ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Const. Petition No.S-218 of 2009
Date. ORDER WITH THE SIGNATURE OF JUDGE
Petitioner Muhammad Idrees Qureshi through Mr. Latif-ur- Rehman Khan Survery, for the petitioner.
Respondent No.1 Muhammad Kashif Khan through Mr. Zayyad Khan
Abbasi, for the respondent No.1
Date of hearing 30-5-2009
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MUHAMMAD KARIM KHAN AGHA J., The Respondent No.1-landlord filed an application under Section 15 of Sindh Rented Premises Ordinance 1979 (“Ordinance, 1979”) in the Court of Ist Rent Controller and Assistant Sessions Judge, Karachi, (Central) for the ejectment of the Petitioner from the property bearing shop No.2, New Chand Market, Quarters No.22, 24 and 26, Block No.131, Sector 5-G, Sindhi Hotel, New Karachi, Karachi. (hereinafter referred to as the “suit Property”).
2. The main points in dispute were whether opponent No.1 had committed willful default in payment of monthly rent from April to August 2006 and whether the opponent No.1 had illegally sub let the suit Property to the opponent No.2 (the Petitioner in this case) without the landlord’s consent.
3. By order dated 30th July 2007, (“the First Impugned Order”) the learned Judge had given the findings in affirmative on both the points and ordered the opponents to vacate the suit Property.
4. The Petitioner, who was opponent No.2 in the First Impugned Order, being dis-satisfied with the First Impugned Order, filed an appeal against the same before the Ist Addl. District Judge, Karachi, (Central) in FRA No.182/2007. The Petitioner/appellant had taken the following grounds in the First Appeal as under:-
“The learned Counsel for the appellant has argued that the findings of the trial Court are based on no evidence, ignorance of material evidence, consideration of immaterial evidence, arbitrary exercise of jurisdiction, perversity or material irregularity in conduct of proceedings causing palpable injustice to the Appellant. That trial Court has not taken into consideration the material brought on record by the Appellant and has rendered the impugned Judgment on extraneous material. That the trial Court has erred in holding that the appellant is sub tenant and the Rent Controller has not considered that the appellant had filed a Civil Suit No.711/2003 in which not only the present owner but also the original/previous owner from whom the appellant was inducted as tenant and respondent No.2 was party. That trial Court has not considered that the connivance of the respondents, who malafidely issued receipts in the name of respondent No.2 and trial court has not considered that the cause of action on which date arose and on which date he came to know about the sub letting and/or the trial Court has failed to consider the principal of waiver. That trial Court has not considered that the rent had been deposited in MRC No.242/2005 much before the filing of the present rent case and also failed to consider that the appellant is doing his business in shop in question since 1975.”
5. After hearing both the parties at length, and perusing the documents as well as evidence on record, which led in to the First Impugned Order, the learned trial Judge in the detailed order dated 14-10-2008 (“the Second Impugned Judgment”) dismissed the appeal of the appellant/Petitioner.
6. This Constitution Petition is filed against the Second Impugned Judgment. The main grounds of the appeal are as under:-
a) That the impugned Judgments/orders are against the evidence and both the Courts below have failed to consider the evidence and/or record of the case.
b) Both the impugned Judgments/orders are misreading and misconceiving the records.
c) That both the Courts below have failed that since 1975 the petitioner is in possession and carry his business and is submitting Income Tax Return of the suit Property.
d) That both the Courts below have failed to consider the principle of waiver;
e) That both the Courts below have failed to discuss the payment of pugree, which was acknowledged by the then landlord in the year 1975.
f) That both the Courts below have failed to consider that the petitioner has filed a case against respondent No.2, his real brother viz. Suit No.711/2003 for declaration, permanent injunction and cancellation. In the said Suit, the respondent No.2 has admitted and/or compromise and thereafter the respondent No.1 had filed the Rent Case for eviction.
g) That the Courts below have failed to consider that the respondent No.1 has failed to contest the suit in which he was one of the party and gave statement that the order is not binding upon him.
h) That both the Courts below have failed in holding that there was default and have not considered that the rent has been deposited by the petitioner.
