2014 C L C 1463
[Balochistan]
Before Muhammad Ejaz Swati, J
ABDULLAH and another ----Appellants
Versus
Mst. FARZANA----Respondent
First Appeal from Order No.2 of 2011, decided on 13th June, 2014.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13---Ejectment of tenant --- Wilful default--- Proof --- Rent Controller allowed ejectment
application and passed eviction order against tenant on the ground of wilful default in payment
of monthly rent ---Validity ---Tenant through verbal evidence asserted that rent from March, 2011
to February, 2012 was paid through valid receipt issued by landlady but no such receipt was
produced during evidence or recording statement of tenant nor put the same to landlady during
her statement or cr oss-examination ---Mere appending a purported receipt along with memo of
appeal could not be termed as evidence unless proved in accordance with law ---Accepting of rent
by landlady after 3 to 6 months/periodically from tenant and receipts annexed with appea l
showing lump sum payment would lead to presumption that practice of receiving periodic rent
was adopted by landlord was not tenable ---Tenant was under legal obligation to pay monthly rent
to landlady and if tenant had adopted practice to pay rent at irre gular intervals, he made himself
liable to eviction ---Tenants were under legal obligation to deposit rent within 60 days after it had
become due but he failed to do so and committed wilful default ---High Court declined to
interfere in eviction order passed by Rene Controller ---Appeal was dismissed in circumstances.
Hazrat Umar v. Zafar Majeed and 13 others PLD 1991 SC 138; Muhammad Siddique and
another v. Dr. Edgar Nathenial, 1997 CLC 2041; Mst. Hajiani Aisha and others v. Abdul
Waheed, PLD 1989 SC 489 and Malka Begum v. Mehr Ali Hashmi, 1984 SCMR 755 rel.
Ghulam Mustafa Buzdar for Appellants.
Respondent proceeded Ex parte.
Date of hearing: 6th June, 2014.
JUDGMENT/ORDER
MUHAMMAD EJAZ SWATI, J. --- This First Appeal is directed against the order of
Civil Judge -I/Rent Controller, Quetta (hereinafter referred as to "the trial Court") dated 16th
December, 2013 (hereinafter referred as to "the impugned order") whereby, the eviction
application filed by the respondent was accepted and the appella nts were directed to hand over
the vacant possession of the Cabin/Khoka to the respondent.
2. The facts of the case are that, respondent is landlord of the Cabin/Khoka No.1, situated
adjacent/next to Bismillah Printing Press and Karim Glass Mart, both co nstructed on the property
bearing Khewat No.104, Khatooni No.124, Mohal and Mouza Ward No.10, Tappa Urban No.1,
Tehsil and District Quetta and Mutation Entry No.484, in the name of respondent (applicant) and
appellants (respondents) are her tenant of the s ame at monthly rent of Rs.2500 per month, over
the period of 20 years. The eviction of appellants was sought on the ground of wilful default in
the payment of rent since January, 2012. The appellants by way of filing rejoinder to the eviction
application c ontroverted the instance of the respondent and contended that they had paid rent
from March, 2011 to February, 2012, through duly issued receipt by the landlord and thereafter
respondent refused to receive rent, however, appellants admitted that if there i s any default, they
admit the same as first default.
3. The divergent pleadings resulted following issues: ---
"1. Whether petition of the petitioner is not maintainable in view of legal objection "B"
raised by respondents? P.L.O "B" That the replying r espondents are regularly paying the
monthly rent to the applicant. The replying respondents have paid rent from the month of March,
2011 to February, 2012, and in this respect the applicant has issued a receipt to the replying
respondents, thereafter the a pplicant refused to receive the rent amount from the replying
respondents with mala fide intention, hence the application under reply is liable to be dismissed."
2. Whether the respondents/tenants are bad paymaster and has failed to make payment of
monthly rent since January, 2012?
3. Whether the applicant is entitled for relief claimed for?
4. Relief?
4. The respondent produced A.W.- 1 Nasir Khan and recorded her statement. In rebuttal
appellants produced R.W.- 1 Nasrullah, R.W.- 2 Shaista Khan, R.W.- 3 Sardar Fazal Patwari. The
appellant No.1 himself and being attorney of appellant No.2 recorded the statement.
5. The learned Rent Controller while resolving the main Issue No.2 in favour of the
respondent and consequently ordered the ejectment of the a ppellants.
6. The learned counsel for the appellants contended that rent from March, 2011 to February,
2012 was paid through receipt issued by the landlord and thereafter rent was refused by the
respondent and same was deposited in the CCD account; that receipt and rent deposited through
challan are appended along with memo of appeal; that in the rejoinder to the eviction application,
it was specifically averred that the rent was duly paid through receipt, however, if there is any
default, the appellants admitted the same as a first default and after that no cause of action
remained against the appellants; that respondent/landlord had adopted the practice of receiving
rent periodically after 3 or 6 months, would lead to the presumption that such practice o f
receiving of rent was adopted by the landlord; that appellants have deposited the rent till
December, 2013 and receipt/challan have been annexed along with the appeal; that the alleged
first default was admitted in the rejoinder to eviction application, therefore, in view of added
provision under sub- clause (i) of clause (2) of section 13 of the West Pakistan Urban Rent
Restriction Ordinance, 1959 (hereinafter the "Ordinance"), the first default was condonable; that
the impugned order suffers from misread ing of evidence and misconception of law, hence liable
to be set aside.
