the applications for ejectment of the appellants were not presented on behalf of all the transferees of the property in question, who had been shown as associates vide: Annexure 2 P.T.O. No. 50 (D.S.C.-Auction)/59 (Ex. A/2). In so far as the Agreement of Association dated 20-9-1960 (Ex. A/3) is concerned it does not seem to have been approved by the Settlement Authorities. The applications for ejectment were presented on behalf of individuals as transferees of a particular teat under the signatures of the respondent No. 2 as attorney without even placing on record the certified copy of the power of attorney. When an objection was taken on behalf of the appellants about the non-existence of relationship of landlord and tenant between them and the respondents, it was incumbent upon the learned Rent Controller first to hold summary inquiry and record a finding on this aspect of the matter as the very existence of this jurisdiction to entertain they applications and adjudicate upon the matter depended upon the learned Rent Controller first to hold summary inquiry and record a finding on this aspect of the matter as the very existence of this jurisdiction to entertain the applications and adjudicate upon the matter depended upon the determination of this vital issue.
The manner m which the learned Rent Controller has dealt with this aspect of the matter vide his order dated 8th November, 1986, is, in my opinion, wholly inapt in the facts and circumstance of this case. It seems appropriate at this stage to reproduce hereunder the principle laid down by Muhammad Afzal Zullah, J. Of Hon'ble Supreme Court to the case of Rehmatullah v. A.I Muhammad and another 1983 SCM R 1064. At page 1079 of the report, it is held as under:- "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a civil Court, first and then again approach the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable" doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
15. It is further noted that the respondent did not produce even the original P.T.D. Dated 21-3-1960 before the learned Rent Controller as there is nothing on record of any Rent Case to show that the original documents of title were shown to the learned Rent Controller, although it was got to be amended pursuant to the Order of the learned Settlement Commission dated 25-2-1974, which has been upheld by the Hon'ble Supreme Court vide 1982 SCM R 788.
16. In so far as the rate of rent claimed is concerned, it is pertinent to note that no document was produced by the respondents and exists on record on the basis of which it could be held that the rate of monthly rent payable by the appellants in respect of their respective tenements in their occupation. The learned Rent Controller also did not ask the parties to file the statement of accounts before directing the appellants to deposit the arrears of rent and the future monthly rent in Court. In this view of the matter I am clearly of the opinion that the order of the learned Rent Controller dated 8-11-1986, passed under Section 16(1) of the Ordinance separately in each Rent Case, cannot be sustained. I would, therefore, set the said orders aside and remit the cases to the learned Rent Controller for fresh orders under section 16(1) in accordance with law and in the fight of judgment of the Hon'ble Supreme Court in the case of "Rehmatullah" (supra), as well as by keeping in view the observations made herein. The learned Rent Controller may also allow the parties to adduce C evidence, if he so deems necessary for proper adjudication of the issue.
Consequently, the orders passed under Section 16(2) of the Ordinance striking off the defence of the appellant on account of the appellant's failure to comply with the orders dated 8-11-1986 passed under section 16(1) of the Ordinance cannot also be upheld. They are, therefore, also set aside.
18. In the result, all the above-noted appeals are allowed as indicated above. The parties are, however, left to bear their own costs.
19. Before parting with the case, I think it proper for the final adjudication of the matter by the learned Rent Controller to direct him further to look into validity of the power of attorney, which has been executed jointly by seven different alleged owners of different premises, in favour of respondent No. 2, without even disclosing the particulars of the property in respect of which the power has been given. Moreover, the learned Rent Controller should also examine the maintainability of the Ejectment Applications registered as R.C. No. 2108 of 1985, R.C. 2109 of 1985, R.C. No. 2121 of 1985, R.C. 2123 of 1985 and R.C. No. 2100 of 1985 as the certified copy of power of attorney, if any, executed by the said applicant in favour of the respondent No. 2, who has made and signed the applications, has not been filed in the said cases. So also he should look into the validity or otherwise of the Agreement of Association dated 20-9-1960 (Ex. A/3) produced by the respondent No. 1 as a document of title of their respective premises. Besides, in the facts and circumstances of these cases it n would, I think, be more conducive to justice and fair-play if the facts of each case separately instead of disposing of all the Ejectment Applications through an stereotype orders, like the present impugned orders.