IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.S-922 of 2012
Before: Mr. Justice Muhammad Shafi Siddiqui
Capri Autos, Motorcycle Dealers
versus
Dr. Masuma Hasan & others
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Dates of Hearing: |
08.11.2017, 24.11.2017, 04.12.2017, 30.1.2018, 26.2.2018, 26.3.2018, 23.4.2018 |
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Petitioner: |
Through Shaikh Muhammad Wasim Advocate
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Respondent: |
Through Shahan Karimi, Advocate |
J U D G M E N T
Muhammad Shafi Siddiqui, J: This petition is filed against the concurrent findings of two Courts below.
2. In brief the facts are that an application under section 15 of the Sindh Rented Premises Ordinance, 1979 was filed as Rent Case No.1154/2004 against one Capri Autos without impleading its proprietor as a party or through its proprietor. The rent case was contested on behalf of Capri Autos by one Abdul Rahim son of Hissamuddin who not only denied the relationship but submitted that the rent was paid to the rent collector Master Bashir ever-since their forefathers were inducted as a tenant. The application however neither contained the quantum of rent payable per month nor the period of default.
3. Mr. Fatehyab Ali husband of applicant filed affidavit-in-evidence. It is claimed in the application, in terms of para-2 that petitioner/ opponent was inducted in the premises by previous tenant whereas in the affidavit-in-evidence, he considered the opponent as a trespasser. The attorney of the applicant claimed that petitioner/opponent is not the tenant of the applicant nor the opponent ever remained the tenant of the predecessor of the applicant. He also denied this assertion that the opponent was inducted as a tenant by previous landlord of the property namely Abdul Rashid son of Feroz Khan who was the first cousin of the husband of applicant namely Fatehyab Ali Khan. In the affidavit-in-evidence, it is stated that as per knowledge of the applicant, the opponent was not the tenant of Abdul Rashid, the previous landlord of the property. The amount of “pugri” was also denied to have been paid by tenant’s father to previous landlord. Respondent claimed to have committed default for a period of 30 years and has failed to pay rent to the applicant.
4. Learned Counsel for the applicant submitted that the property was purchased by two persons namely Mst. Bismillah Begum wife of Muhammad Saeed on 27.2.1975 and the major portion of approximately 499 square yards was transferred in the name of applicant Mst. Masuma Hassan wife of Fatehyab Ali Khan and thus it is claimed that the payment of rent to one Abdul Rashid Khan does not concern with the applicant. It is further submitted that since Abdul Rashid also expired on 11.1.1998 therefore, it cannot be believed that the rent was paid to him up to December, 2004 or any of his rent collector. He urged that even subsequent to December, 2004 the respondent failed to pay the rent to the present applicant and thus he is liable to be ejected from the premises. The premises was also required for re-erecting of a building at site. The legal notice claimed to have been sent on 08.6.2004 by the advocate wherein it is claimed that the shop is illegally occupied by the opponent/petitioner who is only a trespasser. In the last para of the notice, the enquiry was also made from the occupant as to in which capacity he is occupying the premises, followed by another notice dated 13.8.2004. The Attorney was subjected to cross examination whereafter Abdul Rahim son of Hissamuddin, the opponent filed affidavit-in-evidence and was also subjected to cross examination.
5. Heard the learned Counsel and perused the material available on record.
The Rent Controller framed as many as four issues i.e.
1. Whether ejectment application was not maintainable?
2. Whether opponent is willful defaulter in payment of rent in respect of case premises?
3. Whether the opponent has sublet the case premises illegally and without consent of the landlady?
4. What should the order be?
6. Insofar as Issue No.1 is concerned, it is maintained by the respondent/applicant that petitioner was an illegal occupant of the premises. In the affidavit-in-evidence of Fatehyab Ali Khan, attorney of the respondent/applicant, it is specifically pleaded that the opponent (Capri Autos) was not the tenant of the applicant or that he was ever the tenant of the predecessor of the applicant. He denied suggestion of the opponent/petitioner that he was inducted as tenant by previous landlord namely Abdul Rasheed son of Feroz Khan who was in fact first cousin of the husband of the applicant/respondent namely Fatehyab Ali Khan who has filed affidavit-in-evidence on her behalf. He again pleaded that as per knowledge of applicant/respondent, the opponent was not tenant of Abdul Rasheed, the previous landlord of the property.
7. The answer to this issue No.1 was given in negative by the Rent Controller as it was framed in negative form. Perhaps the reasoning assigned at page 5 of the Rent Controller’s judgment is that respondent/ applicant had persistently pleaded that the respondent is a willful defaulter and that he has neither paid rent to the previous landlord nor to the present.
