Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. S – 2625 of 2018

Petitioner : Faizan Shabbir, through

Mr. Naveed Ahmed Khan Advocate.

Respondent No.1 : Shaikh Abdul Wahab, through Mr. Muhammad Asif

Advocate holding brief for Ms. Kiran Channer

Advocate.

Date of hearing : 11.03.2019.

J U D G M E N T

NADEEM AKHTAR, J – Rent Case No.151/2014 filed by respondent No.1 against the petitioner for his eviction on the sole ground of default was dismissed by the learned Rent Controller vide judgment dated 22.12.2017, but First Rent Appeal No.24/2018 filed by respondent No.1 against dismissal of his above case was allowed vide impugned judgment dated 14.11.2018 by the learned appellate Court on the grounds of default as well as personal need. The above conflicting findings have been challenged by the petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2 Relevant facts of the case are that respondent No.1 filed the above rent case against the petitioner claiming that the latter was his tenant since last fifteen years in respect of premises bearing No.78, Bahadur Yar Jang Society, Block 7/8, Karachi, (‘demised premises’) ; various rent agreements were executed by the parties from time to time and the last agreement was executed by them on 01.08.2013 ; the rate of rent was Rs.45,000.00 per month payable by the petitioner on or before the 05^th day of every month ; the petitioner had agreed to pay monthly rent at the rate of Rs.50,000.00 with effect from February 2014 ; and, rent up to January 2014 was paid by the petitioner at the rate of Rs.45,000.00, but he committed default in payment of rent at the rate of Rs.50,000.00 with effect from February 2014. In the above background, eviction of the petitioner was sought by respondent No.1 only on the ground of default in payment of rent.

3. In his written statement, the allegation of default was specifically denied by the petitioner. It was pleaded by him that rent was sent by him to respondent No.1 in April 2014 through a money order which was returned with the remarks that respondent No.1 was out of country ; due to the above reason, he started depositing the rent in Court in MRC No.79/2014 ; and, he also filed an interpleader Suit against respondent No.1 and two others as some doubt had been created in his mind about the ownership and title of respondent No.1. It may be noted that no reason or basis whatsoever for the alleged doubt was disclosed by him in his written statement.

4. Despite the fact that eviction of the petitioner was sought by respondent No.1 only on the ground of default, and personal need was not even pleaded by the latter, the Rent Controller framed the main point for determination as “Whether the opponent is liable to be evicted from the demised premises on the grounds of default and personal need ?”. In his judgment dated 22.12.2017, it was observed by the Rent Controller that respondent No.1 had filed the eviction application initially on the ground of default, but subsequently in his affidavit-in-evidence he also introduced the ground of personal need. It may be observed that if this was the position, then the ground of personal need could not be added in the point for determination as the same is framed before evidence, and in the present case also the point for determination must have been framed immediately after filing of the petitioner’s written statement and prior to the filing of affidavit-in-evidence by respondent No.1. It may also be observed that in any event the ground of personal need could not be made as a point for determination / dispute between the parties as it was admittedly not pleaded by respondent No.1 in his eviction application. Nevertheless, findings on the ground of personal need were still given by the Rent Controller and the same was rejected by holding, inter alia, that respondent No.1 had said in his affidavit-in-evidence that he wanted to shift in the demised premises, but it had come on record that he was residing in Dubai ; his witness / attorney had also admitted this fact in his cross-examination and also that respondent No.1 had last visited Pakistan in the year 2015.

5. The ground of default in payment of rent alleged by respondent No.1 was also rejected by the Rent Controller by holding that he could not prove the alleged default as his witness / attorney had admitted in his cross-examination that rent for the disputed period was sent by the petitioner by money order which was returned as respondent No.1 was out of country, and then rent was deposited in Court by the petitioner. In view of his above findings, the eviction application filed by respondent No.1 was dismissed by the Rent Controller vide judgment dated 22.12.2017.

