2017 M L D 2106
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
RAHIM MUHAMMAD alias ROHI MUHAMMAD---Appellant
Versus
Syed NOOR SHAH ---Respondent
Regular First Appeal No.5 of 2015, decided on 29th May, 2017.
Civil Procedure Code (V of 1908) ---
----O. VII, R.2 ---Limitation Act (IX of 1908), Art. 110---Suit for recovery of amount ---Arrears
of rent in wake of previous eviction proceedings under Rent Restriction law ---Defendant had
denied relationship of landlord and tenant and had challeng ed maintainability of the suit and suit
being time barred ---Maintainability of suit for recovery of arrears of rent ---Scope ---
Appellant/tenant contended that exorbitant arrears of rent without any documentary proof of the
rate of rent was illegally claimed by the respondent/plaintiff which was not maintainable and also
time barred ---Respondent/landlord contended that in previous eviction proceedings against
appellant/tenant, the rate of rent was determined by Rent Controller which order was .upheld up to th e Supreme Court and that the suit was not time barred as recovery of arrears of rent was
governed by Art. 110 of Limitation Act, 1908- Validity ---Perusal of evidence indicated that no
relevant provision of law had been pointed out by the appellant to indic ate that under which law,
the filing of suit for recovery of arrears was barred ---Rent Controller while passing eviction
order had passed comprehensive judgment and decree which was upheld up to the Supreme Court, therefore, the suit filed by the respondent was maintainable ---Appellant had also
challenged the existence of relationship of landlord and tenant between the parties and rate of rent, which was decided by the Rent Controller so the relationship between the parties existed and the rate of rent had also been determined by the Rent Controller ---Findings of Rent
Controller on the question of relationship/title, could not be challenged in civil suit ---Rent
Controller in his order had specifically observed that "the applicants might approach civil court for arrears of rent at the rate of Rs. 16000/ - per month from Jane 2007" ---Such findings of the
Rent Controller were upheld by the High Court and Supreme Court, therefore, the evidence produced in the present case by the respondent with regard to rate of R s. 16000/ - per month and
arrears of rent from June 207 was based on proper appreciation of evidence ---Objection raised by
appellant for limitation was not tenable as Art. 110 of Limitation Act, 1908 was relevant provision with regard to limitation for arre ars of rent, which provided period of three years when
the arrears became due---Suit for recovery filed by respondent was within time, though, the respondent had claimed recovery of Rs. 1,475,750/ -, but the trial court after proper appreciation
of evidence decreed the suit only to the extent of arrears of rent total 87 months at the rate of Rs.
16,000/ - per month--- Findings of the trial court neither reflected misreading or non -reading of
evidence, hence warranted no interference by the High Court -Regular f irst appeal was dismissed
accordingly.
Mir Salah -ud-Din v. Qazi Zaheer -ud-Din PLD 1988 SC 221 and State Life Insurance
Corporation of Pakistan v. MesSrs Plasticrafters (Pvt.) Ltd. 2013 SCMR 1623 ref.
Abdul Rasheed Awan for Appellant.
Gul Hassan Tareen fo r Respondent.
Date of hearing: 26th April, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Through the instant appeal, the appellant has
challenged the validity of the judgment and decree dated 31st December 2014 (hereinafter the
"impugned judgment and decree") passed by Civil Judge -IV, Quetta (hereinafter the "trial
Court"), whereby the suit for recovery of Rs.1,475,750/ - filed by the respondent (plaintiff) was
decreed in his favour to the extent of Rs.1,392,000/ -.
2. The facts of the case are that the responden t (plaintiff) filed a suit for recovery of
Rs.1,475,750/ - with the averments that he is lawful owner and landlord of Cabin No.2- 25/4(13)
Street No.7 Opposite Rabi Center Cut Piece Gali, Quetta (Cabin in question) and the said Cabin was rented out to the appellant (defendant) on monthly rent of Rs.16,000/ -through Syed
Ainullah. The respondent filed an eviction application against the appellant on 16th March 2010
in respect of Cabin in question on the ground of default and required the Cabin in question by the
respondent in good faith, bona -fide use and occupation of his son Syed Zakria. The trial Court
vide judgment and decree dated 30th April 2011 allowed the application, which was assailed by the appellant through F.A.O No.11 of 2011, that too was dismissed by this Court vide judgment
dated 23rd December, 2013. The judgment of this Court was assailed by the appellant in Civil Petitions Nos. 66 and 67 of 2014 before the Hon'ble Supreme Court of Pakistan, which was dismissed vide order dated 25th February 2014, however, six months time was granted to the appellant for handing over the peaceful possession of the Cabin in question to the respondent.
3. After above proceedings, the respondent filed the suit, which was contested by the
appellant by way of filing wr itten statement.
4. Out of pleadings of the parties, following issues were framed: --
1. Whether the suit of the plaintiff is not competent before this forum?
2. Whether the claim of the plaintiff for recovery of counsel's fee, is not maintainable as no proper procedure has been adopted?
