1. Through this appeal the appellant has challenged the judgment, dated 23-1-1994, passed by the learned IInd Rent Controller, Karachi (Central), in the proceedings of Rent Case No,94 of 1991 Ghulam Jilani Dosul v. Mst. Taj Ikram Samiullah, directing the appellant to hand over vacant possession of the case premises.
2. The brief facts of the case as submitted by the respondent in the eviction application, dated 7-2- 1991 are that, earlier the similar eviction application, dated 10-2-1990, being Rent Case No,104 of 1990 was filed by the respondent against the appellant for her eviction on the ground of default in payment of rent; but in view of the contentions raised in the appellant's written reply dated 14-3- 1990 the respondent had filed in those proceedings an application under section 151 with reference to Order VI, Rule 17, C.P.C. but the said Rent Case No,104 of 1990 was ultimately withdrawn with the permission of the Court to - file fresh eviction application and as such the said Rent Case No,104 of 1990 was dismissed as withdrawn. The submission of the respondent in the present Rent Case No,94 of 1991 filed through his attorney is that he is the exclusive owner of a double-storied building comprising of four independent Flats/Apartment, constructed on Plot No,D/48, Block No, "H", North Nazimabad, Karachi and the appellant since 10-6-1991 is his tenant in respect of a flat at the rental of Rs,1, 100 per month exclusive of gas, and electricity Consumption charges. It is also stated in the eviction application that the appellant without any lawful excuse did not pay or offer the monthly rent of the said flat with effect from 1-4-1982 to 31-1-1991 and as such has rendered herself liable for eviction from the case premises being a deliberate and chronic defaulter in payment of rent.
3. Hence the eviction of the appellant is sought from the case premises.
4. The appellant in her written reply, dated 16-3-1991 filed in the matter while raising the objection that the copy of General Power of Attorney granted by the respondent to his attorney, has not been produced in the matter and as such the authority of the Attorney, who filed eviction case on behalf of the respondent was denied. However, relationship of landlord and tenant between the parties and quantum of monthly rent was admitted but it was denied that the appellant either is chronic defaulter or has made she liable for eviction from the case premises. She stated .that rent for the months of December, 1981 and January to March, 1982 was paid and accepted by the respondent, however, when as per usual practice the rent for April, 1982 was sent to the respondent through pay order along with covering letter the same was refused to be accepted. Thereafter again rent for the months of April and May, 1982 was sent by pay order but that too was not received by the respondent and the said pay orders were returned to the appellant, even a personal attempt was made by the appellant and her husband to tender the rent to the rent collector of respondent but it was refused to be accepted on the pretext that owner/landlord had gone out of Pakistan. It is submitted that in the said circumstances the appellant was constrained to file Miscellaneous Rent Application No,2793 of 1982 seeking permission of the Court to deposit rent due from her in favor of the respondent. The appellant even got notice issued to the respondent which was duly replied and copy of such reply along with copies of the pay order etc., have been filed in the matter. It is, therefore, submitted that neither the appellant committed default in payment of rent nor she is liable to be evicted from the case premises and that the eviction application be dismissed with direction to the respondent to pay compensation ten times of the monthly rent as contemplated under section 17 of the Sindh Rented Premises Ordinance, 1979.
5. In support of his case the respondent's Attorney, Afasaruddin, filed his affidavit-in-evidence on 22- 10-1991 reiterating the statements; made in the eviction application and denying the adverse remarks of the appellant made in her written statement. In the said affidavit-in-evidence plea of personal requirement of the respondent for the case premises was also raised. The said witness was cross-examined by the learned Advocate for the appellant on 6-2-1992 and 29-2-1992.
6. In rebuttal the appellant on 20-4-1992 filed her affidavit-in-evidence, reiterating the statements made in her written statement and denying the adverse allegations made in the eviction application and evidence of witness of the respondent. She was cross-examined by the learned Advocate for respondent on 4-12-1993.
7. After recording the depositions of the parties and hearing the arguments of learned Advocate of the parties the learned Controller framed the following points for determination:--
(1) Whether the opponent is a chronic defaulter in payment of rent and committed default as alleged by the applicant?
(2) Whether the applicant requires the premises for his personal use?
(3) What should the order be?
