Iqbal Husain (Petitioner) VS Moazzam Zaheer Khan & Ors (Respondent)

c: Ct c-. A .^1 ?-616 j+8 I (sn 1 \-/ CiRTIT.,ICA'|I] OF ]]IE COUITT IN I{LGARI)'IO REPORTING (i) a?n 6/. .4 /u1,,. ., . . r.9 ' blg/

//ft1r{2./- /', ./V,..tlr.*,

SINDII HIGII COUITT

C-otnp_osititrl ol Bench. .!iirgla,tHL t ot //z z/,1 TztCZ*- zfadatrz,c,l,(atiu ,t/"ar.

ff4a lt/Ot/latl, Dates of bearins:

Decided otr t.t tfy'y'laru

(a)Judgment approvcd for reporting.

"'7"t +ab.

CBR'IIFICATE

. Certifi€d. that the judgment l Order .is based updo or cDunciates a pri-ocip-le oi law '/dccides a question of -iluw which is of fiisr int pressron d ist inguishes i over-rules/ reverses./explains a previous dccision +Strike ort whichever is oot applicable

NOTE:-(i) This slip is only to be used rvhcn some action is to be taken lii) If.the sJip is used, the Reader must atrach jt ro the top of the nrst \, paEe of rhc judgment.

l'

\ t (iii) hdSment Rerder musr rsk is tl:c- J-udge writing (he Judgment whether thc approved for reportitrg.

Lto ( (iv) Those directions which are not to be used should be deletcd.

SCP., Kar.-l- (iii) 1459 5.000-6-93 -T.S.S

IN TI{E HICI{ COURI' OF SINDII AT KARACI

II.

C)).NO.!ro -n}fi !)r'c;'r rl :.tr: ir:r o Q ' B- lo Iqbal Husain S/o -tajammul Hussain ?(\' Muslinf adult, renflnt ofshoD No.6 In lhe brrildine futorvn :rs

SKY WEW BUILIDNG 1-

No 26. Sheet A M lreer Road Karachi Petiriotlcr

yER,sus LIL .

il Mruzzam Taheer Khan S/o Muhammad Zaheer Khan M[slirD, adult, '?{'-f;"t R/o H.No. 165, Sec(or I l-A North Karachi, Karachi

ii)Vth ADJ South at Karachi....

Rcspoodcnli

!osTl IUTtrlN PErltl.:: u\r_rllR ASIrcUtP ()t' j Ct{ Being aggricved aod dissatisfied by rlre Order dared 3l- p2J.l0 f"rr"A by rcspordeot No.2 strd order dared passed by Vith Ren.

Conooller Ksrachi South, *bA;;; evictior application filed by respoodeot No-l has been allowed incompe&nrly, ilcgally ard sgaio$ the s€tded prirciples of law. {Ccrtifr€d copy of Ordcr drfed 3l-O5-20l0 b rancred aod marked ,s rurxrrc_p).

Continued

(o\ IN THE HIGI' COTIRT OF.';INDtt AT KARACHI

Before: Mr. Justicc Muhammad Karim Khan Apha

C.P. No.S-{i00 of 2010

IqbalHussain Versus N{oazzam Zaheer Klan & another

ry l'}etilionr.r __l lhrough lVIr. iUustal'o Lakhani Adlocatc

Rcsporulcnt Through Mr. Adnan Ahmed Advocate ^'o.l i

Respondents No.2 _l Nore for Respondcrt No.2

J GMENT

[Iu h Karim Kh h - This ('onstilutional Petition has been Iiled by the Petitioner against Judgmcnt passed by Leamed Districr and Sessions Judge Couf No.V Karachi South (X.cspondcnl No.2) dared Jl-5-20t0 (the lmpugned Judgment).

2.fhe brief ihcts ofthe casc arc that the petitioner's father I4r.Iaiammul Hussairr had been the terant ofShop No,6, Sky View Building, Survey No.26 Sheet, A.M.

Frere Road, IGrachi (the Property) since 1952 paying a monthll,renr ofRS 34.59 to the then Landlord GME Patel. On the death of the petilioncr,s father thc Petitioner continued working in the Premises and runnilg the busircss ot' photocoplng ard becomc a stalurory rcoant (the Tclant). On 27-S-19g4 the Respondent N-o.l (the Landlord) purchased lhe propefly by rcgistered sale deed Ilom lhe theD owne. subject to tie occupotion of the T€nant and becanlc thc Teoarls new landlord.

3.Afler t[e purchase the Landlord sen a legal notice dated )0-i-g4 (legal lotic€/notice) through his coun-rel to rhe fenant inlbrmrng him about lhc purchase of'lhe Propery by rhe Landlord and according to the Larldlord instncted lhe Tetranl to pa)' arl increased monthly rcnt ofRs 150 to the Lardlord, 'l'he Tcnant or lhe other hand confirmed having rcceived the notice but disputEd thar it contained any increase in lent atd io any evcnt he did not agree to sny increase in rcnt and hence he deposited the rent at rhe cxisting rate in lvlRc No.79t,/1968 up tcr 31-7- 1984 with the Nazir ofthe cilil Court in the name ofrhe prelious Landlord GME Patel. He also sent relt al the existing rate i.e. i4.59 per month to the Landlotrl,s Rcnt Colleclor Mr. Haroon Rehmatullah (uaroon) on 25-8-1984 throuelr nrorev ,ry

oder for the months of August, Seplcmber and Octobcr 1984 who according to the Tenant declincd lo acccpt the sflne.

4.Accordiflg to the Tcnant he again on 12-9-1984 sett rent rkough money order amounliog to Rs. l05/- to the landlord's Rcnt Collcctor bcing rcnt for the months of August, September aod Oqober 1984 at the oxisting rate but again the landlord's rent collector refused to acc€pt the payment. According to thc'lenant since he apprehended false grounds of non-paymcDt of rent by the Landlord he moved an application under secrion l0(l) of Sindh Rented Premises Ordinancc, 1979 (xvn of 1979) (SRPO 1979) in Court of Itnd Rent Controtler, Karachi South on 08.10.1994 (sic) for depositing amouti ofRs. 210/- with rhe Nazir ol the Coud boing Ient of the Property at the existing rate ftom July to December, 1984. He also luther obtaihed permission to deposit rnonthly reilr at thc said rate regula y in MRC N0.3338/1984 and had been paying the renr accordingly ritl date.

5.The Landlord moved an applicatior rurder section 15 ofthe SRPO l9?9 before the Vth Rent Controller Karachi Soulh seeking to evict the Tenart. Tte rmin grounds were lhBt (a) the tenant hsd failed to pay rent within 60 days afler the renr had become due for payment (b) the tenant had uscd the prol)ert] lor purFoses other than which it was let out (c) tiat the Tenant had committed such acls as were likely t(t impair the mate al value ofthe Propeny and thar (d) thc l,afldlord r€quired lhe Property in good laith for his o*n occupation or usd.

6.Affer the recording ofevidence, the V-Rent Conuollcr, Kar.achi South by oriler daled 02.03.2009 (rhc Clrder) held that lhe landlord required the property for hir; personal usc ln good faith and that thc Tenant',\as a raillful defaullcr in tlt payment of rcrt of the Propeny. Accordiogly, the Tenant was directed to vacatc the Propeny within 30 da),s liom the date ofthe Order.

7.tseing dissatisfied with the above mcntioned Order the Tenaurt prelerred an appeal in the Coun of District Judge at Karachi South 0&A No.75l2009) under s€€tion 2l ol'the SRPO 1979 on the basis that the Rent Controller had erred irr firding that the Landlord had conclusively establishod his personal reqlriremenl of the Prope(y in good faith due to a misreading of evidcnce and rhar he had alro errel in lindiog that the Tenant was a willrul dcfarrlrer based on a non-reading tl' the evidence.

