' Appellant M.Z. Haq has challenged the judgment dated 8-4-1990 delivered by learned V Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No256 of 1986, ordering his eviction from the premises in litigation.
2. Admittedly the appellant was tenant of Haji Ziaul Haq Khan predecessor of the respondents, in premises in litigation viz. Ground floor No,1 of Bungalow No,143/P, Block-2, P.E.C.H.S. Karachi with monthly rent at Rs,550. Haji Ziaul Haq Khan died on 12-11-1978 leaving behind the respondents as the legal heirs and they have stepped into his shoes as landlords of the appellant.
3. In that capacity the respondents filed Rent Case No,256/86 for eviction of the appellant from the premises in litigation on the ground of default in payment of rent, subletting, causing damage to the disputed premises and bona fide personal use. In respect of default it was averred that the appellant had not paid the rent since June 1977 although it was conceded that he had been depositing the monthly rent in Court of a Rent Controller in M.R.A. No, 3414 of 1979. It was however, alleged that instead of depositing rent for 94 months from June 1977 the appellant had deposited in Court the rent for 75 months and as such there was short deposit of Rs,10,450 which made the appellant defaulter in payment of rent. It was added that the appellant after subletting the premises to somebody had gone to America, where he was living permanently for preceding 5/6 years. The appellant was alleged to have damaged the premises in question and to have reduced materially the utility and value of the premises. On the point of personal requirement, it was averred that respondent No,1 Umatul Hamid Begum and her son Attaul Haq and latter's family wanted to live at Karachi, where they owned no house other than the disputed premises.
4. The rent case was contested by the appellant who in his written statement denied all the grounds taken for his eviction. Appellant challenged jurisdiction of the trial Court and maintainability of the rent case, which was alleged to be barred by res judicata. It was explained that the rent was being deposited in the Court to avoid the ground of default, which the respondents wanted to create. It was added that the respondents were permanently settled and domiciled in Quetta and they had not appointed any person at Karachi to act as rent collector and collect rent from their tenants. It was alleged that the respondents were not issuing rent receipts for creating false ground of default and for avoiding payment of Income Tax. Appellant claimed to have paid Rs,6,600 as security deposit to his landlord and the same was said to be adjustable towards the monthly rent. Appellant took plea that no notice envisaged by Section 18 of the Rent Ordinance was given to him by the respondents when they stepped into shoes of their predecessor on latter's death. Appellant denied having settled permanently in U.S.A. And referred to the affidavits sworn by him in Pakistan and filed in this case. It was added that the respondents owned other immovable properties in the vicinity, which they let out after filing this rent case. In respect of the plea of res judicata it was averred that earlier Rent Cases No,1081 of 1982, No,2759 of 1983 and No, 1922 of 1985 were filed against the appellant and the same were dismissed by the competent Courts. Eviction proceedings were alleged to have been filed mala fide as the respondents desired to sell the premises in litigation which had become valuable from commercial point of view.
5. After recording evidence of the parties, learned trial Court under the impugned judgment dated 8-4-1990 held that the appellant was duly served with the notice of change of ownership and he had committed wilful default in payment of rent. After holding so, the trial Court ordered eviction of the appellant within two months of the order. Other grounds urged by the respondents for eviction of the appellant, were not pressed before the trial Court and the same were answered in the negative.
6. Mr. Mohammad Iqbal Choudhry, learned counsel for the appellant argued that in his cross- examination Attaul Haq respondent No,4 and attorney of the respondent No,1 had denied the suggestion that the appellant had committed default in payment of rent. It was further argued that the rent was being deposited in M.R.A. No,3414/79 regularly and the same was being withdrawn from there by the respondents and as such there was no wilful default in payment of monthly rent.
It was next argued that the respondents in their notice copy Ex.A/5 dated 22-8-1981 addressed to the appellant had not alleged if the appellant had defaulted in payment of rent for any month although other allegations were levelled. It was lastly submitted that the ground of default put- forth by the respondents was mala fide. In support, learned counsel for the appellant cited the cases of (i) Burmah Oil Mills v. Amir Ali and other (1983 CLC 1990), (ii) Muhammad Younis v. Dr. S. Muzamil Ali (1981 CLC 327), (iii) Adam Ahm ad Thaqia v. Muhammad Hanif (1988 CLC 1703), (iv)
K.M.C. v. Mst. Gui Raza (1988 MLD 2840) and (v) Mst. Ghulam Sakina v. Khalid Bari (1984 CLC 71).