7. It is important to mention here that the petitioner and respondent No.2 are real brothers and one of the key elements of this case is whether the petitioner or respondent No.2 is the tenant of the suit Property. According to the petitioner, on payment of pugree and rent since 1975 he became tenant of the suit Property. The contention of the petitioner is that as he is actual tenant of the suit Property and it is not a case of subletting. He has also mentioned that since the dispute between him and landlord, he was depositing rent in Misc. Rent Case No.242/2005 (“MRC”) in the Court of Ist Rent Controller, Karachi (Central) and as such he has not committed any default.
8. Admittedly, since the petitioner came in the alleged tenancy, rent has been paid by his brother and accepted by various landlords, who issued rent receipts in favour of his brother. He explained that his brother had been paying the rent on his behalf in the past as a matter of custom and he has not committed any default. The KESC and other utility bills of the suit Property, however, are in the name of the petitioner and were paid by the petitioner himself. The petitioner and his brother came into dispute as to who was the actual tenant of the suit Property and petitioner filed Civil Suit No.711/2003 against his brother. This suit was settled by a compromise on filing of joint statement, which is as follows;
“JOINT STATEMENT
That as the plaintiff and defendant No.1 are real brothers and the dispute between them is decided on special oath before this Hon’ble Court, therefore, both the parties above named have no objection to dispose of the instant case on the following terms:-
(i) To direct the defendant No.3 namely Muhammad Arif and Muhammad Kashif to issue rent receipts in the name of plaintiff from the month of May 2006.
(ii) To declare that the plaintiff is real tenant of suit shop.
9. The landlord was party to the said proceedings and service on him was held good and according to the petitioner since he did not dispute the compromise agreement, it was binding on him.
10. The petitioner has further contended that even if he is not the tenant and he is a sub-tenant, since he has been paying the rent regularly through his brother, he cannot be ejected by the landlord on account of the principle of waiver. He placed reliance on the case of MRS. FRENI A.CAVINA v. MRS. DHUNMAI PHIROZE DALAL (PLD 1991 SC 265).
11. On the other hand, the respondent has argued that Second Impugned Judgment is well reasoned and has considered all the main points which have once again been raised by the petitioner and there is no reason to interfere with the Second Impugned Judgment. He has raised a number of technical grounds namely, that pugree receipt concerns shop No.1, whereas the dispute in question concerns shop No.2 that since these documents were not produced in evidence, they cannot be relied upon. In support of these contentions, the respondent has placed reliance on the cases of MUHAMMAD SHAFI AND OTHERS v. SULTAN (2007 SCMR 1602), TRADING CORPORATION OF PAKISTAN (PVT) LIMITED v. MEERS NIDERA HANDELS SCOMPAGNIE B.V. (2007 CLC 462) and ZULFIQAR AND OTHERS v. SHAHDAT KHAN (PLD 2007 584). He stated that real tenant is respondent No.2, namely the brother of the petitioner, who has been paying rent and obtained receipts for the same up to March 2006. Thereafter the respondent No.2 defaulted in paying the rent.
12. In support of his contention he has referred to Suit No.711/2003 in respect of application under Section 151, CPC made by the petitioner to direct the landlord to receive rent from the petitioner. The learned Court held as under:-
“The defendant No.3 is the owner of the disputed shop and he has already file rent application bearing No.604/2006 which is pending since the compromise was not held between the plaintiff and defendant No.3, therefore the compromise is not binding upon the defendant No.3. In view of the above the application has no merits, hence the same is dismissed”.
13. I have heard the learned counsel for the parties at length and considered the documents on record and cases cited by them in detail.
14. It is not disputed that respondent No.1 is the owner and landlord of the suit Property and what the amount of rent is. What is in dispute is, who is the tenant, whether the rent has been paid on time and/or whether the landlord refused to accept rent from the tenant.
15. It is correct that as a rule this Court should not be used as an Appellant forum under Article 199 of the Islamic Republic of Pakistan, 1973. Reliance is placed on MESSRS SHAMIM AKHTAR v. STATE LIFE INSURANCE CORPORATION (PLD 2005 page 554).