8.The aforesaid appcal was disnrissecl vide judgment dated 31.5.2010 hy thc leamed V.lh Addilional District and Sessions Judgc, Karachi South. Ir is againsr this Impugned Judgment thal the Tenant has prefened this constitutiona! pelition b€lbre this Court. W}

9.Leamed oounscl for the TenalL?etitioner submitted that the Impugned Judgment was bad in lau' and was liable to be set-oside. Il the altcmative he argued se.tiods 21 (1) (C) and (D) of the SRP0, 1979 lvere applicable and that the case ought to be remanded back to thc appellate authority io enablc a compromise 10 be rcaclNd between the parties or cnable him 10 colilinue his t€nancy subject to pa)ment of eDhalced rent fixed by the authority. Ile subnritted that sinco the Appellate Authoriq had not prcssed into seryice $cse two s€ctions ofthe SRPO 1979 it \,\as an error in law which justified the temilnd of thc cflse back to the Appellate Authority in order to comply with thcse scctions.

10.Leamed counsel fifther argued that thc usc of tl're word '1]1a.v" in the above $entioned sections lras llol strictl,v direclory. IIl l,\is rcspect he relied upon lhe case of Abdul Latif Vs. Ghulam Nebi & olhcrs SBLR 2006 Sindh I12.

11.He futhcr submitted that the Impugned Judgment was rcquired to be set-asidc because the iearned Judge had errcrl in finding under s€ction 15 of the SRPO, 1979 that the t,andlord re{uircd the Propeny in good faith fbr his o\{,Il occupation or use. According to the learned courNei for the Tiihant/Pctitioner the Lnndlord had other propert)' in which he could set up his business and had no oecd of the Propedy in dispute espccially since he had purchased the Properly ilr 1984 knowirg full well that it was subjcct to al1 exisling tenatrcy.

12.He also submitted that lhc affidavit in evidenc€ ol the l-andlord's *'itncss Mr.

Azam Zaleer Khan *'ho is the real brothcr of the landlord had admitted that thc Property rva-s to be used for establishing his business i.e. Mr. Az D Zaleer Khan and not thal olthe l-andlord and irs such the l.andlord did not require the premiscs in good faith lbr his own occupation or usc of his spouse or any ofhis children as pe. sectior 15 (2) (vii) a-s per the requirement of SRPO, 1979.

ll. He further submitted that ihe Landlord in qoss cxamination had also adnritted that he had not disclosed lhc naturc ofthe business which he wanted to start in the Property in his affidavit in evidence. He also admitted that p or to the filing of tI the retrt case he had not given any notice lo the tenant in respect of delault il1 payment of reni or in rcspect of alteration of thc Property. In his cvidence he had only voluntarily staled thal he had verbally asked the Tenant lbr pa)'ment of arrears of rcnt-

tr 14, He also argued that lhe co ect monthly rent \las Rs.34.59 Per tnonlh and flot Rs. 350/- per month since neither was aly figure in respect of reviscd reot corrununicated to hiEl in the notice which he had received ftom thc Landlord nor had he ageed to any increase in rent. (i

counsel for tht t5. \rr'ith regard to willful default in the laymelt of rerlt leamed default by him in lerms of Tenant/Petitioner submitted that there had been no the Larrdlord he Sellion 15 (2) (ii) SRPO' 1979 as uporr receiving the noticc frorn lvas then due upto:11 7 1984 had irnmediately paid the rent at existing rate u'hich under section l0(3) of into the MRC account issucd pu$uant to his application the SRPO. 19i9. He had cotrtinued paying rent into this account till datc afld there Judge had erred lias no question ofany willful detiiuit on his part ard thc leamed in such fiudiag in the lmpugrred Judgment'

16.Leamed counsel for the Tenantryetitioner in further support of his whereby tle larrdloni conte[tions rcferred to lhe cross examination ot' landlord rent collector Mr' had admitted that thc Tenant was dirccted to pay rent to his mentioned in the legal Haroon and it uas cor-rect that the rare of rent was not that the Tenant had slT ted notice. The landlord had admitted that he was unawarc 2n'r Rcnt (lonuoller' depositing rcnt in MRC No.3l8/1984 in the court of leamed comDrilted any default in Karachi Soutl and did nol knou whether the Tenart had payment of rent.

17.Wilh regard to the aspect ofthe feranVpetitioncr using the Property fot the acts whiclr prupose othcr than for which it was le1 out and the femnt committing section 15 ot th ' were likely to impair the material valuc ol lhe Property ulder submittcd that there SRPo, 1979, this was denied by him in his evidenco and he was no evidencc on record to contradict him in this regard' counsel for the TenantPctitioner

18.In summary lbr all the above rea-sons learned submitted that lhe Impugned Judgment should bc set-aside or in allcmative lhe

matter should be remanded back lo thc leamed Appellate Autllority to deal with

thc matler in aocordanci with seclion 2l (l) (C) 'nd (D) ofthe SRPO' 1979

hnpugned Judgmcnt

19.Leamed counsel for the Lardlord fully supported the which he submitterl had becn correctly deciderl in accordalrce with law fhe

(a)that lhe lardlord leamed Judge had rightly based on the evidence found or use and (b) thar thc required the Propert,' h good faith tor his own occupatio[ Tenant had wiilfirlly dcfaulted in the payment of rcnt so as to attracl thc

provisions of section 15 SRPO, l9?9 to justify thc eviction olthe lenad lrcm the

Property.

20.With rcgard to section 2l (l) (C) and

(D)oflhe SRPO' 1979 leamed couruel thc \Yord 'lia)" for the l,andlord submi(ed that it lvas setlled law tiat the use of us€d in the said sections rvas pwcly rlirectory in noture aid not mandatory and sections- ln suppod C)1- thercforc the leamed Judgc was not bound to follow these his contcntion" leamed couosel relicd on Azam Khon through Gcnerol AtlorEey vs. MuhamEad Hussain & 5 oth€rs 2003l L( 'e"

21.Leamed counsel for the Tenani/Petitioner lirrther submirted lhal the writ jurisdiction was oot maintainabie in cascs where there had already been llvo concunen't tindinSs i.e. iI} this crsc of the Renl Controller and theleafter thc Distsict & Sessions Judge in the t'irst Rent Appeal.

22.In this respect he placed reliance on lttrhand Chcmicrls Ltd. 1's. l'll- Atlditional Districl Judg€ & others 2010 CLC 599 and Shakecl Ahrcd & anothcr Vs. Muhammad Tariq Farogh & otbers 2010 SCMR 1925.

23.With regard to the inorcase in the payment of rent to Rs. 350/- per rnonth leamed coursel for the Landlord submitted that this had bcen admitted by the Tenant in paragraph No.9 ofhis written statemcnt.

24- Learned counsel for the Lasdlod also submittcd that scction l0 (l) ofthe SRI'O, 1979 had not been complied with since thc Landlord had not rchrsed or avoidcd to accepl thd rent since this had never been offered lo him by the I enant in the lirst place and as such since this pre-condition of section 10(3) of thc SRPO, 1979 had not been complied wilh the Tenant did noi lu\'e the right to send the rent by postal money ordc, or depositing rhe samc with thc Conlroller within whose jurisdiction the Propeny was situated and in so doing lhe 'ltnant had committed u,illful default. ln this rcspect Lcamed counsel placed rcliance on Msr. Yrsoeen Khan Vs. Abdul Qadir & another 2006 SCMR 1501.

25.He also submihed lhal section 18 of the SRPO. 1979 had becn violated since the TelaEt had not paid the Landlord the due rcnt within 30 days of rcceipt oI Irotice ofile new landlord together Dith revised nr[t.

