IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.S-518 of 2013
Aamir Aslam Shaikh & others
Versus
Court of IVth Rent Controller Karachi (South) & others
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
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Date of Hearing: |
08.7.2013 |
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Petitioner: |
Through Mr. Mustafa Lakhani Advocate along with Mr. Wakeel Ahmed Qureshi Advocate |
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Respondent No.3: |
Through Mr. Muhammad Amin Advocate |
Muhammad Shafi Siddiqui, J.- This petition has arisen out of the rent proceedings initiated by respondent No.3/landlord before IV-Senior Civil Judge & Rent Controller Karachi South wherein Rent Case No.806 of 2012 under section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 was filed and involve a question as to whether the Rent Controller did not perform its function and exercise jurisdiction as required in terms of amended proviso of section 15(2)(ii) of the SRPO, 1979.
2. Brief facts of the case are that the respondent No.3 sent a notice under section 18 of Sindh Rented Premises Ordinance, 1979 for change of ownership to the petitioners on 14.02.2012. In the month of July, 2012 he filed ejectment applications on the ground of default only. It is pleaded in the rent applications that after receipt of notice under section 18 of Sindh Rented Premises Ordinance, 1979 and the letter of attorment, the petitioners did not give reply of the notice nor tendered the monthly rent to the applicant/respondent No.3 and thus rendered themselves liable for ejectment. The default period claimed in the rent application was w.e.f. March, 2012 to July, 2012 though the application itself was filed in the month of July, 2012. On receipt of notice of the rent case the petitioners filed application under the amended proviso of section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 one of which is available as Annexure P/5 (Page 49) as the rent w.e.f. March, 2012 was deposited before the learned Rent Controller South Karachi in MRCs. It is further urged that in terms of section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 since the period of default is not more than six months and no previous default was associated in the rent application, therefore, the petitioners were willing to pay and tender the rent to set the controversy at rest despite deposit of rent of subject period in above MRCs. The said application was contested by the respondent No.3. It appears that respondent No.3 has filed several rent cases for ejectment of the petitioners who have moved identical applications and accordingly the applications of the petitioners/tenants were dismissed by identical orders. These orders are available as Annexure P/9 to P/20, impugned herein.
3. Learned counsel for respondent No.3 did not file any objections or counter-affidavit to the petition and straightaway argued the petition.
4. It is argued by learned counsel for the petitioners that under Sindh Rented Premises Ordinance, 1979 all categories of default are subject to a common procedure available in terms of section 15(2)(ii). The amendment was brought about in Section 15 of Sindh Rented Premises Ordinance, 1979, in terms whereof a proviso was added in section 15(2)(ii) in 2001. Learned counsel for petitioner submitted that it was the duty of the learned Rent Controller to have disposed of the rent case which was filed on the sole ground of default pursuant to the application filed by petitioners. Since it is the first default as claimed by respondent No.3 against all the tenants/petitioners and have not made such default on any previous occasions and does not exceed six months, the Rent Controller ought to have directed the petitioners/tenants to pay the rent claimed from them on or before the specified date to be fixed by the learned Rent Controller and upon such deposit within the period prescribed therein the ejectment application ought to have been rejected/ disposed of in accordance with law.
5. Learned counsel for the petitioners submitted that the learned Rent Controller did not enjoy the privilege to have rejected the applications of the petitioners/tenants who intended to resolve the controversy in terms of the amended proviso. Thus the learned Rent Controller did not exercise the jurisdiction vested in it under the law. Learned counsel for the petitioners further argued that in terms of section 18 of Sindh Rented Premises Ordinance, 1979 only 30 days’ time was prescribed however all such defaults are subjected to section 15 of the SRPO, 1979. These defaults have to pass test and procedure under the provisions of section 15 of Sindh Rented Premises Ordinance, 1979 and not independently. Learned counsel for the petitioners has relied upon the following case law.