8. This perhaps is not the reasoning to be assigned as far as this issue is concerned. It is pleaded specifically in the application as well as in the affidavit-in-evidence that petitioner was neither a tenant of the previous landlord nor of the present. He was claimed to be a trespasser and illegal occupant. In case opponent/petitioner is being considered/ pleaded as a trespasser and illegal occupant how an application for eviction has been held to be maintainable, is not conceivable. In all fairness the answer to this issue should have been in affirmative purely on the basis of the pleadings of the landlady/respondent. However, the evidence recorded in the case revealed otherwise hence I would discuss the Issue No.2.
9. Insofar as Issue No.2 is concerned since enough evidence was recorded on the ground of default as well as on the facts that relates to the induction of the father of the petitioner/opponent as tenant it is being discussed here.
10. Surprisingly for the reason best known to the respondent/ landlady, the deed of transfer on the basis of which ownership is being claimed was never exhibited. Only seven documents were exhibited which include special Power of Attorney as Ex. A/1, Death certificate of Abdul Rasheed Khan as Ex. A/2, application for submission of proposed plan as Ex. A/3, Sketch of the building plan as Ex. A/4, extract from Form PT-1 as Ex.A/5 and the two legal notices as Ex. A/6 and A/7. This deed of transfer, which is somehow available on record of trial Court, is missing in these documents to have been exhibited.
11. In the cross-examination of the opponent/petitioner, it was suggested by applicant that the previous owner was Abdul Rasheed, however, the witness did not remember the date of his death. It was also suggested by respondent/applicant as third question that no notice ever served upon the opponent/petitioner about the change of ownership and that the two notices Ex. A/6 and A/7 were not the statutory notices required under section 18 of Sindh Rented Premises Ordinance, 1979.
12. Let us now peruse the two legal notices issued from the counsel on behalf of applicant/respondent. The contents of the legal notices without prejudice to the fact as to whether they were served, are reproduced as under:-
“Notice dated: June 8, 2004
We act for Dr. Masuma Hasan (our “Client”) who is the owner of Plot No.AM-360, Akbar Road, Karachi (the “property”).
You are in occupation of a shop in the Property, where you are trading under the name and style of Capri Autos. You are occupying the said shop illegally and are an encroacher.
On behalf of our Client, we require you to inform us within three (3) days of the date of this Legal Notice in what capacity you are in occupation of the shop.”
“Notice dated: August 13, 2004
We act for Dr. Masuma Hasan (our “Client”) who is the owner of Plot No.AM-360, Akbar Road, Karachi (the “property”).
You are in occupation of a shop in the Property, where you are trading under the name and style of Capri Autos. You are occupying the said shop illegally and are an encroacher.
Vide Legal Notice dated June 8, 2004, we had required you to inform us within three (3) days of the date thereof in what capacity you are in occupation of the shop. Our client has received no rent from you and you have not responded to our aforesaid Legal Notice. You are now required to vacate the premises in your possession within fifteen (15) days of the receipt by you of this Legal Notice. In the event of your failure to comply, we have instructions to institute appropriate legal proceedings.”
13. Even in these notices the applicant/respondent has considered the tenant/petitioner as trespasser/encroacher yet the application was maintained. It was inquired in terms of paragraph 3 of the first legal notice as to in which capacity the petitioner/opponent was occupying the shop in question. These notices are silent as far as “change of ownership” is concerned. The applicant/respondent is only claimed to be owner of the premises in question in the notice without reference of any date. These notices do not disclose the quantum of rent and the period of default.
14. Vide letter dated 14.04.2005 the petitioner through his advocate informed that they came to know about the ownership through publication in Nawa-e-Waqt dated 11.04.2005. It was informed through this letter that Abdul Rasheed was being paid rent through one agent and annual rent of the demised premises till December 2004 has been paid at the rate of Rs.200/- per month. It was further informed that after having information about ownership of applicant/respondent he (petitioner) desired to pay rent of the demised premises from January 2005 to December 2005 however when the attempt was made she (applicant/respondent) was not found at the address and hence a meeting was requested to be arranged.
15. In response to this letter, respondent through her counsel wrote/ sent a letter on 23.04.2005 in which she denied the fact that one Khalid Ahmed Khan has paid rent till December 2004. She has also refused any attempt to have been made for payment of rent from January 2005 to December 2005 from one Khalid Ahmed Khan, the agent of previous landlord.
16. As far as service of two notices Ex.A/6 and A/7 are concerned, the courier receipt Ex. PW-1/5-A, attached with notice dated 13.08.2004 does not pertain to any of the two notices as the sender was Sareshtedar Sr. Civil Judge & Rent Controller. These two legal notices shown to have been issued/sent by the advocate for applicant could not have been issued/sent by a Sr. Civil Judge & Rent Controller therefore it is a mala fide attempt to attach copy of such courier receipt to show that these notices were in fact served. I would conclude that these two notices were never served upon petitioner/opponent even if these notices could be deemed to be under section 18 of Sindh Rented Premises Ordinance, 1979.