7. Mr. Shaikh Mohammad Usman, learned counsel for the respondents argued that the appellant had defaulted in payment of rent from June 1977 and that the rent for June 1977 to March, 1986 as deposited by the appellant was Rs,41,250 as against Rs,51,700 due from him. It was next argued that the appellant had nowhere pleaded if he had paid any amount as rent to Ziaul Haq. That in his written statement the appellant had not stated, as to, for what period he had deposited the rent in Court, or if two years' rent was paid in advance. Refuting the contention about deposit of security amount, learned counsel for the respondents referred to the receipt, Ex.0/1, which indicated that Rs,6,600 were paid on account of advance for one year from 1-6-1975. Reference was also made to the another receipt Ex.0/2 by which another amount of Rs,6,600 was paid on account of security deposit and it was argued that the appellant had not disclosed if he had paid rent for the period in question. Learned counsel for the respondent referred to cross-examination of the appellant, who admitted that he had said in M R C 3414/79 that he came to know in May, 1979 that his landlord had died in September, 1978. It was argued that the appellant had not shown if he had paid the rent to anybody after death of Zia-ul-Haq. The first deposit of Rs,4,950 was said to have been made on 23- 7-1979 but it was nowhere mentioned as to, for what period the said amount was deposited. In this way it was argued that the appellant had come with unclean hands and that it was his duty to find out the landlords and to pay them the rent. In support learned counsel for the respondent cited the cases of (a) Shaikh Mohammad Muneer v. Muhammad Ilyas (1986 CLC 93), (b) S.M. Bin Sultan v.
Muhammad Anis (1985 NLR 409), (c) Pervaiz Akhtar and another v. Additional District Judge Rawalpindi and others (P. L D 1990 SC 681) and (d) Dr. Ghulam Rasool v. Mohammad Idris Qureshi 1989 CLC 279.
8. It is worthy to note that in their rent application the respondents have not specified as to, for what particular months the appellant had failed to pay them the rent, although they said that since June, 1977 the appellant was defaulter and he did not pay the rent to the respondents directly but started depositing the rent in Miscellaneous Rent. Application No,3414/79. In this way the respondents alleged in their application that the appellant had deposited in Court Rs,41,250 as rent, although he was supposed to deposit Rs,51,700 as rent for 94 months from June, 1977. This was also stated by Atta-ul-Haq Khan in his affidavit in evidence filed on 7-10-1989. In his cross-examination A.H. Khan admitted that in the notice copy Ex.A/5 dated 22-8-1981 addressed to the appellant, it was not written that the appellant had committed any default. He also stated that the appellant was in the habit to pay the rent in lump sum and not month-wise and that in the rent agreement the date of payment of rent was not specified. A.H. Khan further admitted that he was residing at Quetta since 1947, and that he had neither demanded the rent from the appellant nor written to him that he was the collector of rent. A.H. Khan produced in his cross-examination receipts Ex.A/1 and A/2 both dated 18-5-1975 and admitted that they bore signatures of his father, who had rented out the premises to the appellant and who died on 12-11-1978. The receipt Ex.A/1 is about payment of advance rent of Rs,6,600 by the appellant to Mohammad Zia-ul-Haq, his landlord and predecessor of the respondents. The receipt Ex.A/2 shows that another amount of Rs,6,600 was paid by the appellant to Haji Zia-ul-Haq as security deposit refundable on vacation of the house.
Both these receipts stand admitted and proved. In their rent application, the respondents made no mention of the payments made to Haji Zia-ul-Haq by the appellant under the said receipts.
9. On death of Haji Ziaul Haq Khan on 12-11-1978 the disputed premises devolved upon the respondents, who were required to send intimation of such transfer in writing by registered post to the appellant, vide Section 18 of the Rent Ordinance, Para. 7 of the rent application and para. 8 of affidavit of A.H. Khan (respondent No,4) show that such notice Copy Ex. A/5 dated 22-8-1981 was addressed to the appellant. There is no proof on record to show that the appellant was served with the notice Copy Ex.A/5 under which the change of ownership of the disputed premises was said to have been intimated.