i) Nagina Silk Mill v. Income Tax Officer (PLD 1963 SC 322)
ii) Premier Cloth Mills v. Sales Tax Officer (1972 SCMR 257)
iii) Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119)
iv) Saeed Hassan v. Settlement Commissioner (1991 SCMR 1598)
v) Arz Muhammad Umrani v. Atta Muhammad (1993 SCMR 633)
vi) Province of Punjab v. Muhammad Bakhsh (2012 SCMR 664)
vii) Mobin Fatima v. Muhammad Yamin (PLD 2006 SC 214)
viii) Dilawar Jan v. Gul Rehman (PLD 2001 SC 149)
ix) Haji Abdul Ghani v. VIIth Additional District Judge (2008 CLC 1598)
6. On the other hand learned counsel for the respondent No.3 has argued that the amendment that was brought about in section 15 of Sindh Rented Premises Ordinance, 1979 was confined to the defaults committed in normal routine in terms of the agreement or in the absence of agreement and this proviso does not cover the default committed by the tenants after receipt of notice of change of ownership under section 18 of Sindh Rented Premises Ordinance, 1979. Learned counsel submitted that this petition is not maintainable under the law as it has been preferred against an interlocutory order and hence the petition does not lie. Learned counsel for respondent No.3 further argued that in terms of the reported judgment an interlocutory order cannot be assailed and amenable to writ jurisdiction. Mr. Muhammad Amin further argued that the controversy raised by the petitioners is not yet finalized and therefore for all intent and purposes it is only an interlocutory order. In support of his contentions he relied upon the following case law:-
i) Pakistan State Oil v. Muhammad Naqi (2001 SCMR 1140)
ii) Mst. Yasmeen Khan v. Abdul Qadir (2006 SCMR 1501)
iii) Mehmood Ahmed v. State Life Insurance Corp. (1998 CLC 1987)
iv) Syed Feroze Ali v. IVth Additional District & Sessions Judge (2006 CLC 1416)
v) Qamar Zaman v. IInd Additional District Judge (2008 CLC 431)
vi) Hameed v. Jitendra (2010 CLC 561) [Karachi]
vii) Muhammad Asif Rana v. Abdul Majeed Ali (2010 CLC 214)
viii) Mst. Raheela Yasmeen v. Muhammad Iqbal (2010 CLC 935)
ix) Mst. Aisha v. Mrs. Samar Afroze (2008 YLR 24)
x) Ali Brothers v. Naushaba Jabeen (2001 MLD 648)
xi) Muhammad Saeed Shah v. Philpana (2012 MLD 783)
xii) Syed Intesar Ali v. Ahmed Din Khan (PLD 1980 Lahore 471)
xiii) Syed Abid Ali v. Ghulam Moinuddin Khan (SBLR 2012 Sindh 394)
7. In rebuttal Mr. Lakhani submitted that the controversy as raised by the petitioners in the applications is finally disposed of when it is observed that the alleged default in payment of rent violates the provision of Section 18 of the SRPO, 1979 and that the amendment that was brought about in Section 15 of the SRPO, 1979 does not relate to default under Section 18 of the SRPO, 1979.
8. Mr. Lakhani argued that for all intent and purposes it has been observed by the learned Rent Controller that the rent is being offered without prejudice as the rent of the disputed period is offered after alleging the fact that they have paid the rent. Further it is also observed by the learned Rent Controller that since they are not admitting the liability, proviso of section 15 of Sindh Rented Premises Ordinance, 1979 would not be attracted.
9. I have heard the learned counsel and perused the record.
10. The spirit of the amendment brought about in section 15 of SRPO, 1979 by adding a proviso is to curtail the controversy between the landlord and the tenant in case the ejectment application is filed only on the ground of default and in case the rent is being offered with regard to a period of default not exceeding six months with no history of default. The wisdom behind this amendment is to resolve the controversy between the landlord and tenant only in case where the dispute pertains to a limited period of six months of default. No doubt the tenants/petitioners in this case have stated the fact that they have paid the rent of the claimed amount however the petitioners have made a categorical offer to pay the rent in terms of amended proviso by moving such application. It appears that the tenants/petitioners have stated that they have paid rent is perhaps because they have filed the Misc. Rent Cases in the month of April, 2012 after obtaining orders for the deposit of the rent in Court and the ejectment applications were filed in the month of July, 2012. It is in this view of the fact it is stated that the rent has been paid.