17. In paragraph 5 of the affidavit-in-evidence of the petitioner/ opponent he stated that when he came to know about change of ownership through public notice, he offered the rent for the year 2005 personally which the applicant’s attorney refused to receive which was then tendered through money order which too was refused and thus the rent was deposited in MRC No.726 of 2005 and since then being deposited there.
18. The witness/petitioner in cross-examination also deposed that after demise of Abdul Rasheed he had been paying rent to Master Bashir since last 10 to 12 years as being representative of Abdul Rasheed Khan and had never been issued any rent receipt. He claimed to have paid rent up to March 2005 to the aforesaid representative. It was also suggested by the counsel for the applicant/respondent that Master Bashir had been visiting in the month of June of every year to collect rent to which he replied that he does not remember. He denied to have received notice of 08.06.2004 and 13.08.2004. It was again suggested that the opponent started depositing rent in Court in 2005 for 12 months. The proceedings about the ejectment application came to his knowledge through publication of notice dated 11.04.2005.
19. Prima facie there was no notice under section 18 of Sindh Rented Premises Ordinance, 1979 ever served upon petitioner/opponent. The eviction application was filed in November 2004 and perhaps through newspaper Nawa-e-Waqt dated 11.04.2005 petitioner came to know about the proceedings and the written statement was filed on 29.04.2005. It is mentioned at page 2 of the written statement bullet point 3 that petitioner/opponent immediately without wasting a day approached the applicant at the postal address but could not found her there and on 14.04.2005 the opponent sent a notice through his advocate as they disclosed their desire to pay rent of the demised premises directly and then sent money order on 21.04.2005. To confirm such assertion on the part of the petitioner, I have called R & P of MRC No.726 of 2005, which reveals that money order sent on 21.04.2005 was refused in terms of postal report dated 17.05.2005 and in these circumstances petitioner filed Misc. Rent Case No.726 of 2005 on 31.05.2005 and started depositing rent from 03.06.2005 in the said MRC w.e.f. January to December, 2005. On 25.04.2005 petitioner had also received a reply when he came to know that the applicant landlady is not willing to receive rent of demised premises from answering opponent/petitioner.
20. Neither quantum of rent nor period of default is alleged and/or mentioned in the eviction application. The eviction application has already been dismissed on all other grounds whereas only default was considered by two Courts below and found available for the eviction of the petitioner.
21. In the case of Hirjibhai Behrana Dar-E-Meher v. Messrs Bombay Steel Works reported in 2001 SCMR 1888 at page 1892 the Hon’ble Supreme Court has held as under:-
“A cursory glance at the language in which the above subsection is couched will show that it is free from any ambiguity and no scholarly interpretation is called for. It simply means that where a landlord refuses or avoids to receive due rent the same can be tendered by means of money order or in the alternate it can be deposited with the learned Rent Controller in whose domain of jurisdiction the demised property is located. The tendering of rent by means of money order would be in two eventualities i.e. "refusal" or "avoidance" which are not synonymous or interchangeable terms and have been used to cover two different situations. The word "refusal" indicates categoric denial or renouncement in an unambiguous manner by the landlord while the word "avoid" with reference to the context reflects the conduct where the landlord instead of a categoric denial or refusal prefers to remain silent, shows reluctance to receive the rent and becomes unapproachable by keeping himself away to get the issue prolonged "to create the grounds of default". In both the above referred two situations the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 can be invoked. The tendering of rent by means of money order can, be proved by producing its receipts, which has been done by the respondent. The only embargo, which can be placed in this particular sphere, is that the money order must be sent on a given and correct address. It was never the case of the appellant that money order has been sent on incorrect address. A careful analysis of the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 would reveal that it is not obligatory for the tenant to show and prove that how, when, why and under which circumstances the refusal was made by the landlord.”
22. Application for additional evidence at the appellate Court, dated 27.05.2011 was filed but no order apparently was passed except disposal of appeal.
23. In view of the above I am of the view that the default as claimed by the respondent is an engineered one, the landlady kept quiet until filing of eviction application. It took her almost 28 years to approach the Court as in between she never attempted to inform the opponent regarding change of ownership. The two notices were never proved to be served upon the petitioner. The quantum of rent was not disclosed nor the period of default. The tenant soon after acquiring knowledge of publication of notice dated 11.04.2005 has offered the rent and on its refusal and denial, deposited the rent in MRC No.726 of 2005 which is within a reasonable period of acquiring knowledge of the change of ownership.
24. The cumulative effect of the evidence that has come on record and discussed above is that since the default was an engineered one therefore the eviction application was liable to be rejected, even on the ground of default. Hence the petition is allowed and the order and judgment of the two Courts below are set aside, resultantly the eviction application is dismissed. The R & P be sent back to the respective Court.
Dated: 11.06.2018 Judge