1. This first rent appeal is directed against the judgment, dated 29-5-1998 passed by the learned VI Rent Controller, Karachi-East, dismissing Rent Case No.752 of 1993 filed by the present appellant/landlady (hereinafter referred as applicant) seeking ejectment of Mansoor Javeed and Shakeel Ahmad (hereinafter referred as opponents) from the first floor of the premises/building situated on Plot bearing No.430-C, Central Commercial Area, Allama Iqbal Road, PECHS, Karachi, (hereinafter referred as demised premises) on the ground of default and sub-letting.
2. The learned Rent Controller issued notices to the opponents who filed their joint written statement denying the ownership of the applicant/landlady in respect of the demised premises. However, they admitted that the demised premises was let out to opponent No.1 by the applicant as back as in 1974. It was denied that there was any default in payment of the rent. It was also denied that there was any sub-letting. So far the status of opponent No.2 is concerned it was stated that he is working as a manager of opponent No.1 who is running his business in the demised premises under the name and style of "Lion Communications". The rate of rent being Rs.400 per month was not disputed. However, it was further stated that a substantial amount as a "security deposit" was also paid to the applicant. It was also stated that the applicant herself stopped receiving rent hence the opponent No.1 started depositing the same in Court in M.R.C. Nos.2529 of 1978 and 1197 of 1980.
3. Haroon Siddiqui, attorney of the applicant, filed his affidavit-inevidence. He was partly cross- examined on 17-4-1998 and his further cross-examination was reserved for want of time and the case was adjourned to 25-4-1998. On that date the witness was present but he was not cross- examined further, as an application for adjournment filed by the learned counsel for the opponents was dismissed by the learned Rent Controller and side of the applicant was closed. It appears from the record that on 5-5-1998 an application was filed by the learned counsel for the opponents for recalling the order, dated 25-4-1998 and allow him to conclude the cross-examination of the witness, but the said application was also dismissed on 27-5-1998. Since the learned Rent Controller by his order, dated 16-5-1998 had already debarred the opponents from filing their affidavits-in-evidence, hence the learned Rent Controller decided to proceed further and framed the following points for determination:-- (1)Whether the opponents have committed wilful default in the payment of the rent since October, 1977?
4. (2)Whether the opponent No.1, has handed over the possession of the case premises to the opponent No.2, against the terms and conditions of the tenancy?
5. (3)Whether the application is not maintainable on the grounds that the same was not verified on oath by the applicant at the time of filing the same as required by the law?
6. (4)What should the order be?
7. Points Nos.1 to 3 were replied in negative and in the result application for ejectment was dismissed with no orders as to costs on 295-1998. It is against the said order that the applicant/landlady has filed this appeal.
8. I have heard the learned counsel for the parties and gone through the record of the rent case with their assistance.
9. The learned counsel for the applicant has contended that the learned Rent Controller has not only erred in law, but misread the evidence while deciding the issues of default and maintainability against the applicant/landlady, as there is clear default in payment/depositing of the rent by the opponent No. 1 . She has referred to the notices, dated 3-8-1993 (Exh.A/7) and 22-8-1993 (Exh.A./8).
10. She has also referred to the reply of the said notices which was sent on 8-9-1993 (Exh.A/9). In order to prove the default, the learned counsel for the applicant has placed reliance on the copies of the applications for withdrawal of the amount of rent deposited in M.R.C. No.1198 of 1980 (Exhs.A/4 to A/6) and pointed out that rent for various months was either deposited late or was not deposited at all. The learned counsel has particularly pointed out that rent for the months of July and August, 1987 was deposited on 1-8-1987, so also the rent for the months of January and February, 1988 was deposited on 3-2-1988 whereas according to the terms and conditions of the rent-deed, dated 1-1- 1974, rent for each month is payable in advance on first of every month. It has been further pointed out by the learned counsel for the applicant that rent for the months of December, 1990 and August, 1991 was not paid/deposited at all. It has been, therefore, vehemently urged that it is a clear case of misreading and non-reading of the evidence by the learned Rent Controller.