8. Mr. Afsaruddin, the attorney and witness of respondent, whose affidavit-in-evidence was filed in the matter, was cross-examined on 6th and 29th February, 1992 when he admitted that earlier respondent had filed against the appellant Rent Case No,104 of 1994 alleging that the appellant had not paid rent since 1-4-1982 to 31-1-1991 but the said rent case was withdrawn and after five days of said withdrawal present case was filed. He has stated that he is not aware whether the respondent served upon the appellant, the legal notice dated 7-7-1982. He admitted that the appellant is the tenant of respondent since 1981. The witness denied that the appellant had sent pay order No,125307, dated 8-4-1982 of Rs,1,100. He also denied that the respondent refused or awarded to receive the pay orders, dated 8-4-1982, 4-5-1982 and 9-6-1982, respectively of Rs,1,100, Rs,2,200 and of Rs,3,300 filed with the written statement as Annexures 0/2, 0/5 and 0/8. He denied that in July, 1982 the respondent came to know that the appellant is depositing rent in Court in Miscellaneous Rent Case No,2793 of 1982. He denied that the appellant has not committed default in payment of rent. He also denied that either respondent did not raise the point of the personal need in respect of the case premises in the eviction application or that said plea has been raised by him in affidavit-in-evidence for the first time. He denied that the case has been filed against the appellant to harass and victimize her. Further cross of the applicant was reserved as the witness had undertaken to verify from the record if the payment of amount of Rs,85,800 deposited by the appellant in favour of respondent in Court, therefore, the respondent's witness was recalled and cross-examined by the learned Advocate for the appellant on 29-2-1992, when he deposed that it has been verified that the respondent has withdrawn up to date rent in the sum of Rs,92,400.
9. The appellant was cross-examined by learned Advocate for respondent on 4-12-1993 when she stated that she is the tenant of respondent in respect of the case premises, since 1-6-1981 at the monthly rent of Rs,1,100. She stated that she did not pay rent to the respondent directly but somebody else collected rent from her. She stated that at the time of commencement of tenancy she had paid six months' rent and thereafter she paid monthly rent to the Rent Collector up to March, 1982, where after the Rent Collector refused to accept the rent from April, 1982, therefore, she remitted rent by way of pay orders and ultimately she started depositing rent in Miscellaneous Rent Case No,2793 of 1982. She denied that she has not paid rent with effect from December, 1981 to March, 1992. She admitted to have sent the pay orders for Rs,1,100, Rs,2,200 and R.3,300 vide Annexures "0.2", "0.5" and "0.8", with covering letter i,e, Annexures "0.3", "0.6" and "0.9", to her written reply. She denied to have committed default in payment of rent. As to the question of personal requirement of the case premises of the respondent it appears from cross-examination of the appellant that the question was put to her that "on what basis do you say that case premises is not required by the respondent (applicant) and others respondents' answer is that "the house, on ground floor of the building was vacated about one year ago and the applicant has re- let the same; but I do not know the name of the tenant, another flat of the said building on the first floor is lying vacant for the last 3 months. The third flat on first floor is also lying duly locked, as such in view of the above stated facts I say that the premises in question is not required by the applicant for himself or for others".
10. After hearing the arguments of learned Advocate for the parties the learned Controller on 23-1- 1994 passed the impugned judgment whereby Issues Nos. I and 2 have been answered in affirmative and as a result thereof it has been held that the respondent is entitled for vacant possession of portion of the ground floor of Plot bearing No,D/48, Block No, "H", North Nazimabad, Karachi.
11. While discussing the issues, the learned Controller has ignored the fact that in respondent's legal notice dated 7-7-1982 (Annexure "0.10" to appellant's written reply filed in the Rent Case) it has been stated that "you have failed to pay and/or tender the rent from April, 1982 till today", which proves that appellant had paid rent up to 31-3-1982. The learned Controller has further erred in ignoring the fact that for the relevant period rent was tendered by three pay orders and ultimately the appellant was depositing rent in Miscellaneous Rent Case No,2793 of 1982 as abundant caution as the rent tendered through pay orders sent under Registered Post A.D. on 9-4-1982, 4-5-1982 and 9-6-1982 were returned undelivered on the pretext that the owner had gone out of Pakistan and as such the appellant had reasons to believe that the respondent with mala fide intention wanted to declare or term her as a defaulter in payment of rent. The learned Controller has further erred to ignore the fact that the opponent had objected to the new plea of personal bona fide requirement having been made for the first time only in the affidavit-in-evidence; which plea was not made in the ejectment application. The learned Controller in his impugned judgment has erroneously observed that the appellant remitted rent through money order to the respondent which proved that she has not paid the rent in time to the applicant (respondent) and to save herself from the ground of default money orders were Sent by her and also further to save herself from the said plea she started depositing rent in Court. He has further observed that the default is always a default although it should be a one day default, and that the contention of the opponent (appellant's) counsel that money order was returned refused on the ground that the owner is out of Pakistan is not liable for consideration on the legal plea that "debtor should find the creditor".