11. Argument of learned counsel for respondent No.3 to the effect that the defaults committed under section 18 of Sindh Rented Premises Ordinance, 1979 are not covered by the proviso of section 15 of SRPO, 1979 is without any wisdom or application of mind. All categories of defaults under Sindh Rented Premises Ordinance, 1979 are to be exercised and regulated under section 15(2)(ii). There is no separate mechanism provided to file an application for ejectment of the tenants who have committed default under section 18 of Sindh Rented Premises Ordinance, 1979 i.e. those tenants who have failed to pay the rent within 30 days after receipt of notice of change of ownership. All such defaults are to be regulated by a common procedure which procedure has now provided a special safeguard for the tenants to tender the rent if it does not exceed six months and had not accrued previously. The finding of the learned Rent Controller in this regard is in violation of the spirit of the law.
12. Apparently the learned Rent Controller had no jurisdiction to reject any such application which is covered by the conditions mentioned in the proviso unless the direction to deposit rent as claimed by respondent No.3 is not fulfilled. Admittedly it is a case where no previous defaults were alleged and it does not exceed more than six months. Thus tenants fulfilled the conditions laid down in the provision to section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 and as such it does not require any inquiry in the shape of evidence as observed by the learned Rent Controller and they ought to have been given a chance to deposit rent. The learned Rent Controller thus does not enjoy this jurisdiction to dismiss/reject the application without adherence and compliance of said proviso i.e. directing the petitioners/tenants to deposit the rents within specified period.
13. This also covers the office objections and submission of the learned Counsel for respondent No.3 regarding maintainability of this petition and it has been filed directly against the interlocutory order. I observe that the orders impugned here are in the nature of final adjudication as it is neither incidental nor collateral but an order which embraces the whole gamut of the dispute, besides being without mandate and jurisdiction. The petitioners’ rights have been finally decided and hence for all intent and purposes the petitioner cannot claim such relief from the Rent Controller in light of observation made in the impugned orders.
14. It has been observed by the Hon’ble Supreme Court in the case of Nagina Silk Mill v. The Income Tax Officer (PLD 1963 SC 322) that in cases of absence or excess of jurisdiction or where the impugned order suffers for illegality on the face of record a certiorari may be granted even though the right of statutory appeal has not been availed of. The relevant portion of the judgment from page No. 327 is reproduced as under:-
“----------.At the same time, it was held that in cases of absence of excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of.”
15. Similarly in case of Province of Punjab v. Muhammad Bakhsh (2012 SCMR 664) it has been observed by the Hon’ble Supreme Court that the very condition for the conferment of a jurisdiction on a Court of law is that it should decide every lis before it fairly, just and in accordance with law. Where a court or a Tribunal makes an error of law on which the decision of the case depends, it goes outside its jurisdiction. The Hon’ble Supreme Court in the aforesaid case has relied upon a number of judgments it passed and concluded that a decision given on wrong premises and erroneous assumption was rightly set aside.
16. In the case of Dilawar Jan (Supra) it has been held by the Hon’ble Supreme Court that the High Court in exercise of constitutional jurisdiction cannot sit as a Court of appeal where the order passed by Court below suffers from any jurisdictional defect or violates any provision of law, and if the error is so glaring and patent that the same may not be acceptable, invocation of constitutional jurisdiction is justified.
17. Similarly in case of Mobin Fatima (Supra) the Hon’ble Supreme Court has held that the High Court in exercise of its jurisdiction under article 199 of the Constitution, can interfere if wrong or illegal conclusions are drawn by the Court below, which are not based on facts found because each of such acts amounts to an error of law. Such error of law can always be corrected by High Court.
18. In case of Premier Cloth Mills (Supra) the Hon’ble Supreme Court held that in case impugned order suffers from illegality on face of record writ jurisdiction could be invoked and exercised despite availability of statutory right of appeal to a party.
19. In the case of Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24) it was observed by the Hon’ble Supreme Court that the scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted.
20. The core points in the instant litigation are:-
(i) as to whether the learned Rent Controller was justified in holding that since the amendment was brought in section 15(2)(ii) and not in section 18 of the SRPO, 1979 therefore, the default committed u/s 18 of the SRPO,1979 cannot be regulated by section 15 of SRPO, 1979 and
(ii) whether the rent controller was justified to have proceeded under the proviso of section 15 of Sindh Rented Premises Ordinance, 1979 by not directing the tenants/petitioners to deposit the rent as offered by them for the disposal as required by the legislature despite fulfillment of pre-condition of the Sindh Rented Premises Ordinance, 1979.