3. Whether the plaintiff is entitled for the relief claimed for?
4. Relief?
5. The respondent (plaintiff) produced PW -1 Ainullah and got recorded his statement. In
rebuttal, the appellant (defendant) re corded his statement.
6. The trial Court vide impugned judgment decreed the suit in favour of the respondent as
mentioned hereinabove.
7. Learned counsel for the appellant contended that no agreement/ receipt or supporting
document related to rent of Rs.16,000/ - per month was produced by the respondent , but the trial
Court without any evidence determined the rent of the Cabin in question as Rs.16,000/ -; that
during the proceedings before the trial Court, no issue was framed with regard to rate of rent nor
it was assessed in the eviction judgment passed by the trial Court, therefore, the claim of the respondent with regard to exorbitant arrears of rent through the suit for recovery was neither maintainable nor through any evidence, the said rent was establis hed; that no evidence in support
of rate of rent was produced, therefore, the impugned judgment reflects misreading and non-reading of evidence; that the suit for recovery of the amount was barred by time and the recovery for more than three years was not permissible under the Limitation Act, 1908 (hereinafter the "Act, 1908").
Learned counsel for the respondent contended that the findings of the trial Court in
respect of rate of rent and personal bona- fide use of the respondent was challenged by the
appell ant up to the Hon'ble Supreme Court and the same was upheld, therefore, there was no
cloud in respect of rate of rent; that there were specific findings of the Rent Controller with regard to arrears of the rent against the appellant, for which the respondent was allowed to seek his remedy from the competent Court of law and those findings too were upheld up to the Hon'ble Supreme Court; that the recovery of arrears of rent was governed under Article 110 of
the Act, 1908 when the arrears became due, therefor e, the suit filed in the year 2014, was within
time.
8. We have heard the learned counsel for the parties and perused the record. The divergent
pleadings of the parties necessitated four issues, where on the findings of the trial Court are based on proper appreciation of evidence. In issue No.1, the appellant raised objection with regard to jurisdiction of the Civil Court. The perusal of evidence indicates that no relevant provision of law had been pointed out by the appellant to indicate that under which l aw, the
filing of suit for recovery of arrears was barred. It is necessary to mention here that. the trial Court while passing the eviction order in the eviction Application No. 04 of 2010 in its judgment and decree dated 30th April 2011 concluded as under :--
"Since issue No.1 is resolved in affirmative, hence, applicant is entitled for relief claimed for, therefore, instant application is hereby accepted and respondent is directed to vacate the cabin bearing No.2 -25/4 (13) situated in Gali No.7, Opposite R abi Center, Cut Piece
Gali Quetta and hand over the vacant posses sion of the same to applicant with in 60 (Sixty Days) of passing of this order subject to payment of rent. The applicants may approach Civil Court for arrears of rent at the rate of Rs.16000/ -per month from June
2007. There is no order as to Cost."
9. The aforesaid findings of the trial Court were upheld up to the Hon'ble Supreme Court,
therefore, the suit filed by the respondent was maintainable and the findings of the trial Court in
respect of issue No.1 warrant no interference. The trial Court has given findings on issue No.2
against the respondent (plaintiff) and held that the respondent is not entitled for recovery of
counsel's fee. The respondent has not challenged the findings on the is sue No.2 nor filed any
cross objection nor there is any evidence to give any finding contrary to findings of the trial Court. The appellant had also challenged the existence of relationship of landlord and tenant
between the parties and rate of rent, which was decided by the Rent Controller. The relationship
between the parties existed and the rate of rent has also been determined by the Rent Controller.
The appellant had challenged the findings of the Rent Controller in F.A.O. No. 11 of 2011 and this Court while dismissing the F.A.O. No. 11 of 2011 observed as under: --
"In the peculiar circumstances of the instant case and in view of the above dictum laid down by the Apex Court, in absence of any evidence to the contrary, the respondent by virtue of his title is held to be the landlord of the disputed-- cabin and the appellant is
considered as his _tenant under the law. The denial of relationship of landlord and tenant by the appellant is held malicious."
10. It is settled principles that the Rent Controller rendered the findings on the question of
relationship/title that the same cannot be challenged in Civil Suit unless it is said so. Reference in this context is to be made to the case of Mir Salah -ud-Din v. Qazi Zaheer -ud-Din PLD 1988 SC
221, wherein the H on'ble Supreme Court observed as under: -
"In order to appreciate the argument of the learned counsel it is necessary to briefly re-state the rule laid down in the case of Rehmatullah. It is that:
A matter involving even a dispute of title ---having once obt ained finality in the Rent
Controller's forum (including the hierarchy of appeal/s and thus the appellate and superior Courts) cannot be re -agitated in a suit before a civil Court of general jurisdiction,
inter alia, because of principle of general res jud icata; the provisions contained in Section
12(2), C.P.C. read with section 9, C.P.C. and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (as Amended).