“13. Before discussing factual aspects of the case and examining the above noted contentions of the learned counsel, it would be appropriate to mention here that the jurisdiction of this Court under Article 199 is extraordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes. Moreover, as held by this Court in the case of Messrs Mehraj (Pvt) Ltd, v. Miss. Laima Saeed and others (2003 MLD 1033) “ Jurisdiction of this Court under Article 199 of Constitution cannot be invoked to circumvent the provisions of rent laws so as to serve the purpose of second appeal, which has been specifically done away by the legislature, while promulgating the Ordinance of 1979, unless the findings recorded by the Tribunal are found to be based on patent misreading of evidence or the same are arbitrary, capricious, and perverse and have resulted in gross miscarriage of Justice”.
16. The above cited case, however, shows that resort to jurisdiction under Article 199, although being rare in rent cases, is not to be totally barred, especially where there has been a misreading/misinterpretation of the evidence and the law.
17. Two receipts on record dated 12.4.1975 and 17.4.1975 show that the petitioner paid pugree, to the original landlord (Mr. Riazuddin) and became at the least the co-tenant if not the tenant of the suit Property in 1975. Copies of the 2 receipts are reproduced as under:-
“ RECEIPT
I, Mr. Riazuddin son of Sirajuddin received Rs.2000/- and who pay other half Rs.1000/- is to be done. Mohammad Idrees Qureshi son of Mohammad Siddique Qureshi, resident of 153/19, 5/E, New Karachi in respect of shop No.1, Chand Bibi Market, received. Cash received and issued receipt.
Sd/-12.4.1975 Sd/- witness
17.4.1975”
“RECEIPT
“I, Mr.Riazuddin son of Sirajuddin received Rs.5000/- (Rupees five Thousand only) who pays other ½ Rs.2500/- Mohammad Idrees Qureshi son of Mohammad Siddique Qureshi, resident of 153/10, 5/E, New Karachi as pugree in respect of shop No.1, Chand Market, New Karachi had received and issued receipt as proved.
Sd/- 17.4.1975 Sd/-Witness Saeed Ahmed
17.4.1975”
18. The shop number is not relevant as it has been explained by the petitioner in his various pleadings that shop No.1 is now known as Shop No.2.
19. Other documents on record such as KESC invoices and tax documents also indicate that since 1975 the petitioner has been paying the utilities and taxes in respect of the Property. It is true that his brother was paying the rent and receiving receipts in respect of the same. However, according to the petitioner, this was a personal arrangement between himself and his brother and according to that arrangement his brother was paying the rent on his behalf which arrangement continued out of custom. Since his brother did not give evidence before the trial Court this cannot be specifically disproved.
20. It is also a fact that the petitioner is in occupation of the suit Property since 1975 and has been running his business from the suit Property. The learned trial Judge in the Second Impugned Judgment came to the conclusion that the petitioner was a sub tenant and not the tenant of the suit Property on the basis of rent receipts issued in the name of respondent No.2 (i.e. his brother) up to March, 2006. In my view, the learned trial Judge on this point (namely whether the Petitioner is the tenant or sub-tenant of the suit Property) in the Second Impugned Judgment has failed to appreciate the significance of all the documents on record, which when taken as whole show that the Petitioner is and always has been the tenant of the suit Property. Reliance is placed on the case of ZAINAB v. MUJEEB ALI AND ANOTHER (1993 SCMR 356).
“It is true that a plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence, but at the same time it is also a well settled proposition of law that a civil matter is to be decided on the basis of preponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both in order to arrive at the correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance”.
21. The learned trial Judge correctly held that the compromise decree was not binding on the landlord and cannot on its own prove that the petitioner was his tenant. This is an agreement between two brothers which the landlord is entitled to oppose and is simply another factor to be added to the other evidence which when taken together lead me, based on the facts and circumstances of this case, to the conclusion that the petitioner is the tenant of the landlord.
22. Having found the petitioner to be the actual tenant rather than the sub-tenant of the landlord the principle of waiver now becomes irrelevant.
23. The next point in issue is whether the tenant has defaulted in payment of rent. According to the petitioner, he offered to pay the rent to the landlord and when the landlord refused to accept the same, he deposited the amount in the MRC.