10. The receipt Copy Ex.O/1 shows that the appellant had paid rent for the period 1-6-1975 to 31-5- 1976 to Haji Ziaul Haq on 18-5-1975. Ziaul Haq died on 12-11-1978. Thereafter the appellant deposited in Court rent for 9 months amounting to Rs,49 50 on 23-7-1979 and Rs,6,600 on 14-6-1980, Rs,6600 on 31-5-1981, Rs,3,300 on 18-5-1982, Rs,1650 were deposited on each of the following dates, 29-11- 1982, 6-3-1983, 14-6-1983, 7-9-1983, 6-11-1983,10-12-1983, 13-3-1984, 15-7-1984, 16-10-1984, 16-1-1985, 14-3-1985, 12-9-1985, 26-3-1986, 27-8-1986, 16-10-1986 and 26-11-1986. These deposits are not disputed. None of the parties could make clear as to for what months said deposits were made.
Onus was on the respondents to establish on record as to for which exact months there was default in payment of rent. Such onus had not been discharged. Necessity arose for the appellant to deposit the rent in Court because the respondents are permanently domiciled and settled at Quetta as per para 4 of appellants affidavit which was not challenged during cross-examination of the appellant. In his cross-examination the appellant stated that he used to pay the rent whenever the same was demanded. That he used to pay rent to deceased Ziaul Haq in the way the latter wanted. That the deceased never issued a rent receipt.
11. The authorities cited on behalf of the respondents do not help them. In the case of Shaikh Mohammad Muneer (1986 C.L.C. 93) the view taken was that no kind of practice about payment of rent at irregular intervals even if evolved with mutual consent of parties, could override provisions of law. No such point was involved in the instant case. In the case of S.M. Bin Sultan (1985 MLD 409), it was held that practice to collect the rent in lump sum after intervals was contrary to the provisions of the Rent Ordinance and that even the plea that whereabout of the landlord were not known and hence the rent was paid after intervals, was not sustainable. In the instant case the appellant has not paid the rent after interval to the respondents but he has been depositing the Rent in Court. In the case of Pervaiz Akhter and another PLD 1990 SC 681, it was held that the word "default" connotes an element of negligence and failure of tenant to fulfil his obligation under law in payment of rent. In the instant case there was no negligence or failure of the appellant to fulfil his obligation. Had it been so, he would not have deposited rent in Court. In the case of Dr. Ghulam Rasool 1989 CLC 279 the view taken was that under Section 15 (2) (ii) of the Rent Ordinance the tenant would be defaulter if eviction is sought on ground of default of rent including time-barred rent. None of the authorities cited on behalf of the respondents helps the respondents.
12. The cases cited on behalf of the appellant and mentioned in para 6 require reference. In (i) above the view taken was that the parties cannot contract themselves out of the provisions of Section 13 (2) (i) of the W.P. Urban Rent Restriction Ordinance by establishing a different practice with regard to the mode of payment of rent. Similar view was expressed by the Supreme Court of Pakistan in the case of Abdul Rashid v. Saleh Mohammad (1980 SCMR 506). In (ii) above the legal provisions with regard to eviction of a tenant on ground of landlord's personal requirement were examined in depth. This ground was not urged by the respondents even in the trial Court. In (iii) above the landlord made vague allegations against the tenant about his default in payment of rent and the landlord failed to produce evidence to show that the tenant did not pay the rent regularly in the past and it was held that no default was committed in the circumstances. In (iv) above the tenant instead of depositing rent with the Rent Controller, who directed such deposit, deposited rent in a Rent Account from where the landlord continued to withdraw the rent and the view taken was that mistake on part of the tenant in depositing the rent in Rent Account and not with the Rent Controller, was only of technical nature. This authority is not relevant to this case. In
(v) above the view taken was that a tenant under both the Rent Ordinances was bound to pay rent for each month when due, except when there is an agreement between the parties to the contrary.
13. In the present case the difficulty with the appellant was that the respondents were living at Quetta and they had not appointed any rent collector to collect the rent monthly from the appellant. Hence although the appellant has not been regular in depositing the rent in Court every month, but no element of willful default appears from his conduct. Moreover, he is not proved to have been served with a notice under Section 18 of the Ordinance. In the circumstances the appellant is not proved to be a willful defaulter in payment of rent for purposes of Section 15 (2) (ii) of the Rent Ordinance. The other grounds were not pressed in the trial Court and they were decided against the respondents. Consequently this appeal stands accepted with no order as to costs, the impugned order is set aside the rent case stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.