26.Lesmed counscl for the Landlord fiIrhcr submitted thal lhe dela"v in pafing the rent by the Tenant in violation of section 15 (2) (ii) of thc SRPO, 1979 had been proved froin the evidence fid as such this violatiotr entitled the t€nant to bc evicted under section 15 SRPo, 1979 as such delay arnounted ro uillful default. Leamed counsel placed reliance on Muhammad Subtao & rnotber Vs. Msl.

Bilquis Begum tLrough legal heirs & three others 1994 SCr\1R 1507(2), and Prkis(.r Stat€ Oil Company Ltd. Karachi Vs. Pirjee Muhaomad Nrqi 2001 scMR 1140.

27.ln connectio[ with the Tcnant paying thc rEnt a1 the rate lowur'lhan thc fixed amounl ss in this case i.e. the Tenant xas paying only Rs.34.59 instedd of Rs 350/- per month this also amourted 1I) willtul dufault in rerms ofsectiou l5 (2) (ii r ofthe SRPO, i979. FIe placed reliance on the case of M/$. AIi Brotherc & others Vs. Mrs. Naushaba Jat €e! & o(h€rs 2001 MLD 648.

GI

28.ln coruection with tle quesrion ehether the Lancllo:d required thc Pm?efiy for his bona fide o(cupation or usc Leaned counsel for the Liudlord subnlilred that it was not fatal to his case the fact that thc landlord had ]lot disclosed iu his evidence the prccise nature ol'lhe busine\s I'or \tich the l.ancllord rcquircd the Propedy. ln this respect he placed reliance on Khawlj, Imrah Ahmed Vs- Noor Ahmed & anothel 1992 SCMR 1152, Mst. Saira Bai Vs. Syed Alisur Rahman 1989 SCMR 1366, and Shskeel Ahmed & another Vs. Muhammad Tsriq li'rrogb & others 20r0 SCMR 1925.

29.[n conclusion based on his submissions learncd counsel for t|e lardlord contended that the Lardlord requLed the properfy for his olvn use in good faitir and in addition this was a case of willful default ard that the maner had rigltly b€cn decided in the Impugned Judgment which did not rcquire any interference by this Coun.

30.t have perused thc record in detail and carefully considered the submissions ol the leamed couNel at the bar and considcred the case law cited by thcm.

31.The first issue to consider is the maintaioability of the Potition bearire in mind that iherc have already been t$o concurrent hndings in rcspect oi this matter as contended by the Landlord.

32.ln the case ofShakcel Ahmed & another Vs. Muhammad Iariq Farogh & others 2010 SCMR 1925 the Hor'ble Suprcmc Court held as undcr al placitum "(c) Sindh Renled Fremises Ordinarroc. (XVII of l979)-- --S. ls--Constitulion of Pakistan (I971), Afl. I99*- Constitutional petitioD againsl ordcr of,Appellat. Cour! '. Scopc--Appellale Coun was final authority rurdcr Sindh Rented Premises Ordinance, 1g79--CoNtilutional jurisdiction could uot bc invoked as substitutc to anoth€r appeal against such ordcr--Nlere fact thxt upon perusal of evidence lligh Court came to aflothet conclusion would uot fitmish a valid grould for interference in such order."

33.Furthcrmoru iD the casc of oI lttotrond Chehicsls Ltd. Vs, Vll-Addition0l District Judgc & others 2010 CLC 599 it rv.Ls hel(l as undcr a! placitw (a):

"Art. Igg---CoDstitutional jurisdiction--Co stitutio,lal petition challenging concunent iindings givel try coutts below*- lntcrfere[ce with such lindings by High Corrrt--Scope.

The scopc of inler{brence in conslitutional .iurisdiction is vcry Iilnited psrticulrrly so wh€n there tre concurretrt litrdiogs by thc Courtr below. High Court should interlere with cotrcurrent fiudirgc, itrter ali!, ill thc followiEg circuEslatrc€s :--(buld added)

(a)When there is a mis.eading ofevidence;

(b)Whert there is non-reading ofe!idencet

(c)Whel there is enoneou$ presumptioq oflacts;

(d)When &ere is a misapplication ol law;

(c)In the aid and to serue cause ofjustice but surely not to defeat il;

ll) Whcn a rule of larv laid rJorvn hy rhe superior couns hus not been corectly applied by the courts belou';

(g)Constitution ol jurisdiction caonot be excrcised ro reapp.aise evidence unless lowct Couns appr.rised cvidcnce in violation ofweli-seftled principles for appraisal ol evidence.

(h)Even if a differont conclusion is possible, rhe cvidcnce shall not be reappraisal (Sic) and such conclusion shall not be recorded by the High Court in exercisc ol its constirutional jtrisdiction;

(i)Constitutional jurisdiction camot bc used a rccond appeal;

C) the oonclusion of.the couns bclow arc not found to be arbitrar-v. capricious ot perrcrse."

34.Both of the aforesaid authorities in my view indicate there is very limitc(l scope in the Consdlutiorial jurisdiction for thc High Court to inteferr wilh rh,j findings of the sppellatc Court in rent cases especially after two conqrrenr findings.

35.I am howevcr oi the view thai although the soope may be limited it is lrot tolally barred as thcrc is always room fbr the Hitqh Coufi in its discretionary jurisdiction to ensue ihat complete justice is done. However, as indicated such interference in my view must only bc used vcry sparingly and only where there ha^s been a blatant and glaring enor by the appellant C-'oruts iuld tlut sucit intcrfercnce $ill serve the causr of justice. Thus. I find the Pctition to be maintainable under A.199 oflhe Consritutiun.

36.At this stage it is sigrdficant to note that during the course of his arguJnents the leamed counsel for the Landlord did not press his cont!:ntior that tle Property was being used for purposes tbr other tha! which it had becn let our i.e. by also usi[g a part ofthc Property for liting purposcs and that thc Tenanl had conDliltcd such acts as weJe likely to impah the material value or utility of tlle Pretnises i.e.

through mating urauthorizcd i teralioN. Neither of these grounds had becn accepted by the Rent Controller llot b]'the lean]ed Judge in the lmpugned Judgment and thus do not rcquirc ro be adjudicatcd upon.

37.Tlre only issues u'hich thercfore remain iue as undet v

(a)V/hethe! thc Renl Controller in his Order and leamed Judgc in the lmpugned Jtdgment had cncd io failing to apply S 2l (l) (C) afld (D) sRPO 1979

(b)Whetler the Rent should bc paid at tle modhly ratc ol Rs 34.59 or ILs 350 qnd

(c)whcther the Rent Controller in his Order a-nd leamed Judge in tlre Impugned Judgmelt had erred in findi g tlat thc l-zurd]ord reqlired the Property in good faith lbr his own occupxtion or use and

(d)whcther the leamed Judge in the Inrpugncd Judgtneot had ened in findiig that the I'enant had lailed to pay rent ro the t.andlold . ithin 60 drys aft.r it became due arld as such lhis was a case ofwillful dcfault.

38.Turnilg to tbe firsl is$uc (a) whcther the Rcnt Coltrr,llcr snd le8r[cd Judg€ in the lmpugned Judgm€nt hrd errcd in lailing to apply- S.!l (l) (C.) rnd (D) SRPO 1979.

39, For ease of refererce sections 21 (l) (C) and (D) ofthe SRPO, 1979 are set- out b{)low:-

''(l-c) The appe'iate authority. ,nay, ot ony ttagr oJ apped auetnpt lo elkct a compfifiise hetween the pa ies.ftold udded) (l-D) The appellate aihorit)'may, u'here it deenrs fit, before passing u lrutl otdet allot' thc lefit1n! to continuc hi5 tLnanLt subiPcl tu pt$mefl q enhanced rent lixed by the a tholily.' (bold addcl)

40.Ac{ordiog to leamed Counsel for thc Tenatt these amendments lnd been tllad€ in the SRPO 1979 in around 2001 (rvhich uas not disputed b-v lear,ied counsel for the Landlord). Since as a mle Parliament does nol lunend Slatutes or fuiuances for the sake of it a.nd rather does so in orrlcr to fill in loop holcs ir thc law or to make a law more etlective therc is in m]. view good reasou to bclieve thal lhese two scctions had becrl spe{ifically atldetl by Parliament with a view to attempt to shon circuit the rather cumbersome and time coDsunliog process as laid dow! in the SRPO 1979 io connecrion with the matters set out lhercin.