6. In the appeal filed by respondent No.1, findings of the Rent Controller were reversed by the learned appellate Court on both the grounds of default and personal need. Regarding the personal need, it was held by the appellate Court that it was clearly stated in the affidavit-in-evidence filed on behalf of respondent No.1 that demised premises were required by him for his personal use and he wanted to shift therein. On the question of default, it was held by the appellate Court that petitioner was indeed the tenant of respondent No.1 as the parties had executed several agreements ; the interpleader Suit filed by the petitioner was dismissed for non-prosecution ; after return of the money order, MRC was filed by the petitioner not only against respondent No.1, but also against two other persons without any justification ; and, rent for the months of February, March and April 2014 was deposited by him for the first time in MRC on 08.05.2014, and as such default committed by him stood established. In view of the above findings, the appeal filed by respondent No.1 was allowed by the learned appellate Court vide impugned judgment dated 14.11.2018 on the grounds of personal need as well as default.

7. I have already observed that point for determination in respect of the ground of personal need could not be framed nor could any findings be given in respect thereof by the learned Courts below as respondent No.1 had admittedly not pleaded such ground in his eviction application. Due to this reason, respondent No.1 was not entitled to raise such ground for the first time in his evidence as it is well-settled that evidence cannot be allowed or led beyond the pleadings and the case set up in the pleadings cannot be improved at the stage of evidence. Therefore, to this extent the impugned judgment of the learned appellate Court cannot be allowed to remain in the field.

8. Regarding default in payment of rent, it was alleged by respondent No.1 that petitioner had committed default with effect from February 2014. In paragraph 5 of his written statement, it was stated by the petitioner that a money order was sent by him to respondent No.1 in April 2014 which was returned with the remarks that respondent No.1 was out of country, whereafter he started depositing the rent in Court in MRC No.79/2014. The certified copy of the ledger of MRC No.79/2014 filed by the petitioner’s counsel along with his synopsis shows that first deposit of Rs.100,000.00 was made by the petitioner on 08.05.2014 on account of rent for two months. Thus, it was an admitted position that the first attempt to pay rent with effect from February 2014 was made by the petitioner through a money order in April 2014, and rent for the months of February and March 2014 was deposited by him in Court finally on 08.05.2014. It was also an admitted position that the rent agreement dated 01.08.2013 for eleven (11) months was subsisting at the time when the dispute had arisen and petitioner was not a statutory tenant. Vide Clause 1 of the said agreement, the parties had agreed that monthly rent shall be payable by the petitioner in advance on the 5^th day of each English calendar month. Clause (ii) of Sub-Section (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979, deals with the ground of default as a ground for ejectment by providing that such ground would be available if the tenant has failed to pay rent in respect of demised premises within fifteen (15) days after expiry of the period fixed by mutual agreement between the landlord and the tenant for payment of rent. Therefore, in order to save himself from committing default, the petitioner could have paid rent for the months of February and March 2014 latest by 20.02.2014 and 20.03.2014, respectively. However, rent for the said period was offered by him for the first time through money order admittedly in April 2014 which shows that by that time he had already committed default in payment of rent for the months of February and March 2014 ; and, by depositing rent in Court on 08.05.2014, he was in default not only for the months of February and March 2014, but also for the month of April 2014. My above view is fortified by Mirza Abdul Aziz Beg V/S Mushtaq Ahmed Sheikh, 1980 SCMR 834, Muhammad Baqar Qureshi V/S Mst. Razia Begum, 1981 SCMR 18, Shezan Limited V/S Abdul Ghaffar and others, 1992 SCMR 2400 and Abdul Ghafoor V/S Mst. Amtul Saeeda, 1999 SCMR 28.

9. The result of the above discussion is that learned Rent Controller had erred in law by giving findings on the ground of personal need, and his findings in relation to default were incorrect ; and, the learned appellate Court had also erred in law by allowing eviction application on the ground of personal need, however, its findings with regard to default do not require any interference by this Court. Accordingly, impugned judgment of the learned appellate Court is set aside to the extent of allowing the eviction application on the ground of personal need and the petition is partly allowed to this extent. However, the impugned judgment is upheld to the extent of ordering eviction of the petitioner on the ground of default, and resultantly the petition and pending stay application are dismissed with no order as to costs.

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J U D G E