Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. S – 897 of 2010
Constitutional Petition No. S – 799 of 2010
Shell Pakistan Limited : Petitioner in C.P. No.S-897/2010 and
respondent No.2 in C.P. No.S-799/2010
through Mr. Muhammad Umar Akhund
Advocate.
M/S Quality Service Station : Petitioner in C.P. No.S-799/2010 and
respondent No.2 in C.P. No.S-897/2010
through Mr. Rahim Junejo advocate
holding brief for Mr. Muhammad Anwar Tariq Advocate.
Rana Azhar Ali Khan
through his legal heirs : Respondent No.1 in both petitions
through Mr. Sarmad Hani Advocate.
Vth Additional District Judge
Karachi East : Respondent No.3 in both petitions.
VIIIth Rent Controller
Karachi East : Respondent No.4 in both petitions.
Dates of hearing : 14.03.2019 and 01.04.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Rent Case No.482/2001 filed by one Rana Azhar Ali Khan, respondent No.1 in both these petitions, for eviction of Shell Pakistan Limited and M/S Quality Service Station, petitioners in C.P. Nos. S-897/2010 and S-799/2010, respectively, on the ground of default in payment of monthly rent in respect of land measuring 1,666.67 sq. yds., bearing Naclass No.171, Block 13-C, main University Road, Gulshan-e-Iqbal, Karachi (‘demised premises’), was allowed by the learned Rent Controller vide judgment dated 20.11.2003 by directing them to hand over vacant and peaceful possession thereof to respondent No.1 within four (04) months. First Rent Appeals No.16/2004 and 162/2004 filed by Shell Pakistan Limited and M/S Quality Service Station, respectively, against the said order of their eviction were dismissed by the learned appellate Court through the impugned consolidated judgment dated 12.07.2010. FRA No.162/2004 filed by M/S Quality Service Station was dismissed mainly on the ground that it was barred by limitation. The above concurrent findings of both the learned Courts below have been impugned by Shell Pakistan Limited and M/S Quality Service Station through these Constitutional Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which were heard together and are being decided and disposed of through this common judgment.
2. Before the Rent Controller, it was the case of respondent No.1 that Shell Pakistan Limited was his tenant in respect of the demised premises by virtue of Deed of Lease dated 30.06.1999 at a monthly rent of Rs.54,000.00 which was to be increased at the rate of 8% per annum. It was alleged by respondent No.1 that default in payment of monthly rent was committed by Shell Pakistan Limited in the following manner :
June 1999 to December 1999 – Default / delay in payment of rent, not paid within the time stipulated in the agreement.
January 2000 to July 2000 – Default – Increase of 8% not paid, original rent was paid beyond the agreed time and remaining amount on account of 8% increase was paid after committing default.
August 2000 – Not paid / default.
September 2000 – Default as it was paid on 31.01.2001.
January 2001 – Default – Increase of 8% not paid.
February 2001 – Not paid / default.
April, May and June 2001 – Not paid / default till the filing of rent case.
M/S Quality Service Station was joined by respondent No.1 as opponent No.2 in his rent case on the ground that possession of the demised premises had been handed over to them by Shell Pakistan Limited for running a petrol pump. In the above background, the above rent case was filed by respondent No.1 against Shell Pakistan Limited and M/S Quality Service Station for their eviction on the ground of default in payment of monthly rent.
3. The eviction application was contested only by the petitioner Shell Pakistan Limited by filing written statement wherein default was denied, and it was pleaded that respondent No.1 was required to get the Deed of Lease registered and rent as well as the annual increase therein at the rate of 8% was payable to respondent No.1 only after its registration ; and, for the purpose of remittance of rent, Shell Pakistan Limited had asked for the relevant information regarding the bank account of respondent No.1, but the latter did not provide the same. The fact about handing over possession of the demised premises to M/S Quality Service Station was admitted by Shell Pakistan Limited in paragraph 9 of its written statement. It may be noted that despite the above stance, it was admitted by Shell Pakistan Limited in paragraph 4 of their written statement that monthly rent was increased. Since M/S Quality Service Station did not file written statement despite service through courier and bailiff, the matter proceeded ex-parte against them.
4. An application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’) was filed by respondent No.1 in his above rent case praying that the petitioners be directed to deposit the arrears of rent as well as future rent in Court with 8% annual increase therein. The said application, which was resisted only by Shell Pakistan Limited, was allowed by the learned Rent Controller vide order dated 18.04.2002.