24. The learned trial Judge has stated at page 14 of the Second Impugned Judgment that according to Section 10 of Ordinance, 1979 “only three modes of payments of rent have been provided, firstly (i) rent should be paid directly to the landlord, secondly in case of refusal or avoidance on the part of landlord, (ii) rent could be sent through postal money order and (iii) rent could be deposited with the Rent Controller within whose jurisdiction premises is situated”.
25. Since the landlord denied refusing to accept the rent from the petitioner, the burden shifted to the petitioner to prove that he had tendered the rent to the landlord according to Section 10 of Ordinance, 1979.
26. The learned trial Judge then relied on the following case laws (cited and uncited);
“Procedure prevalent for remitting money order requires that money order should be tendered with a form by the postman and if it is accepted, a receipt is given by the payee and if it is refused, same is returned to the remitter with an endorsement of refusal and in case of acceptance receipt would be delivered to remitter. Mere receipt for remittance of money order, photo copy of which is filed by tenant, could not be treated as an authentic document to prove that money order was remitted”.
27. It was also held by superior Courts that, “in the absence of evidence of landlord’s refusal or avoidance to accept rent sending it through money order or deposit in Court would not be valid tender”.
PLD 1996 Karachi 440
“tenant continued depositing rent in office of Rent Controller despite the fact that landlord had never refused to receive rent. Landlord served notices upon tenant to tender rent direct to him, but tenant continued depositing rent in office of Rent Controller. Action of tenant was to cause hardship and difficulties to landlord which in law could not be termed to be “ due tender of rent”.
1996 MLD 791
“tenant could not prove that landlord had refused or avoided to accept rent, tenant is not entitled to send rent by money order or to deposit it with Rent Controller”.
28. In these cases, the tenant has not been able to prove that the landlord has refused to accept the rent, which is an essential requirement of Section 10 of Ordinance, 1979. Likewise in this case, according to the learned trial Judge the petitioner has not been able to prove that the landlord refused to accept the rent. Nor has he been able to produce any courier or other receipt to prove that he had tendered the rent to the landlord by post by way of money order in respect of the same. It seems that the learned trial Judge has found against the petitioner, on the point of willful default because the petitioner has simply started paying rent directly into the MRC Case without being able to prove that he attempted to tender the same to the landlord directly or through pay order which was required before reverting to paying the rent into the MRC.
29. It is not in dispute that since the landlord has denied refusing to accept the rent from the petitioner the burden of proof has been shifted on the petitioner to prove that the landlord refused to accept the rent. In this case the petitioner claimed that the landlord had refused to accept the rent, that he had then sent the landlord a pay order through post before finally depositing the rent in MRC. The petitioner, however, has not been able to produce any postal receipt for the rent, which he allegedly sent in terms of Section 10(4) of the Ordinance, 1979.
30. At this point it would be advantageous to set out Section 10(3) and (4) of Ordinance, 1979.
SECTION 10(3) & (4)
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or be deposited with the Controller within whose jurisdiction the premises is situated (italics added).
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent.
31. It seems that the trial Judge at page 14 of Second Impugned Judgment has caused some confusion in the interpretation of Section 10(3) of Ordinance, 1979, which, I would like to clarify. The learned trial Judge seems to indicate that before (Italics added) the rent can be deposited with the Controller it must firstly be sent to the landlord by post. By the word “or” between the words “sent to him by postal money order” and “be deposited with the Controller”, it is clear that there is no need to the tenant to first of all attempt to send the rent to the landlord by postal order. Sending first by postal order is not a precondition to paying rent to the Controller. There is no order of priority in Section 10(3) of Ordinance, 1979 between sending the rent to the landlord by postal money order or depositing the same with the Rent Controller. Under Section 10(3) of Ordinance, 1979 you may do one or the other or both if you so choose.
32. The key to Section 10(3) of Ordinance, 1979 is to prove that the landlord has refused to accept rent. Paying first by postal order if backed up with a receipt, as provided under Section 10(4) of Ordinance, 1979 would only be evidence in support of the tenant’s claim that the landlord had refused to accept the rent as was indicated in the case of (PAKISTAN STATE OIL CO. LTD. v. SIKANDAR A. KARIM (2005 CLC 3) in the following terms:
“25. As regards the default in payment of rent, it is not disputed that the tenant/petitioner had been depositing the rent in the name of previous owner of the premises in the Court in MRC 2919 of 1981, and had deposited the same up to September 1988. It is also admitted that after purchase of the demised property the new owner/respondent had served the tenant/petitioner with notice dated 13.8.1988 under section 18, Sindh Rented Premises Ordinance, 1979. Through the same letter the rent from July 1988 was also demanded by the new owner.