4l. ln the case of Abdul t,atif Vs. Ghularu Nabi & others SBLR 2006 Sindh 112 it \;!,as held in rclevant part as undcr:

"Para-I2. The abo,,re trao pr.rvisions rvere iDSe ed in the eruclment (SRPO, 1979) by rvay of subsequent ameodment. They conlcr powers upor the appellate authority, which can exercise al its olvn or cvcr at th€ r€qu€sl of doy of the prrties. No doubl i1'ord, $may" has bcen used in thcse provisions and nonrally il ilnpiies 'I'hat is optional/permissible, but herc thc provisions have scheme of rcsolving the disputc by bringirrg coDlpromise betrteen thc parties or allowing tho tenancy 10 corttinue by enl)ancing tlle ratij of rcnt. Obviously, the schcme is not to be rendered unworkable by leaving the provisions inactive. Tlrrs, the porven conferred upon

an authorit) under a scher e being discretionary or coupled with duty aod aIe not discretionar). simplioiror.(bold addcd) 12- Under Subscctioo (l-C) the Courr has 1l.r alrempr lcn. bringing cornprornisc bclwecn the parties. Although thc coDlpromisc ciur only be efiicred $ben tlre parties ag.ee to its te.ms but the autho.itJ has lo uso ils skiil lor briiging tlte parties to sotne solution,/ternls in order to achievc the objcct of thc law. No m{tter, if thc att€rDpt fails. Howcver, if the authoriqv considers it futile excrcise dur to visiblc rigid rttitude of the parties or any of them or for !try olher reasoll it ma) hot resort to such atteEpt. (bold e'dded)

1i. Undcr Subsection (l-D) thc applllate authority shall appl). ils mind about the fitness of the casc fol cxercising th! power to allovv.thc tenancy to contilue subject to pa}'Inent of enllanced rim llxed hl.' it. Alier (hat ir may exercise lhe powe6 in a casF considercd fit for that. Thc clJes whGre lhe contror,crsy ot thc sppellatc Jtage relates only or mainlv to tbe rale or aon- pavmcut of the rent call be fit for the exercise of the polv€rs utrdcr Scction 2l(l-D), Thcrr may be the other cuses {lso for exercis€ ol thrse poners by the *ppellale ruthority. I'hu! thr litress of the csses for exercise of lhe powcrs depelds uIorl the facts snd circuusttDces ofatr iodividual case. (hold added)

14.Since the provisions have their sc.hcme thc appcllate Cou[ is ordinaril) to exercise rhe powcrs conl'ened upon it b_v these provisions. Ihe ahsence of an attenlpt to bing compromise nra\ not but the rlon application of mind about thc fitncss of rr case l'or exercised of powers uader subsection (l-D) may v,anant the upsetting ofthe dccision rccord.d on me ts, in thc cases rvhich are fit for exercise ofthal power." (bold added)

42, It is an admitted permission betweeo the parties that these s€ctions u,ere njt pressed in to sei-vice.'l'he question therctbre a ses whethq thcse provisions 01 law are mdndatory and musl be followed by thc Appellant .A.uthority or *,hether they are only dirertory in nature.

43.lt is well setticd law that if the words ..may,, ate used they are otly direct,)ry and not binding whereas if the word ..shall,' is used ir is mandalory and musr be complied with especiatiy ifadverse consequences may follow.

44.In tlle case of Ar.m Khan through G€nerol Attorne), Vs. Muhsmrnqd Hussafu & 5 others 2003 CLC 278, it rvas hcld ar placitum -B', as under;

''(b) S.2l (1-C) [as amcr]ded by Sindh Relred prcrirised (Amendmeflt) Ordinance lXlV of 2t)01)--Provisions of S. l1 ( t- C) ol thc Ordinan,.:e, whether direqtory or nlandalor )L'. Non- compliance of such provisions--Effect--Such provisions atc direclorj in nature &rd not ltraodatorr.----No petrslty, advejs( conclusioo, itrfererce or actiou has been providcd sgailsl an}. part-v or regarditrg conduct oI proceedings for Don-compliancs thereof--Such provisions are required to bc conrplic,l uilh iD lcner and spirit---Appellote Courrs are expected tr) ntakc irnl- attempl to cffecl a compromise betwcen partics---Mere fact of trot settling disputc by litigAnts or. rond ct of pal.lies in not u

{rriving ot a comproorise caonot render an order uf r\pp(llaie Court illegal." (bold odded)

45.The case of Abdul Latif (Supr|) suggests that the use of this secrion is not discretionar)' simplicitor and I find that thsre is somc \ cight, both in conunon ser$e and saving the time of both thc pafiies and the rele\.an( aurhorilies. ilr ttre argument that both Fovisions should bc presscd irto se ice in order to reach q compromise at an eally stage ol the proceedings.

46.However on balarce, hased oo the settled law. I am unable to conclude thal these two scctions arc all but maldatory. If the legislature wanred them to l,rj mandatory theo it would havc made thcm so in clear larguage by using the l\,or,-l "shall" and adding an advcrsc consequence for failwc to comply. lt is ttrc duty of the Coun 10 apply the lalv and not make law. Interp.etation by the Courts is only required if lhe law is unclear and requires interpretatioo. In this case the Iaw is absolulely clear. Namely, lhat the provisions are directory only iD nature.

47.Reliance is placed on thc c.rse of Justice Klurshid ADwAr tshinder V Fcdcration of Pakistarr (PLD 2010 SC ,183) \vhich a larger Bench of the llon'ble Supreme CoLrt found al placiturn (i) as underi "Inlerprelation ol'statures.. - --lntent of framers of law/Corutitution---Detelmirlatir]n--- Principles A firndamental principle of corlsritutional constructio;r has alr,r,ays bren to give effect to thc intenl ol thc liamcrs of the organic law and ol the pcople adopting it. 'l'he pole stor i, t!{e coDslruction of a Constitutioar is thc int€otion of its m{ker3 and adopters. Whe[ the lrngurgc of the statutc is not only plain but adnits of but olle mcsning, the task of interpreiation r:an hardly b€ said to arise. lt is not lllowable to intcrpret what has no Deed of iDtcrpretotioE. Such language besl declores, \riflroua more, lhe iDtcntioo of the lewgivcrc, aud is decisivc of it. Thc rule of coostructiotr is ..to ioteod the Lc.gisl&ture to have meaot whst they havG aclunlly erpressed". It matters !ot, in juch s case, what the .ohsequelces may be. Thereforc, if thc mcaoitlg of the llnguage used in the statute i$ utrambigrous arrd is in accord with justicc and conveliclce, the couns cabnot husy themsrlye! sith suppoled inlrntions, horrercr admirablr thr same may bc, becausq i[ tha( cv€ot they would be travelir:g lrcyond thsir proyince ond legislating for themsrlv€s. l]trt il rhc conlexl ol the provision itselfshows that the meani,lg intendcd \\as somewhat less than thc rvords plainl, seclrl to meaD then the courl must interpret thal ianguage in accordance \.\'ith the indica{ion ()1' the intelti,rD of thc Legislature so plainly given. Thc lirst &nd primary rule of consh'uclion is that ahe irtention of ihe Legislature must be found in the words used by the Legislltnre itsclf. I[ the rvords used are capahle ol oac cunstruclioD only lhen it w{ruld out bc opeD to the courts lo udopr on-r- olhr.r hypotheticll coDstru.iiol! on the grouud that s cb hvpolhrticat corstruction is more consist€[t with tltc allegcd Dbjccl and policy of the Art. The essdnce ol law lics in its spiril, not in its \ll/

lettcr, for the letter is significzurt only as beiog thc extemal mani|station of the intention lhat underlics it. Neveflhelcss in all ordinary cases thc courts fi1ust be cotltent to accrpt fte /iler? /rgir as the exclusive and conolusilc etidence of ll\e sententid legit- 'l hey must, in general, talic it absolulcly for gfturted that the Legislaturc has said uhat it meznt, and mean Bhat jt has s8id. Its scriptunest is the firsl principle of interpretation. Judges ate not c liberty to add 1o or take t'rom or modili the letter oflhc la\\'sinlply because they have reaso to beligve that the tfite senlehlie legis is not completely or coqcctly expressed by it. That is ro sa], in all ordin8ry cases gafimalical interpretation is the sole fomr allowable." (bold added)