11. The learned counsel for the applicant has also stated that the finding of the learned Rent Controller that the rent agreement was not admissible in evidence because under section 5 of the Sindh Rented Premises Ordinance, 1979, (hereinafter called the Ordinance) it should have been attested by the Rent Controller or any Civil Judge or First Class Magistrate within whose jurisdiction the premises is situated is not based on proper appreciation of law because an agreement of rent executed before coming into force of the Ordinance does not require registration or attestation by the Rent Controller or a First Class Magistrate.
12. The learned counsel for the applicant has further argued that the learned Rent Controller has held the ejectment application to be not maintainable, because the rent application was not verified on oath before the Oath Commissioner or any other concerned authority, though it was a mere irregularity and could be cured at any stage by directing the applicant to get the verification attested.
13. The learned counsel for the applicant has also pointed out that according to Condition No.1 of the rent agreement, the monthly rent of the demised premises was payable in advance on the first day of every month and as such, any default in violation of the terms and conditions of the rent agreement shall make the opponent No.1 a wilful defaulter. Reliance has been placed on the case of Alif Din v. Khadim Hussain 1980 SCM R 767 and Muhammad Akbar v. Shaikh Nasiruddin 1991 M LD 1338.
14. The learned counsel for the opponent while refuting the arguments of the other side has stated that there is no default on the part of the opponent No.1 who is the tenant of demised premises and the burden of proof was upon the landlady/applicant to prove the specific default but there is nothing in the rent application to show the period of default. The learned counsel has further pointed out that in para. 3 of the notice, dated 3-8-1993 (Exh.A/7), no period of default is mentioned. The learned counsel in support of his contention has relied upon the case of Shafique Ahmad v. Abdul Rehman 1987 M LD 2243, wherein it has been held that delay of filing ejectment application not explained, landlord was not issuing any rent receipt and tenant not taking advantage of it, fact that tenant started depositing rent from March, 1978 clearly showed that it was from that month landlord refused to accept rent Tenant was, held, not defaulter in payment of rent in circumstances. The learned counsel for the opponents has also placed reliance upon Allauddin v. Ghazanfar Ali and another 1988 CLC 1343, wherein it has been held that an initial burden in respect of default in payment of rent is upon the landlord and he could discharge the same by making a statement on oath that he had not received rent of particular period and thereafter the burden would shift on tenant to prove tender or payment, which he could do by either producing rent receipts or producing counter-foils of money order or receipts for deposits of rent in miscellaneous rent case.
15. The learned counsel has further argued that the affidavit-in-evidence filed by attorney of the applicant is not in accordance with the requirements of Order XIX, Rule 3(1), C.P.C. and, as such, defective affidavit-inevidence without clearly stating how much of statements were true to the knowledge of deponent and how much statements were made on information or belief and without stating source of information or belief being in violation of legal requirements, would be meaningless, valueless and could be ignored.
16. In support of his contention the learned counsel has placed reliance on the case of Habib Bux v.
17. Zahoor-ul-Hasan 1986 CLC 1119 wherein it was held as under:-- "Order XIX, Rule, 3(1) Affidavit---Requirements of---Affidavits verified as true to knowledge and belief of deponent, without clearly stating how much of statements were true to knowledge of deponents and how much statements were made on information or belief, and without stating source of information or belief being in violation of legal requirements, held, would be meaningless, valueless and could be ignored."
18. The learned counsel has further pointed out that so far the point of sub-letting is concerned there is nothing on record to establish the same. Lastly, he argued that there is nothing wrong with the findings of the learned Rent Controller so far dismissing the ejectment application is concerned.
19. I have considered the arguments of both the learned counsel for the parties and gone through the case-law. What I find from the record of this case and the judgment passed by the learned Rent Controller, that he was perhaps in no haste to decide the rent case. At the very out set, I have to observe that there was no justification either in rejecting the adjournment application filed by the learned counsel for the applicant or the application for recalling the order debarring him from completing the cross-examination of the attorney of applicant or leading his evidence in rebuttal.