5. In view of the divergent pleadings of respondent No.1 and Shell Pakistan Limited, the learned Rent Controller framed two points for determination viz. “(1) Whether the opponent is willful defaulter in respect of rent ? (2) What should the order be ?”. Respondent No.1 examined himself and he produced several documents in support of his case, whereafter he was cross-examined by the counsel of Shell Pakistan Limited ; and, Shell Pakistan Limited examined their authorized representative who also produced several documents and was cross-examined by the respondent No.1’s counsel. After evaluating the material on record and hearing respective submissions of the parties, the eviction application was allowed by the learned Rent Controller by directing the petitioners to hand over vacant and peaceful possession of the demised premises to respondent No.1 within four (04) months. Against their said order of eviction, both the petitioners filed separate appeals which were dismissed by the learned appellate Court through the consolidated impugned judgment by maintaining the findings of the learned Rent Controller. As noted above, the appeal filed by M/S Quality Service Station was dismissed mainly on the ground that it was barred by limitation.
6. I have heard learned counsel for the parties at considerable length and have also examined the material available on record with their assistance. Record shows that the averments made and the ground urged by respondent No.1 in his eviction application in relation to default in payment of rent had throughout remained consistent and the same were further reiterated by him in his evidence, which could not be shaken in his cross-examination. On the contrary, there was a clear contradiction in the statements made on oath by Shell Pakistan Limited in their written statement and evidence, and certain important admissions were also made by their witness in his cross-examination. The witness had admitted that initially the rate of rent was Rs.50,000.00 per month, but it was increased to Rs.58,320.00 per month with effect from January 2000 and to Rs.62,986.00 with effect from January 2001 ; rent for the period January 2000 to July 2000 was paid at the rate of Rs.54,000.00 per month ; on three occasions, it was admitted by him that the rent of the demised premises had been increased at the rate of 8% per annum and it was increased at the said rate with effect from January 2000 and January 2001 ; the deficient amount of rent for the period January 2000 to July 2000 was paid vide cheque dated 10.10.2000 ; and, Shell Pakistan Limited did not file miscellaneous rent case (MRC) for deposit of rent in Court even after filing of the eviction application.
7. The above admissions by the witness of Shell Pakistan Limited clearly support the case of respondent No.1 that default was committed by Shell Pakistan Limited as the monthly rent as well as the 8% annual increase therein were either not paid by them within time or were not paid by them at all. The said admissions also negate the plea taken by Shell Pakistan Limited in their written statement that the rent as well as the annual increase therein at the rate of 8% was payable to respondent No.1 only after registration of the Deed of Lease. By paying the rent and the 8% increase therein to respondent No.1, Shell Pakistan Limited had not only accepted the terms and conditions for payment of monthly rent and the annual increase therein, but had also waived their right to raise any objection in relation thereto. It may be noted that rent for the period April 2001 onwards was deposited in Court by Shell Pakistan Limited after passing of the above mentioned tentative rent order dated 18.04.2002 which also constituted default on their part. This important aspect was specifically noticed by the learned Rent Controller in the eviction order dated 20.11.2003 and also that upon refusal by respondent No.1, as alleged by Shell Pakistan Limited, rent was not deposited in Court by Shell Pakistan Limited by filing MRC.
8. The eviction application was filed by respondent No.1 on the basis of Deed of Lease dated 30.06.1999 which was for a period of 20 years, and according to the said deed rent was payable by Shell Pakistan Limited in the first week of every following month. It was contended on behalf of Shell Pakistan Limited that respondent No.1 was required to get the said deed registered and as he did not get it registered, the terms and conditions thereof were not binding on the parties. In this context, it may be noted that Section 29(c) of the Stamp Act, 1899, provides that in the absence of an agreement to the contrary, the expenses of providing the proper stamp shall be borne by the lessee or intended lessee in case of a lease or agreement to lease. It may further be noted that no evidence or material whatsoever was produced by Shell Pakistan Limited before the Rent Controller to show that there was an agreement between the parties that respondent No.1 / lessor was obliged to arrange for registration of the said deed or to pay the charges / stamps in relation thereto, and there was no provision in this behalf in the said deed. Therefore, under Section 29(c) ibid, it was the responsibility of Shell Pakistan Limited to get the said deed registered and to bear the expenses in respect thereof.