48.It is true that when interpreting a statute it must be rcad as a rvhole and no parl of it should bu made rcdundant but in my view making a provision directory as opposed to mandatory does not lr.tre thc provision reduldant as the Corrrt or any concemed party rnay have rccoume to the provision ifit is considcred neccssary.

49.In my view the case ol'Azan Khatr (Supra) is more applicable as opposed to lhal ofAbdul Ir&lif (Supra).Thus, I ftrd S.2l (l) (C) and (D) to be only directory in naturc.

50.Even otherwise, based on the particular facts and circumstances of this case I do not coDsider that it would be fair at this slagc to remand the casc back to thc Appellant authority in order to apply S.2l (l) (C) Bod (D) bcfore procecding further in this matter. This is because the 'fenant himsclf could have raiscti the ground of compromise under S.2l (l) (C) and (D) which he rvas perlectly entitleu to do at the time ofhca ng both the S.l5 Application and his appeal dgainst the Order oflhe Rcnt Controller under lhe S.l5 Applicarion which he ftriled to do.

51.To raise it now at this belatcd stage almost 6 years aller the Rent Contoller's Older under S.l5 during which time the Tenanl hBs had the bendfit ofoccupatiun in my t'ieu' is inequitable ulder the A. 199 discrctionar]' j urisdiclion especially as during this period and prior !o alrd aftcr it the Tenant has beeD pa],ing the rent aI thc rate of Rs. 34.59 tkoughoul Bther than thc rent claimcd b1' the Landlord of Rs. 350 per month. It is aiso significant that these sections werc not refeEed to in the Constitutional Petition uoder adjudication and were or y raised during r'rral arguments which suggests that they are an after thought which have beerr bn)]rglrt up al this belated stage to extend lhe liligation and stave off eviction for a furrher period of time or the expcnse olthc I andlord.

52.The facts and circumstanccs ofthis case also tcnd to suggcst thol ther,: \rould have been little chaocc oI compromise b€tween lhe parlics silce the i-ar,-dlord moved his eviction applicarion under S.l5 rxlder 4 distinc( and separate grounds i.e. (a) he required tie Propcny for his personal Lrse, (b) default ir palmenl ofrcnt

(c)the use of the Prop{rty for use othcl than for which il wa$ let out and (d) qcls ,d

comEitted by the tenant which impaired the matcrial valuc ol the Properly ln @ addition the amount ofrent to be Paid uas also in dispute (I ) (C)'rd (D) that os

53.tt is also signifi cant iII tenus of compro$ise under S 2 l per order sheet dated 24-4-2014 learne'd counsel lor both th' parlies submiflcd thel' lhat compromise talks werc going on betwecn the parties afld accordingll almost 9 rcque$ed for an adjournment. Since this matter has nov, procceded' months afler the onler sheet Dhich refened to an attempled comprolllise' ll i!

apparent lhat dle atlempt at compromise bet\eecn the pa-rties did not bear fruit and thereft're as such in effect S.2l (l) (C) has been compliecl Mth and thcre would appear to be fitue utility in rcferring the maftcr hack to altempt comPrornisc

bet\rycen the pafiies when such attempts in recerrt times have already failed'

54.Thus, not only do I find that S.2l (l) (C ) and (D) is only directory in natute

but bas€d on the paticular facts Bnd circumstances of rhis case il would bc inappropriate, inequitable and most probably an exercise in fulility lo remand the

matter back to th€ lcamed Judge so that he msy apply these sections'

55.Turtrbg to the nert isJue (b) Whether tltc montbly llent should be naid Dt

tho rate ofRS.34.59 or RS 350

56- 1be Rent Contoller in his Order frjund that there \tas no cvidcnce to suggesl that the rent had beeu increased to RS 350 and that the monthly rent remained 34.59 ot 35 pcr month.'lhis issue was uot addressed in the lnrpugned Order and

does not seem to have been seriotNly disputed, if at all' by the Landl'rrd in th'r Impugned Judgmenl,

57.Leamed Courucl for the t,andlord argued thot the rcnl had be€lr incrcase(l fiom RS 34.59 ro RS 150 pcr rnonth ulren the legal notice was scryod on llre Tenant informing him ofhis new T-andlord and that this had been admitted irl Par'r q of the Te[ants writterr statcmcnt. A closc examinaiion of para t however docs not rcveal any such admission rathcr it points to a denial.

58.In my view there appea$ to be no \r'ritten evidence on record to sho\' that thc Tenart had beerl informed lhat his rcnt had been increased to RS ]50 at the time when the l,andlord purchased thc Propeny let alone ony agrecmenl by dte Tcr'aat in writilg to this new increased rent. t he Landlord canDor under S 7 SRPo l9'9 unilarerally iricrca.se the rent ufthe'lenaol on his owrl whims llthc Landlord wa's dissatisfied with the amount ofrcnt ourreDtly b€ing paid by the Tenant his renledy lay in moving thc CootrolleI to fix a fair rent under S.li SIIPO 1979 l\'hich it appears he failed to do.

(zl

59.The case relied upon by the Landlord of M/s. Ali Brothers & others Vs. Nll"s.

Nrushaba Jlbeeo & others 2001 l{LD 648 is therehy distinguished as in tltc present case thcre had been no agrecment on the rate ofrent to tre paid

60.As such I find that tlre renlal payable hy lhc Temnt to the Landlord fnrm dre date of the Landiorrls legal roticc to date to remain al the rate of RS i14.59 per month or in thealtemative RS 35 per month as found by thc Rent (lollector in the Order and upheld in the lmpugtred Judgrnent,

6t. Turni[g to ahe Eert issue ao W[cther the Ront Controller in the Ordcr !trd learned.tudge in thc Impugncd Judgmenl had erred in finding tt$t the I-!trdlord required the Properfy io good Iaith firr his own ocrupation or use.

62.Since this ground stems ditectly from S.l5 SRPO 1979 1br ease of relerence S.l5 SRPO 1979 is set out bclow:

" 15. Applicalion to Controller. (l) Wherc a landlord setks 1o evict the tenant otherwise than in rccordancc wilh seclion 14, h,i shall malie such application to thc Coritroller.

(2)The Controller shall, make an order directing the tenanl tb put tlre landlord in possessio[ ofthe premiscs uithin suoh period as may be spccified in the order, ifhc is satisfied thati ,t- l

(iU thc teErna has failed to pal' rert in rcsprct ol the premiscs in his possession withhr fiItcco days .iter the expiry of lhe period fixed by mrrtuol agreement bctwceD the tenatrt and lrndlord for payrnent of the renl, or ill th€ [bsence of such l .grocBr€ot, ithiD sixty dry$ rfter thc rent lr{s be{oEc due for payqlcnl.