Some possible exceptions to this rule have also pe en supelled out in the same case of
Rehmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralized when the order itself says &flat it is not final regarding a particular iss ue and that the same could be the said order in
itself conveys a clear undisputed intendment that it is not final and visualizes a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or, when the relevant issue is determined on the basis of doubts; or, when the party concerned itself instead of getting the final determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before Court of general jur isdiction which course in some cases would, be at the risk of a
temporary adverse conclusion and/or action against him. "
11. Whereas the rate of rent of the cabin in question is concerned, the learned Rent Controller in the concluding para of the judgment had specifically observed that "the applicants may approach
the Civil Court for arrears of rent at the rate of Rs.16,000/ - per month from June 2007". These
findings of the learned Rent Controller have also been sustained by this Court and the Hon'ble
Supr eme Court in Civil Petition Nos. 66 and 67 of 2014 vide order dated 25th February 2014,
therefore, the evidence produced in the instant matter by the respondent with regard to rate of
Rs.16,003/ - per month and the arrears of rent from June 2007 to August 2014 (total 87 months)
at the rate of Rs. 16,000/ - per month was based on proper appreciation of evidence. The
contention of the learned counsel for the appellant that the claim of the respondent for
arrears/recovery of rents from June 2007 till August 2014 was barred by time, is not tenable.
Article 110 of the Act, 1908 is relevant provision with regard to limitation for arrears of rent,
which provides period of three years when the arrears became due. Reference in this respect is to be made to the case of State Life Insurance Corporation of Pakistan v. Messrs Plasticrafters
(Pvt.) Ltd. 2013 SCMR 1623, wherein the Hon'ble Supreme Court observed as under: --
"A plain reading of above provision of law shows that three years period of limitation prescribed for filing a suit for recovery of arrears of rent is to commence from the date when payment of such arrears has become due and not from the period to which such arrears relate. In the present case, applying this principle, it is easily understandable that the s uit amount, as arrears of rent for differential sum payable by the respondent in terms
of the earlier order of the Rent Controller dated 1- 12-1997, from the date when the
application for fixation of fair rent under section 8 of the Ordinance of 1979 was fi led by
the appellant, became due and payable by the respondent only upon dismissal of F.R.A. No.13 of 1998 on 12 -1-2000, as the earlier order of the Rent Controller then merged into
it. However, in case the respondent had not challenged the said order of t he Rent
Controller in appeal, in that case it would have become due and payable from 1- 12-1997,
when the Rent Controller has for the 1st time fixed the fair rent at Rs.I2 per sq. ft. per month from the date of filing of such rent case.
Having discussed as above, in our opinion, all the three Courts below fell in grave error of law in misinterpreting and misapplying Article 110 of the Limitation Act, 1908, which resulted in the dismissal of the suit for recovery filed by the appellant on wrong factual premis es. In the facts and circumstances when the sum claimed in the suit as outstanding
arrears of rent had become due on dismissal of the appeal on 12- 1-2000, the period of
limitation prescribed in column No.2 of Article 110 had to be computed from 12- 1-2000,
when suit amount as per adjudication and fixation of fair rent has finally become due. This view of the matter is fully supported from the ratio of above cited three cases, thus, calls for no further debate on this issue. Besides, the above reproduced lett er, Exh.P.6
dated 17- 9-1998, written by the respondent to the appellant and received in their office on
30-9-1998 has further served the purpose of acknowledge of their liability in respect of
suit amount from their side as in this letter they have clearly stated that they will abide by
the decision of the appellate Court, as and when decided".
12. In the instant case, admittedly, the learned Rent Controller had passed the judgment and decree dated 30th April 2011, which was assailed by the appellant in F.A.O. No. 11 of 2011 and the said F.A.O. was dismissed by this Court on 23rd December, 2011, whereafter the appellant filed Civil Petitions Nos. 66 and - 67 of 2014 and the said petitions were dismissed by the
Hon'ble Supreme Court of Pakistan vide order dated 25th February 2014 by allowing the appellant to retain the possession for a period of six months and to handover the possession to
the respondent i.e. in the month of August 2014, therefore, as per Article 110 of the Act, 1908, the arrears of rent became due in the month of August 2014 and the suit for recovery filed by the
respondent i.e. 18t h March 2014(sic) was within time. Though, the respondent had claimed
recovery of Rs.1,475,750/ -, but the trial Court after proper appreciation of evidence decreed the
suit only to the extent of arrears of rent total 87 months at the rate of Rs.16,000/ - per month. The
findings of the trial Court neither reflect misreading or non -reading of evidence, hence warrant
no interference by this Court.
In view of the above, Regular First Appeal No.5 of 2015 filed by the appellant is
dismissed. Parties are left to be ar their own costs.
Decree sheet be drawn.
MQ/83/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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