9. Under the said deed, Shell Pakistan Limited was obliged to tender monthly rent in the first week of every following month. However, if their contention that the terms and conditions of the said deed were not binding for lack of its registration is accepted for the sake of argument, then under Section 15(2)(ii) of the Ordinance Shell Pakistan Limited, as a statutory tenant, was required to tender monthly rent within sixty (60) days after the rent had become due for payment. The admitted position discussed above shows that monthly rent was not tendered by Shell Pakistan Limited either within the period stipulated in the deed or within sixty days from the date when the monthly rent became due and payable. Thus, in either case Shell Pakistan Limited had committed default in payment of monthly rent.
10. It was next contended by learned counsel for Shell Pakistan Limited that they paid an amount of Rs.2,312,500.00 to respondent No.1 at the time of execution of Lease Deed dated 30.06.1999 towards its registration charges / fee, and as the said deed was not registered, the entire said amount was liable to be adjusted by respondent No.1 towards monthly rent of the demised premises. It was argued by him that due to the above reason, there was no default on the part of Shell Pakistan Limited and findings of both the learned Courts below on the issue of default were incorrect. On my query, it was frankly conceded by him that no such plea was taken by Shell Pakistan Limited in their written statement, nor was any issue framed in respect thereof, nor was respondent No.1 confronted in his cross-examination with any such proposition. Learned counsel, however, stated that Shell Pakistan Limited had filed an application before the appellate Court praying that they may be allowed to adduce additional evidence in relation to the fact that an amount of Rs.2,300,000.00 was received from them by respondent No.1 as premium till the year 2017, which application was dismissed by the learned appellate Court vide order dated 24.05.2008. Copies of the above application, objections filed thereto by respondent No.1 and the above order of its dismissal were filed by him during the course of hearing along with a statement. According to him, the above application was wrongly dismissed by the learned appellate Court.
11. It may be noted that it was stated by Shell Pakistan Limited in their above application that at the time of execution of Lease Deed dated 30.06.1999 an amount of Rs.2,300,000.00 was received from them by respondent No.1 as premium till the year 2017, and not that an amount of Rs.2,312,500.00 was paid by them to respondent No.1 towards the registration charges / fee of the said deed. However, perusal of the aforesaid order dated 24.05.2008 shows that the said application was dismissed by the learned appellate Court on the ground that such plea was not raised by Shell Pakistan Limited in their written statement and as such they could not be allowed to raise a new plea in appeal. In their above application, no reasonable explanation or justification was disclosed by Shell Pakistan Limited that in spite of reasonable care and due diligence why the material in relation to the above mentioned amount allegedly paid to respondent No.1 as premium till the year 2017 was not produced by them before the Rent Controller, especially when they had the full opportunity, but they elected not to avail it. I am of the considered view that the above finding of the learned appellate Court is in accord with the well-settled principles briefly discussed in the following paragraph regarding production of additional evidence at the appellate stage.
12. Rule 27(1) of Order XLI of the Code of Civil Procedure, 1908, the scope whereof is limited, contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional oral or documentary evidence. Such circumstances / conditions are, (a) where the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted, or (b) where the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or (c) for any other substantial cause. Admittedly, the case of Shell Pakistan Limited did not fall under Rule 27(1)(a) as they neither attempted to produce any material before the Rent Controller to show the alleged payment on account of premium till the year 2017 nor did the Rent Controller refuse to admit any such material in evidence. Regarding Rule 27(1)(b), it may be noted that the learned appellate Court was not of the view that the evidence sought to be produced by Shell Pakistan Limited was required by the appellate Court itself to enable it to pronounce judgment. As far as the question of ‘substantial cause’ mentioned in Rule 27(1)(c) is concerned, needless to say it depends upon the facts and circumstances of each case.