12. I have carefully perused the pleadings of the parties and their documents and the impugned judgment and cannot resist but to say that the learned Controller has not only misread the pleadings of the parties and misinterpreted their evidence and as such has illegally held that the respondent is entitled for vacant possession of the portion on the ground floor of Plot bearing No,D/48, Block, North Nazimabad, Karachi which is the case premises in occupation of the appellant. The learned Controller has grossly erred in observing that the appellant had sent money order to the respondent as the case of the appellant in paragraph No,9 of her written statement and paragraphs Nos.9 and 10 of her affidavit-in-evidence is that with effect from 1-4-1982 she tendered rent to the respondent through pay orders sent through Registered A.D. Post, as per Annexures "0/2" to "0/9" filed with her written reply. Again learned Controller has erred in holding that there is no explanation about payment of rent for the months of December, 1981, January, February, 1982 specially when as per Annexure "0/10" filed with the written reply, the learned advocate for respondent on 7-7-1982 in para. No,2 of his legal notice has admitted and informed the appellant "that you have failed to pay and/or tender the rent from April, 1982 till today". In the light of the said admission of the respondent there was no occasion or reason for learned Controller to hold that the opponent (appellant) has failed to give any explanation for the alleged non-payment for the said months. With regard to the personal requirement of respondent in respect of the case premises the learned Controller failed to appreciate that in the eviction application no such plea was raised and that the said ground was urged and raised only in the affidavit-in-evidence of the respondent's witness, without seeking any amendment in the pleadings. The learned Controller failed to appreciate that prayer of respondent in the eviction application was for eviction of appellant from the case premises on the ground of default only.
13. I am of the view that in dealing with the evidence on record the learned Controller should have been careful enough to see that only those facts are discussed in the judgment which can be found in the evidence on record and he should not have put down in the judgment anything that may not be traceable in the record. In the instant case, findings of the learned Controller are based on conjectures and surmises inasmuch as that he deduced that the appellant had failed to prove the sending of the money orders and their refusal by the respondent. In this case it is evident from the evidence of the appellant that she had nowhere stated to have sent any money order to the respondent. Her case was that she had sent the pay orders with covering letters and they were returned to her with the endorsement on the envelope of covering letter that the owner/landlord has gone abroad. As such after having failed to tender the rent in accordance with the practice she had deposited all the rent due by filing miscellaneous rent case in a competent Court. Again with regard to the alleged personal requirement of the respondent it is evident from the eviction application itself that such plea was not raised therein and it was only in the affidavit-inevidence of respondent's attorney and witness that such a claim was made. In such a situation the learned Controller ought to have refrained from entertaining and deciding the question of personal requirement of the respondent in respect of the case premises in his impugned judgment.
14. I am of the considered opinion that though all provisions of Code of Civil Procedure are not applicable to proceedings in applications for eviction under the Sindh Rented Premises Ordinance, 1979; but the principles which are the basis and foundation for administration of justice can be invoked to proceedings under the said Ordinance and as such had the respondent desired to add the ground of personal requirement to his eviction application then during the pendency of the case an application in the nature of Order 6, Rule 17 of Civil Procedure Code should have been filed and decided in the matter, which has not been done in the instant case.
15. The learned Advocate for the appellant in support of his contentions raised in the matter had cited the cases of Allah Ditta v. Mst. Rasoolan Bibi and 7 others 1976 SCMR 459 wherein it had been held that a judgment based on a question of fact which was not pleaded amounts to misreading of law and no relief can be granted in such situation. Another case cited by the learned Advocate for the appellant is the case of Mst. Jana Bai v. Mst. Gulshan and another 1984 CLC 1061, wherein it has been held that the decision of the case cannot be based on the ground outside the pleadings of the parties and a decision can be given only on the case pleaded in the matter. It has further been held that in such a situation the only course for a party to the case, seeking a relief not prayed for in the case itself is to seek an amendment of pleadings and without such amendment of the case the Court is not justified in granting a relief on a ground which is not made or pleaded in the plaint or application.
16. The learned Advocate for the respondent has failed to cite any judgment in support of his case or to rebut the above proposition of law.
17. In the light of the above discussion, the impugned judgment, dated 23-1-1994 passed by the learned Controller is set aside and this appeal is allowed, but with no order as to costs.