8[Provided that where the applicatioD made by the landlord is on the sole grctund mcntioncd in tlris clause and the tenant on lhe first day ol hearing admits his liability 10 pay the rant claimed liorn him. the Controller shall, if hr. is satisfied thal the ten?urt has not made such clciault on any previous occ{sion and thc default is nl)t exceeding six months, direct I e telant to pa-v rll thc rent claimed fiom him on or belbrc the date lo te fi.lcd for lhc purpose irnd uoon such palmenl. he shall rcject ti,e application.l

(iiD the lenant has, without the writlen consent of lhc lnndlord:--

(a)handed-over the possession of the plemises to somg olher Pcrsor!

(b)used the premises for the pupose other than that for which it \vas let out;

(c)infringed the conditioos on which thc prcmiser was let out;

Ir i

(iv)the tenant has comrnitted such flc1s as ar.l likely to (d impair the material value or utiliry ofthe pEmiscs;

(t, the (enaDt hhs comrnitted such acts as are likely tu impair the material value or ulility ofths prcmises;

(\i) the prernises is required hy the landlord for re- construction or c(ectioll r)f a ile\\'building at rhe sile emd landlord had obtaine,l necL,ssary sanction lb( such recoostruction oa etection ftom rhe authoriry competeni under any law lbr the timc heing in ibrce to give such sanctio0;

(vii)the latrdlord requires thc premises in good faith for his olvD occupatioo ot' usc or for tht occupatioo or usc of his spouscs {rr any of tris children.(bold added)

63.,r\s can be seen each of the grounds mefiioned in S.l5 (2) are separate and indepeDdcnt of each olher. Thus, ifthe L.andlord c.m prove one of these grounds to tbe sarisfactio! ofthe Controllcr ther the Controller may urder S.l5 (2) make an order directing the terlant to put the landlord in possessioo of th. p.emises within such period a.s may be specified in the ordei i.e. evict the tcnont fronr the Properq. The burden of proof shall rest on the Tenant and the standard ofproof will be to the oivil staodad i.e. on the balance ofprobabilities.

64.Both the Rent Controllcr in the Order and the Inrpugned Judgrnent based oo the evidence on recold found that the l-andlotd had prove! thal he rcquired the premises in good faith for his own use.

65.fie main altack on this finding by the Tenant wcre two fold:

(a)lhat the l,alldlord had olher property which he named in which he colld ser up his busincss and thus he had no need to use thc Propcrq,in ciisputc cspeciaill, since he had purchased the PrcFny in 1984 knowing full uell rhar it i..as subjecr to an existints tcnancy and

(b)neither was the Landlord acling bona fide nor did he te4uire the Prope(y ltr his own use. In lhis respect rhe Tcnanl relicd on the affidavit in e\ idence of thc I-andlord's witness Mr. Azam Zahee. Kh \\,ho is ihe real brotiter ofthe landlord *'ho had admifted that the Property wos to bo used lor establishin8 his busirress i.e. Mr. A?am Zaheer IGan and not that ofthe Laldlord and as such the ialdlord did not re{uire the premises for his o*.n occupation ol use ol his spousc or arty cf' his children as per section 15 (2) (vii) as per the rcquiremcnl of SRPO. 197!).'rhc lutdlord had not evcn in his S.l5 Application stated lbr I'har use he rcquired ihe Property which was indicative of thc fact that he had n<.., imention ti: usc ir himself. Fu lermore, the Lairdlord was a I IS Ciliz-en residing in the I IS who had no intention ofusing the Property himself.

66.With regard (o the Landlord haviog other pmperty the Teuant had specilicatly m€otioned (i) S.ky Vie\.Building Bums Road Karachi but addcd that it belongcd to lrum Mozam. Not only is Irum Mozam nol the Landlord but the Tcnar]t failed to produce ally evidence to show that lrum Mozam or the l.ardlord owned thc said hoperty. (ii) House 165 Sector 11 A Norlh Karachi. Agaiu the Tr:narrr ditl

lot produce ar'!y evidoncc to show that this Properl)- was owned by tht Lzu)dlor'l' fr) Even otherwise it is a rssidential prcperty whereas lhe I-al1dlord required thc Propefly in dispute for business purposes i.c to set up a photo copt'ing shop'

67.Wirh re$rd to the Londlord not wanting tll€ I'roperry for his own use the Tenants case hinged on tvo aspects. Firstly the cross exzLminarion ol his brother and seconrlly tlre 1'act that he was a l]S citize[ residiog in rhe l-iS who haLl no intention to retirn to Pakistan 8nd use thc Property himsclf The lcamed Judgc in the tmpugned Judgment deemed the adnrission b1'the brother rs a q?ogBphical enor aod which when read 'rith lhs other evidence that thc [.andlord llad raken substaDtial steps 1o lcove the US and return to Pakistan to run a business tends to suggest that the brothcrs admission was a R?ographical cror and the Iandlord does intend to rctunr to Pakistan alld opeD the business ofa Photo copying shop at the Prop€rty.

68.As the tutbodties set out below sho\4'it is not relevant that rhe Landlord dit, not disclose the use to uhich he proposed to put lhe Prop€rty and once he confirmed on oa$ that he required the Property tor hs own use urriess he wirs shanered oo cross examination on this point his evidencc ol requiring lhe Propedy for his own use would be suf{icient Lo prove th€ grould.

69.With regard to oot disclosing the use i'or q'hich the landlord required the Propefty the tbllowing authorities arc relied upon:

Khawaja lmran Ahmcd Vs. Noor Ahmcd & {rother 1992 SCIUR Il52 \\hcrc it was obsened 3t Plauilum "C as under -

"(c) Sindh Rented Prenrises Ordinarrce, 1971r (XVll of

-- -S. 15--Constitution of Pakistan (1973), Art.l8'-- Landlord's requircmenl ol prcmiscs for his b(tna {iie pelsonal use or for use and occup:rlior of any oi lris spouses or children--Esselltials- -!mbargo--Dlfe.t-- Qucstion whether landlord did not require lhe premiies in good laith could be detemrincd by cross-examiring trim on his afiidavit or anybody else that ho did not require the san1e in good failh--Disclosurc of natut! oI husturts$ which landlord wrnted to do ix the shop prcmises thouglr relevatrt, J.'ct o strt€ment to that 0lTecl iI thc applicrtion, in nbsencc of any ir|ovilir)n iD thc Sindh Rented Prcmises Orditrance, 1979 rcquiriog th', Iandlord to stite the daturc of business, would treither be latal nor csscntial--Any restriction. cven if prolided ty law rvoLrld be hir by An. l8 ol the Conslirution ubich proYides freedom of trade or business or profession sr'bjr.it l lo thc provisions contained in thc proviso to that Article." (bold added) q

Ilst Saira Boi Vs. Syed Anisur Rahman 1989 SCMR 1366, which obserred ai (,9 piacirum 't" as under:-

"(c) Sindh Rented Premises O'dirance' 1979 (Xvll of

1979F

---S.15-Bona fide pr:rsonal tequircnlc$t tbr use ol propedy-Landlord has to state in his application' thc inalcrial facts i.c. facts which constitulc oaus( 41 ilction alongl,ith those tacls which prima facie showeil llui requirement was according to law i!1d w&s madc irl good faiih-t,andlord rras not roquired to $trte the nature oi busitres.s which be iDtctrded to carry on as sanle $as treither essenti|l nor formed part of causc uf action ' (bold added)

Shakeel Ahmed & ittother vs- Muhammrd Tariq !'orogb & otbers 2010 SCMR 1925, which observed at placitum "c" as underr- "(c) Sindh Rented Premiscs Ordinanoe, 1979 (XVll ol neld oi --S. 15--Ljeclrnent petition---Bona fide p€rsonal shop lry landlord--Proof---Selection of busincss and reoted landlord--Scope.