20. The view taken by the learned Rent Controller that the rent agreement between the applicant and opponent No.1 should have been registered or attested by the Rent Controller or a First Class Magistrate though it was executed much prior to the enforcement of the Ordinance, is not based on proper appreciation of law. The learned Rent Controller has, in fact, ignored proviso to section 5 of the Rent Ordinance, 1979 which reads as under:-- "Provided that nothing in this section shall affect in agreement between the landlord and tenant immediately before coming into force of this Ordinance."
21. Admittedly, the rent agreement between the parties is dated 1-1-1974 hence it did not require any attestation by the Rent Controller or the First Class Magistrate and, as such, it could not be ignored on this ground. In fact, it was to be looked into for the purpose of determining the obligations of the parties with regard to the terms of tenancy. Moreover, in para.7 of the application under section 15(2) of the Ordinance filed before the learned Rent Controller details of the default have been specifically and categorically mentioned in clauses (a) to (i). So also in the affidavit-in-evidence filed by the attorney of the applicant there is specific reference with regard to delay in depositing of the rent and a reference has been also made for the period during which no rent has been deposited by the opponent No.1 in the miscellaneous rent cases filed by him. However, I am leaving it for the learned Rent Controller to decide this issue afresh keeping in view the evidence to be adduced by the parties.
22. So far the strict compliance of Order XIX, Rule 3(1), C.P.C. is concerned, it is well-settled that Code of Civil Procedure is not applicable to the rent cases on all fours. Under section 19 of the Sindh Rented Premises Ordinance, the procedure to be followed by the Rent Controller has been laid down whereas in section 20 it has been categorically mentioned as to what powers of Civil Court shall be exercised by a Rent Controller. In this view of the matter it shall be too harsh to dismiss a rent case due to noncompliance of Order XIX, Rule 3, C.P.C. before the Rent Controller.
23. The finding of learned Rent Controller, that verification of the rent application was not duly attested hence the application is not maintainable according to law has also no force, because it is well- settled principle of law that such omission is a mere irregularity and can be cured at any stage by directing the party to get the formality observed. Reliance is placed on the case of Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan 1990 CLC 1473 wherein it has been held as under:-- "Order VI, Rule 15---Irregularity in signature or verification was a mere defect and same could be rectified at any stage of the proceeding."
24. A similar view was taken in the case of Muhammad Munshi and another v. Mst. Rakiya Bi 1990 CLC 301, which reads as under:-- "Order VI, Rules 14 and 15---Omission to sign and verify pleadings---Effect---Omission to sign and verify pleadings is only an irregularity curable at any stage of proceedings and not an illegality likely to result in dismissal of suit."
25. Under the circumstances, I am of the view that the impugned judgment passed by the learned Rent Controller is liable to be set aside. I also find that important legal aspects of the matter have not been attended by the learned Rent Controller while dismissing the ejectment application.
26. Moreover, I do not find any justification in the view taken by learned Rent Controller while debarring the opponents to lead their evidence and further declining to allow them to complete the cross- examination of the attorney of the applicant. I am, therefore, of the considered view that this case should be remanded to the learned Rent Controller to decide the case afresh after giving reasonable opportunity to the parties to produce and complete their evidence and a chance be given to the applicant to get attested the verification, if she so desires. Since this rent case pertains to the year 1993 hence the learned Rent Controller is directed to complete this exercise not later than six months from the receipt of this order/judgment by him. The office is directed to send back the R&P of the case forthwith to the Rent Controller. The learned counsel for the parties are advised to direct their clients to appear before the learned VI Rent Controller, Karachi-East, on 1-12-2000 positively as no Court motion/notices for their attendance shall be issued by the learned Rent Controller. The appeal is accordingly allowed and the case is remanded to the learned Rent Controller for disposal keeping in view the observations and directions made above. The parties to bear their own costs.