7. The respondent despite service of notice did not appear and she was proceeded against ex
parte vide order dated 6th June, 2014.
8. Having heard the learned counsel for the appel lants and perused the evidence on record
as well as challan/receipt appended along with the appeal. The appellants in the rejoinder to
eviction application besides admitting the default being first default and ready to make payment
of the same had further contested and averred that the monthly rent from the month of March,
2011 to February, 2012, had been paid through valid receipt issued by the landlord. Though the
relationship between landlord and tenant was not denied by the appellants yet an objection w as
raised that the Cabin in question belong to Municipal Corporation, however, the learned Rent
Controller through Local Commissioner along with Patwari called report and recorded statement
of Local Commissioner, namely, Habibullah Merwani, Advocate who submitted his report
Exh.C/2 indicating that Cabin in question is situated on the land of the respondent, so there is no
cloud in this respect. The respondent through her statement on oath supported by A.W.- 1 stated
about the default committed by the appella nts since January, 2012 and onward. The appellants
and their witnesses, Nasrullah and Shaista Khan on one hand stated that rent from March, 2011
to February, 2012, was paid through valid receipts and no default had been committed. On the
other hand, defaul t was admitted and stated that the tenants are ready to pay the same. The
further defence was based on the ground that landlord used to collect the rent at the interval of
several months.
9. On the legal premises as to whether, after filing of the rejoinder to the eviction
application, the admission of default by the appellants (tenants) would amount to be a first
default and was condonable in view of the amendment made in the Ordinance by the Balochistan
Ordinance VIII of 1985 added a proviso after clause (2) of section 13 of the parent Ordinance. It
reads as under: ---
Balochistan Amendment
"Provided further that where the application made by the landlord is on the ground
mentioned in clause (i) and the tenant on the first date of hearing admit s his liability to pay the
rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default
on any previous occasion, direct the tenant to deposit all the rent due from him on or before a
date to be fixed for the purpos e, and upon such deposit being made he shall make an order
rejecting the application."
10. The learned counsel for the appellants in view of the above amendment argued that the
liability to pay the rent for the defaulted period was specifically admitted by the appellants in the
written statement as well as in their statements before the learned Rent Controller, however, it
was respondent who declined to receive the rent, therefore, according to learned counsel for the
appellants, the benefit of afore -quoted second proviso to section 13(2) of the Ordinance VI of
1959 was very much attracted in favour of the appellants (tenants) and on that strength eviction
application is liable to be dismissed. This contention in the circumstances of the present case has
no substance. The above amended second proviso of the Ordinance, 1959 provides that if the
tenant on the first date of hearing admits his liability to pay the rent due from him and the
Controller in this respect shall pass an order but in the present case, the appellants on 16th May,
2012, 23rd May, 2012, 31st May, 2012, 9th June, 2012, 14th June, 2012 and 18th June, 2012
neither himself nor through their counsel straightaway admitted default or offered to pay the rent
nor in this respect any order was passed by the Rent Controller. The appellants on 21st June,
2012 after filing rejoinder to the eviction application/written statement admitted the default and
further contested the eviction application on the same ground that rent from March, 2011 to
February, 2012 was paid through valid receipt issued by the respondent, therefore, after filing
written statement and raising objection thereto, the appellants are not entitled to take the benefit
of above provision of the Ordinance. Reference can be made in the cas e of Hazrat Umar v. Zafar
Majeed and 13 others, PLD 1991 SC 138, wherein the Hon'ble Supreme Court has observed as
under: ---
"We do not agree with him. It was a disputed question whether or not the landlord had
refused to receive the rent in the first instance, accordingly, the appellant had disputed his
liability to be evicted on the ground of default. In case like the present the condition in the
Proviso would have been satisfied if the tenant would have, at proper time, accepted, amongst
other conditi ons his liability to pay the rent. There was also liability to be evicted if the rent is
not offered and paid as laid down in Proviso. In this case none of the conditions is satisfied. For
example the appellant did not accept his liability to pay the rent. As to the facts, when he had
filed the written statement, the rent, according to his own admission in para. 5 of his written
statement was still due.
Notwithstanding the aforementioned averment in the written statement about rent he did
not offer to pa y the rent straightaway without raising any contest as is the intention underlying
the Proviso. Accordingly, he cannot get any advantage on account of the newly -added proviso.
In this behalf it needs to be remarked that it is the duty of the counsel app earing in such
cases to advise the client properly so that he may be saved of the unnecessary contest, litigation
and loss, monetary and otherwise to both the parties."