Selectioll of busiocss is the sole prcrogltivc of lhc lardlord so also choi(e ol rented shop, if having morc than oDe, therefore, Do rectriclion calr bc imposcd upon latrdlord.(bold addcd)

70.For the proposition that the Landlords word on oath thot he requires th'- Prop€rty for his o\l.n personal use whicb is trot slut(ered in cross examination i'l

sufticient to Fove this ground:

trE lhe case of Shakeel Ahmed & anotbcr Vs. Muhammad 'fariq Farogb tl others 2010 SCMR 1925 the llon'ble SupreDe Court obseffcd at placitum "d" as under:-

(d)Sindh Rented Premires Ordiiall(e. 1979 (KVll o1 l9'19)--- --S.1s---Fjsctment pctition--Bona fitle personal necd ol dernised sh<rp by landlord---Prooi:-Prittciples. For se€ki[g cr'ictioa of a lenant froEd thc reBtcd shop, the oDly requiremeDt of law ir tbe proof of borla fide need by the laudlord, which sliinds dis.harged ':hc rtrorncltt be appeari in lbe Eifuess bo\ and lnakqs slach stalement on oath or in the fonn of aD ttilidavit-io- cvidence as prestribcd by law, if it remains urshatter{,tl in cross-cxrmitratioD alrd utr-rcb(tted io the er'idtrtct adduced by thr opposite party.(bold added.) h is oot thc .equirernent of law that the la lor,l. in order {o prtrve bona fides of hjs personal need. sLall ircep hinrsel[:way fror sll sorts of incorr'e leneratrng (en.u.es or to keep himsell idle as long as the falc of hiri ejcctmer! case. which mal' ounsure year and years logetht,r. is fina1ly decided b! the Clourt.(bol(l rdocd) y,,'

la

lrl ? i. .\s a consequence ofthc above discussion fie'lenad h''s been unablc to prove than in good rf,] m8la.6des on tbe patt ofthe Landlord and thal he acled olherwise as illustraled b) iiirh. The use to which the Landlord proposes to put the Proportv rhe above case law is not relevanl and thc Lalldlord did make such a state ont ol

oath which rcmaincd unshattered in cross examinatiofl as alluded to in the case of

Shakecl Ahmed & auother (SuPra)

72.Thus, I find that lhe leanled Judge in the Impugncd f)rder has correclly held

good faith for his that the Landlord has proven that he requfues thc premiscs in

73.As such having up held the Impugned Judgment o[ this ground itlonc the

eviction order is ttpheld

74.However by way of completeness I will now tum to the final issue whether th€ leamcd Judgc in the Impugtrcd Judgmctrt hrd srred in fiiding that lhc

Telsnt hrd hiled to pay r€nt to the Latrdlord withir 60 days a{ter it becamt due.

75.In tems of method of payment o[ rent this is dcalt \\'ith uoder S l0 ard irr padicular Sl0. (3) SRPO 1979 S.10 provides as under:

"10. Paymenr of Rent. (l) The rent shall, in the absence c'f any dale lixed in this b€half by mutual agreement betw''en thi luullorl and tcnru1t, bt Paid rrot later than th'] tcnth of the month next iblloqing the moqth whicir it is due.

(2)The rent sh{ll, as far as lnay bt' be paid to the htrdlord, who sball lcknowl€dgc receipt thercof ir writing. (bold added)

(3)Where the laudlord has refuscd or rvoidcd tt r.ccpt the re[t, it may be seDt to him b)-. postal nlot)c)' orrlei or, by deposited with the Controllcr uithin v'itosi: juisdiction the premises is situated.(bold added) (4)'lhc written ackflo\rledgement' posta] moaei order rcceipt or reccipt of fie (lortroiicr. as thc case ')'u)r be, shall be produced and acceptcd in proof r.f fie nay'Ircni ofthe rent:

Providcd that nothing conlained in this s€ctiorl slral] apply fu the cases pcnding before thc controllers on the commencement of lhis Ordinance."

76.At this Juncrure it is of assistance lo r€produce below tire finding 'rf thc Rent conholler on this issue which he dealt with at issue No3 oi the order aller the recording ofevidence.

W

"lssuc No..l.

Nou coming to issue No.3, I h('ld that tlle opl')onelll is a willlul rtefauitcr in thc payolcnt ol rclrt r)1' the delnisecl premises lirr the follo. ing reasons.

The oPPoncnlad lits ro have t';':eivecl n'riice dateil 10.7.1984 scnt to him b)'lhe advocate for the :'pplicant rntbnring him about the puchase ofrhe dernjscd prelnise; on 27 i'1984 anJ requiring him to pay re of the demised prenrises to tlx: uppti"*i'" rerrt colloctor within a morrth. lnstearl of payitrg rent dom the dale of purchase viz:2'7-5.1984. rhe oppon'nt admilted relrt on 25-8.1984 ainounting to Rs. 105/- for threc months tic'm August to October, 1984 at the rate ofRs. i5i pm, lhus the optonent deliberately ciid not pay rent for the p€riod ftoli zi.S.tqfa to 10.6.1984. l'alment of lesser aNount of rent is als') u,illful tlefault as hcld in 2001 \41-D 684. \'loreover' irregular pa]-merrt of rent $ould rlot save tle opponent {ioln corlscqLrenccs nf d"lul,,lt u. hehl in 1986 CLC ?2fr. 'Ihc opponcnl had starttd irregularly depositi[g rcrt of the demtued premises io MRC Ifo.JffSn sSa rt the rBte of Rs.35/- p-m. from July, 1984 sfter delay of more th:.o 3 to 6 EoDths us it clc:rr fro {he bir' perussl of rent r€ceipts Er.s. o/8 to Erh.o/64. (bold added) 'lhe applicant \,,as not aware ofdeposiL ol rent in Couri h) the opponenl &s adtnitted hy the opponent in itis cross that hc 'loes n"t knorv that noticc of MRC (ll38"l9tJ4) was scnt lt' tit: applicant. The opponcnt has, theretbre, clearl) \iillfulh delarhed iniimely payment of rent ofthe demised premiseJ to th(: applicant' As statcd;bove, the opponent l'ailcd to pay rerrt to the applicart for the period ftom 27.5.1984 to 306.1984, and rhan irrcgularl)' deposited rcnl h MRC rr-o 3138/1984 without noticc to the applicant beyond the pennissible period of 70 days. It hr's becn lieid in 1994 SCIUR 1507 (2) that payment i deposit in tli: urs:, belond ?0 days is default. fhe applicant has claimed llt aream of rent liom 25.7.1984 when he bec.me orvner ol the denrised premiscs. He instituled this rent cirse on 06.7 f006. He at dlc best is entillrd lo rccover aoears of rcnt at the ratc of lls.3i/- p.rn. Ior a period of 3 years prior lo filing lhc rent casE and till th(r vacant possessioD ofthe premises to the aPplicant.

l-or rhe reasons discussed abovc, I ansu'er the issur: No.J il Ihe atJirmative, by hc,ldiug that thc opponcnt has willtull-v defaultcd in the payment ofrenf to lhe applicant."