Both these questions were dealt with by the learned Rent Controller in the following manner:-
“Bare perusal of the above provision of laws shows when the ejectment application is filed on the sole ground of default and the tenant on the very first day of hearing admits his liability to pay the rent claimed from him and if the tenant has not made such default on any previous occasion and the default is not exceeding six months the rent controller shall direct the opponent to pay all the rent claimed from him on or before the date to be fixed and upon such payment he shall reject the ejectment application. But in instant case the opponent in his supporting affidavit has denied the default as alleged by the applicant and stated that the applicant has falsely alleged the default against him and he has paid the rent in MRC in favour of the applicant up to May 2012 as such there is no default, on the other hand the opponent appears to be ready to pay the rent to the applicant as claimed by him. Since the opponent is ready to pay the rent to the applicant without admitting his default/ liability as claimed by the applicant, therefore I am of the humble view that proviso of Section 15(2)(ii) of SRPO 1979 would not be attracted to the case of opponent and its benefit could not be available to him.
Moreover the applicant has alleged the default of payment of rent by the opponent on the ground of violating the provisions of section 18 of the SRPO 1979 it would be pertinent to reproduce section 18 of SRPO as under for ready reference.
“18. Change in ownership. Where the ownership of a premises in possession of tenant has been transferred by sale , gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15 if the rent due is paid within thirty days from the date when the intimation should in normal course have reached the tenant.”
Perusal of the above provision of law shows that in case of change of ownership the new landlord has to send notice of change of ownership of rented premises to the tenant and if he pays rent to the new landlord within 30 days from the date of receipt of such notice, no default would be deemed to be committed by the tenant. Admittedly the proviso has been inserted U/S 15(2)(ii) of the SRPO 1979 as mentioned etc enabling the tenant to pay the rent to the landlord even if he default does not exceeds 6 months yet no corresponding amendment has been made U/S 18 of SRPO 1979 therefore I am of the humble view that at this stage proviso of section 15(2)(ii) of the SRPO 1979 is not attracted to the case of opponent and in this regard the learned counsel for the applicant has rightly placed his reliance on case law reported as 2012 SBLR 394, 1996 MLD 114, NLR1990AC 545, 2004 YLR 34 and 2010 CLC 561. I have also gone through the case law relied upon by the learned counsel for the opponent but with great respect and regard the facts and circumstances of said cases are quite distinguishable from those of instant case. Moreover the opponent has disputed the rate of rent as claimed by the applicant in the instant application as well as in its supporting affidavit, therefore, I am of the considered view that the matter requires inquiry in shape of evidence, therefore for the foregoing reasons the instant application is hereby dismissed being without merits at this stage. Order accordingly”
21. In my view the jurisdiction vested in it was not exercised fairly justly and in fact the findings of the learned Rent Controller has completely shut down the plea raised by the petitioners/tenants wherein it is alleged by tenants that in terms of section 18 the default claimed is to be regulated by section 15 of Sindh Rented Premises Ordinance, 1979 and despite the fact that 30 days period was provided under section 18 to tender the rent, the tenants/petitioners can still avail the rights guaranteed to them in terms of proviso to section 15 of Sindh Rented Premises Ordinance, 1979, provided that they have fulfilled the conditions laid down therein. The judgments relied upon by learned counsel for respondent No.3 are not relevant to the present case. They relate to the issue of interlocutory orders regarding which no appeal lies, however, in the instant case issue is totally different wherein the learned Rent Controller has not performed and exercised the jurisdiction, as required.
22. In view of the above discussion the rent controller failed to exercise the jurisdiction vested in it under the law and the same is amenable to the writ jurisdiction.
23. Upshot of the above discussion is that the petition is allowed and the impugned orders are set aside and the Rent Controller shall re-hear the application of petitioners under section 15(2(ii) of Sindh Rented Premises Ordinance, 1979 in the light of the above observations.
24. Above are the reasons of short order dated 08.07.2013.
Dated: Judge