In the case of Muhammad Siddique and another v. Dr. Edgar Nathenial, 1997 CLC (Quetta )
2041, wherein it has been observed as under: ---
"In the instant case as it has been pointed out hereinabove appellants after availing
adjournments as it is indicative from the different dates which was obtained by them either on
the pretext that copy of eviction application has not been given to them or obtained the date for
filing wakalatnama and later on after fullfledged consideration raising all the legal objections
undisputedly availing all alternative safeguards/cushions against the eviction orde r had made a
qualified statement, admitting liability to pay the rent with effect from 12 -2-1996 to 30- 4-1996,
made a statement with all reservations by using the words before opening sentence 'save',
therefore, it is not possible to hold that appellant ma de unqualified offer on the first date of
hearing for payment of rent."
11. In view of the above principle enumerated by the Hon'ble Supreme Court in the case
supra, the appellants in the present case cannot get any advantage on account of the newly -added
proviso. Since the appellants did not accept the liability towards defaulted rent on the first date of
hearing and after filing written statement the rent according to their own admission in Para No.3
of the written statement was still due.
12. Adverti ng to the facts of the case, the appellants though through verbal evidence asserted
that the rent from March, 2011 to February, 2012 was paid through valid receipt issued by the
landlady but no such receipt was produced during evidence or recording the sta tement of the
appellants nor put the same to the respondent during her statement or cross -examination. The
mere appending a purported receipt along with the memo of appeal cannot be termed as an
evidence unless proved in accordance with law. The contention of the learned counsel for the
appellants that the respondent had accepted rent after 3 or 6 months/ periodically from the
appellants and the receipts annexed along with the appeal showing lump sum payment would
lead to the presumption that practice of re ceiving the periodic rent was adopted by the
respondent are not tenable. The tenant is under legal obligation to pay monthly rent to the
landlord, if tenant adopted the practice to pay rent at irregular intervals he made him liable to
eviction. Reference i n this respect is to be made in case of Mst. Hajiani Aisha and others v.
Abdul Waheed, PLD 1989 SC 489, the relevant thereof is reproduced herein below: ---
"Moreover, it has been consistently held by this Court that the mere fact that the landlord
accep ts rent from the tenant periodically does not mean that he does not desire or expect rent to
be paid in time as required by the Ordinance, Haji Muhammad Qasim v. Mehran Ali 1983
SCMR 1205; defence based on the ground of landlord receiving or collecting the rent at intervals
of several months is not a good ground because the tenant is under legal obligation to pay rent to
the landlord and the landlord is not supposed to go and collect the rent from the tenant, Malka
Begum v. Mehr Ali Hashmi 1984 SCMR 755. Pr oduction of one solitary receipt showing lump
sum payment of the arrears of rent would not lead to the presumption that practice of receiving
rent periodically was adopted by the landlord, Muhammad Alam v. Noor Muhammad 1973
SCMR 606. We may also usefully quote a passage from the judgment of this Court in Dr. Syed
Waris Ali Tirmazi v. Mst. Liaqat Begum 1980 SCMR 601 which appears at page 606 of the
report. It reads as under:
"As this observation was followed in Muhammad Shafi v. Zahir Hussain and another, we would
clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J (as he then was) gave a
warning in Muhammad Alam's case that a practice by a tenant to pay rent at irregular intervals
made him liable to eviction, because such a practice was con trary to the provisions of the West
Pakistan Urban Rent Restriction Ordinance, 1959. Then after giving this warning his Lordship
went on to make an observation that the Court could condone delay in the payment of rent if the
landlord had agreed to accept r ent periodically. Now, if a landlord agrees to accept rent
periodically' this can only be the result of a fresh agreement between him and the tenant, and if
he enters into such an agreement, he would no doubt be bound by his representation to the tenant
not to pay rent at the end of every month. However, as was explained in Alimullah's case the
burden of proving such an agreement between the landlord and the tenant is not to be inferred
lightly and cannot generally be inferred from the mere fact that the la ndlord had received rent
from his tenant at irregular intervals, therefore, the observation of Muhammad Yaqoob Ali, J. (as
he then was), does not help the petitioner's case, because he has failed to prove that the
respondent through her husband, had agreed to alter the terms of the tenancy with the petitioner
and to receive rent from him at long intervals."
13. The other defence in the present case related to default taken by the learned counsel for
the appellants that subsequent payment of arrear of rent in CCD account through challan also
shows bona fide of the appellants that they have deposited the due rent a nd had not committed
default in the payment of rent is also not tenable under the law. The appellants were under legal
obligation to deposit the rent within 60 days after it had become due i.e. January, 2012 but they
failed to do so and committed a wilful default. It is mandate of Clause (2) of section 13 of the
West Pakistan Urban Rent Restriction Ordinance, 1959 that rent was to be deposited within 60
days after it has become due and after that it would consider default and the tenant would be
liable to b e ejected notwithstanding subsequent payment of arrear of rent. Reference in this
regard is to be made in the case of Malka Begum v. Mehr Ali Hashmi, 1984 SCMR 755, wherein
the Hon'ble Supreme Court has served as under: ---
"It is by now well- established that tender of rent after the period prescribed by law, is no
proper tender and that the tenant is guilty of default."
In view of the above, this appeal is hereby dismissed with no order as to costs.
MH/44/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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