77.The Impugned Judgment in cooneclion with delault ol rent lhurd as rrli(el "As regards. the point of dc{ault, it is an admilted position on lh$ .ecord, that the oppellant had received the iorice daled 10.?.1984 sent to bim by the advocate for the respondent inlonrling him to pay the rent of the demised to the rcspofldenl's r(nt collectot wirhin a month. As per orvn saying olthe aplellant' h(' scnt reni otr 25.8.1984 amounting to Rs.l05/ for tkee rnonlhs liltn Augu:t lo October, 1984. insread Eom fie datc ol purchase i.c. i 7.5. I 984 and failed to make the paymelrt of rent lbr a Fericd fiol;r 27.5.1984 to 10.6.1984. As such, $e findings of thc leamcd Rent (l('ntroller, lhile hotding that appellant committcd willtirl default is proper in the perspective tlfrelevant provisions of law. thus not.equires an) inlerference."

va

78.ll is ro be noted thal there is a ma.led distinctioi betwecn S.10 (l) conccmi g the dat€ when rcDl is to hc paid (eilhcr a date by mutual agreement o{ otherwis€ by the lou' of each month) and the requiemenl ofpayment ofRcnt uhder S.15 (2) (iD SRPO 1979 (within fifteer days aftcr the expiry of thc agreed date foi payment or in the ablensc of such agreemeot, within sixty days after the rent has become due for palment) so as lo \+arant evictio! of the tenaot ur)der tha! section. By way ofcomparative analysis bolh lhe sections are set out helow:

"S.10. Payment of Rent. (l) The rcnt shall, in the absence of any date fixed in this behalf by mutual agrcemenl. bctween the la.rldlord and tenanl, t'c paid uot later than the terth of thc month next following tle mooth which it is due.

S.15 (2) The Controller shall, makc arr ordcr directing the tcnant to put the landlord in possession of the premisos wjthin such period as nlay be specified in the ordcr. ifhe is satisfied that-

the teoaDt has failed to pay rcnt in rerprct of tbe premises in his possessioD *ithin fifleen days after the expirr- of the period fited by mutunl agre€mcnt between thc t€trant a d lrtrdlord for pryDeDt of the r€tri or itr the absetrce of such {gr€emcnt, withir $ixty dsys after the reDt hss become due tb. paymert. (bold added) (ii) [Provided that where the applicatiolr madc by lhe lalldlord is on the sole ground mentioned in lhis clause zuld the tenant on lhe llrst day of hearing admits his liability to pay the renl alaimcd trlom him, the Controllcr sholl, if he i:, satisfied that the tenant has nul rrnde such dcfault on ony pre.rious occasion ard the delault is not exceeding six mooths, direct the lennnt to pay irl! the rent clairnccl from him on or beforc the date to bo lixed for the purpose :urd upon such payment, he sh8ll reject thc application.l

79.'lhe longer gr-ac€ period which the Tenant is permitted in S.15 (2) (ii) SRPO 1979 in which to pay the rent would scem to b€ on accourrt of the harsh co[sequences which may follow based on a S.15 applicarion rvhich piaces reliance on S.l5 (2) (ii) i.e eviction of the tcnant for default in paying the rent.

80.According to the Tenant he immcdiately attempted to pay the monrhiy rellt r.)

I the Landlord oll receipt of the legal notic€ ou 10-7-1984 through the Landlords Rent Collector Mr. Haroon who refus€d to acqept the safie. Ilowcvcr this alsenioD is to a large extcnt belied by his admission that hs d0posited rent up Lo 3l-7-1984 afier receiving the lcgal notice in rh€ IVIRC No.79ll 1968 in lhc namc of the previous Lr]rdlord. At lcasr a part of this rent ought to have been paid dirErtly to thc currcnt l-andlord who had served legal notice on him or to Mr, Ilarcon rather than being paid at th( fiIsl irrsrance into the [,iRC account of the previous Landlord.

Y,5

81.Furthermore, rhe l-anrllord in his evidencc denied rcl'using k) accept the rent w wbich according to hinr rhe Tenanr deliberately and intentiondly failed to pay him. Significandy Mr.Haroon who was the l^antilord's rent roll€clor was not called as a wiuress by the Tcnant to coroburate the Tenaols veision ofcvents that he immediately paid rhe renr to thc Landlord or himself (M..Haroon) on ruceipt of the legal notice. As such the Temnt failcd to dischargc his burdeD of proofto tl{ required stafldard that he had attempted to pay the Landlord or his renl collector (Mr.Harcon) ad they had rcfused to accept the sanc.

82.In this respect the case of Huji Qrim through Lcgal heinr V Syced Rxhinr Shrh (1999 MLD 1014) is relevant which found at placitum (a) as mder:

'-*S. ls--Order fol deposit c,f rcnt in the Court. Default-- -Tcnant had commitred the default technicelly, as he had been deposited the r€nl in the Court in case of a miscellancous rent case---Tenant, in circumstanccs, had also to provc refusal on the part of tirc landlord which required the cvidence of the poslnran--Postmtui having .oi been examined by the tetra[t, there wa-.: no rl]asorr to takc excsption with tle order of fie ReIt Controller, rrdcritg ej€ctncot of the tcnanl."

83.The Tenant on receipt ol thc Legal notice as per S.l0f3) should havr: immediately attempted to pay the rcnt directly to the Landlord or his rcnt collector and only then on tlrcir,,'his refusai att€mpl to pay either by postal molley order to Mr.Haroon or deposit &e amount in the MRC.

84.In this respect in case of Mst. Yauecn l{hao Vs. Abdul eadir & &nothu 2ffi6 SCMII 1501, the llon'blc Supreme Cou( found at placitum ../\', as lbllowsr "--Ss. l0 & 15 (2) (ii) ---Default iD paymenr of renl for orlc month--Dirccl deposit oI lrnt in Coun withour lillt tendering same to lardlord and then on his refusal ro accepr sarre or issue receipt, remitting same thrrrugh mo!.ty order, -Effeut--Such would be a wiilful and dcliberate I'ilault i,r paymcrt of reDt on lhc part of tenarlt. wlrich co;rl-l r.rot be termed to be tcchnical default."

85.Reliance is also placed or PakiltaE Statc Oil CoEpsry l,td. Ktmchi Vr. Pirjec Muhaomad Nrqi 2001 SCMR I140 where the Hon'ble Supremc Couil found at placitum "b" as uoder:-

O

''tb) Sindh I{ented Prcmises Ordinancc. t97S (X\'ll Gf 1e79)-.- ---Sc.l8 & l5(2(ii)--Default in payment ofrcnt--Chang' in orvnership---Delault in laynrent uf rcnt wa\ a rerio'Js / ma(er becouse it abridged tLe right of (lre iandlord which \ras to be ptotected Linking of rhe cxemptioo of a tenr],:1l under S.18, Sindh Rented l'remiscs Ordindncc, 1971' l'rith S. i5 (2)(ii) ofthe said Ordinance makes a complctd whole for rot iransgrussing the statutory prc'rision rega[ding defau.lt in that an,4hing not done by the conccrned porty to absohe i6elf of the rcsponsibility undcr the statutc will surely lead to the specified tesults, i e. rtraking of ar'' order or ej;ctment on lho ground of default whiuh could nor' be deemed to be techflical in natu.rc--v'hen dclirult was proved lo have beeu uillful, deiiberate contumacioN and nor technicat in nalurc. ejectment of telant $ould b€ wananted--Findings recorded by lhe High Coun beinp duly supported by the evidence on record and thcre beirtE, no misieading or failurc to consider thc same' Supremc Court declined interfcrence."

86.That on the evirlence on record I do not consider that there haLs heen a misreading or non reading of evidence cilher hy the Rent (bntoller iI thc o'rdcr

or by the leamed Judge in the ImPugled Judgment on the qucstion of willfirl default.

87.Thus, with regard to the Iinal issue I find that this is a case ofwillfrrl delhult o1

rent so as to affact the provisions of S. i5 (2) (ii) Szu'O 1979

88.As noted eartier due to the narrow scope of such Petitions ir wlit urisdiijt lon j

6nd the facr that it has been proven that the Landlord undcr S 15 (2) (vii) SR-P()

1979 does require the Property in good tlith for his own usc snd thal this is a ':as':

of wilfill default itr the paymert of rent by the Tenant attractittg the prorisionr of S.15 (2) (ii) SRPO 1979 and as such there eEe flo blatart or glaring errors by the lower Couns in their respective Order and lmpugncd Judgment I uphold Lhe lmpugned Judgment afld dismiss the l'ctition

Dated: l( l'ZotL

r' d

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