13. The language used in Rule 27 ibid clearly indicates that the first appellate Court could take additional evidence only if after examining the evidence produced by the parties it comes to the conclusion that the same was inherently defective or insufficient, and unless additional evidence was allowed, judgment cannot be pronounced ; and, only such additional evidence can be permitted to be brought on record at the appellate stage which is required by the appellate Court itself for final or conclusive adjudication in the matter, or for any other substantial cause. It follows that additional evidence can be allowed in appeal when on examining the record, as it stands, an inherent lacuna, defect or deficiency is not only apparent, but is also felt by the appellate Court. The sole criterion as to whether additional evidence should be allowed or not depends upon the question whether or not the appellate Court requires the evidence “to enable it to pronounce judgment or for any other substantial cause”, as to which the appellate Court is the sole judge as the need for additional evidence must be felt by the appellate Court itself. In such an event, the appellate Court may allow additional evidence either on an application by any of the parties or even suo motu. Thus, it can be safely concluded that the expression “to enable it to pronounce judgment” means to enable the appellate Court to pronounce a satisfactory and complete judgment ; it certainly does not mean that additional evidence should be admitted in appeal in order to enable the appellate Court to pronounce judgment in favour of a particular party. Thus, the provisions of Rule 27 ibid can be legitimately invoked by allowing additional evidence only in cases where it is impossible for the appellate Court to pronounce judgment on the basis of the evidence available on record. These views expressed by me are fortified by (1) Parshotim Thakur and others V/S Lal Mohar Thakur & others, AIR 1931 Privy Council 143, (2) Mad Ajab and others V/S Awal Badshah, 1984 SCMR 440, (3) Muhammad Siddique V/S Abdul Khaliq and 28 others, PLD 2000 SC (AJ&K) 20, (4) Taj Din V/S Jumma and 6 others, PLD 1978 SC (AJ&K) 131, (5) Nazir Hussain V/S Muhammad Alam Khan and 3 others, 2000 YLR 2629 [SC (AJ&K)], (6) Abdul Hameed and 14 others V/S Abdul Qayyum and 16 others, 1998 SCMR 671, (7) Nazir Ahmed and 3 others V/S Mushtaq Ahmed and another, 1988 SCMR 1653, and (8) Mst. Jewan Bibi and 2 others V/S Inayat Masih, 1996 SCMR 1430.
14. The above argument made on behalf of Shell Pakistan Limited viz. adjustment of premium or registration charges / fee towards monthly rent, cannot be accepted ; firstly, as no such plea was taken by them in their written statement before the Rent Controller and as such the same cannot be allowed to be urged in these proceedings at this belated stage ; secondly, no such suggestion was made to respondent No.1 in his cross-examination ; and lastly, there is a clear contradiction in the above stance taken by Shell Pakistan Limited as in their instant C.P. No.S-897/2010 it is pleaded by them that the said amount was received from them by respondent No.1 as “lease premium”, whereas it was argued before me that the said amount was paid by them to respondent No.1 towards registration charges / fee of Lease Deed dated 30.06.1999.
15. In order to justify the default in payment of monthly rent, it was also argued on behalf of Shell Pakistan Limited that respondent No.1 had refused to accept monthly rent from them. If this was the position, they were required under Sub-Section (3) of Section 10 of the Ordinance to tender monthly rent to respondent No.1 through money order and in case of refusal by the latter, they were further required under the said Sub-Section to deposit the rent in Court. However, no such attempt was made by them which fact was admitted by their own witness in his cross-examination. This fact further fortifies the position that default was committed by Shell Pakistan Limited.
16. It is well-settled that concurrent and well-reasoned findings of fact cannot be called in question in the constitutional jurisdiction of this Court unless there is any jurisdictional defect or misreading or non-reading of evidence. In my humble opinion, respondent No.1 had successfully discharged his burden in proving that Shell Pakistan Limited had committed default in payment of monthly rent, and the petitioners had not only failed in dislodging his claim or in proving him wrong, but the default was also admitted in his cross-examination by the witness of Shell Pakistan Limited. Learned counsel for the petitioners have not been able to point out any jurisdictional defect, misreading or non-reading of evidence by the learned Courts below or any illegality or infirmity in the impugned judgments which are based on proper appreciation of evidence and sound reasoning. Therefore, the concurrent findings on the issue of default by both the learned Courts below do not require any interference by this Court. Regarding dismissal of FRA No.162/2004 filed by M/S Quality Service Station, the petitioner in C.P. No.S-799/2010, there is no infirmity or illegality in the impugned judgment of the learned appellate Court as the said appeal was admittedly barred by limitation. In view of the above discussion, both these petitions must fail.
17. Foregoing are the reasons of the short order announced by me on 01.04.2019 whereby both these petitions and the applications pending therein were dismissed with no order as to costs. Petitioners are directed to vacate the demised premises and to hand over vacant and peaceful possession thereof to respondent No.1 within sixty (60) days from the date of this judgment.
_______________
J U D G E