26. The tenant claims to have sent Cheque No. PSO-H-11713 dated 17.9.1987 for Rs.16,500/- (the rent from 1.7.1988 to 31.12.1988) under a covering letter, dated 15.9.1988 sent through registered Post A.D. It has brought in evidence A.D. receipt and copy of covering letter as Annexures O-3 and O-2. It further claims in evidence that another Cheque No.120762 dated 1.1.1989 for Rs.16,500/- being rent for the period 1.1.1989 to 31.12.1989 was also sent under a covering letter through registered post under Registration Receipt No.43 dated 5.7.1989 as Annexure O-4. It further claimed that the rent from 1.7.1989 to 31.12.1989 was sent by way of cheque under the registered receipt dated 5.7.1989.The subsection (4) of section 10 S.R.P.O, 1979 recognizes the postal money orders receipts as proof of the payment of rent. This shows that the postal documents specially the registration and A.D. receipts are an evidence of the dispatch and delivery of the envelopes containing the documents/cheques. In absence of any evidence from the landlord as to what else was sent to him under the postal registration and A.D. receipts the evidence on the side of the tenant has to be accepted. The landlord has not disputed the correctness of the address mentioned on the postal receipts which confirm the dispatch of letter contained the fact of sending the Cheque under it. The settled proposition of law is that ordinary and common mode of communication between the citizen is the post and the registration receipts showing the correct address are the evidence of dispatch and delivery of the material. In presence of such postal receipts and the covering letters, the presumption would be that the landlord had received the envelopes containing the cheques, unless he proves to the contrary. Reference can be made to the Honourable Supreme Court in Rasheed Ahmed v Messrs Friends Match Works reported in PLD 1989 SC 503 and Khuda Bux v Muhammad Yaoob and others reported in 1981 SCMR 1979.
27. The landlord did not come himself to deny the receipt of the Letters/cheques sent under the postal receipts. The oral denial by his attorney does not rebut the presumption specially when he does not say as to what had been received by the landlord in the envelopes. Thus, the contention of the tenant that the cheque for the rent amount pertaining to July 1988 and onwards were sent to the landlord is to be accepted. The two Courts below did not appreciate that evidence in accordance with law.
28. As regards the justification for depositing the rent in the Court, the fact that the landlord instead of getting the cheque encashed wrote a letter dated 11.11.1989 to the tenant alleging the non payment of rent from July 1988 and also asking it to vacate the demised property the tenant was fully justified in depositing the rent with the Rent Controller under MRC 1030 of 1989.
29. Since the tenant first deposited the rent upto September, 1988 in the name of previous owner in MRC No.2919 of 1981 and then sent the rent again from July, 1988 and onwards through cheques to the landlord, he cannot be held responsible for willful default in payment of rent nor he can be said to have deposited the rent with the Rent Controller without tendering it to the landlord and/or without any justification.”
33. I would, therefore, like to clarify that in this case there was no breach of Section 10(3) of Ordinance, 1979 on account of the petitioner not being able to prove that he attempted postal service before depositing the rent with the Rent Controller as seems to be indicated by the learned trial Judge (italics added). Certainly, it would have supported the petitioner’s case that the landlord refused to accept rent if the petitioner had been able to produce evidence that he had first sent the rent by post and been able to provide a receipt as mentioned in Section 10(4) of Ordinance, 1979. The failure to provide a receipt, as aforementioned, is not necessarily fatal to the tenant’s case provided that he can produce other evidence to prove that the landlord refused to accept the rent.
34. In determining whether it has been proved by the tenant that the landlord refused to accept the rent from him, this being a civil case, it has to be proved by evidence on a balance of probabilities and not beyond a reasonable doubt as in a criminal case.
35. When looking at the evidence the court must look at all the evidence in the case as well as the entire circumstances surrounding the case and determine the issue using a practical and common sense approach. Evidence cannot be viewed in isolation.
36. In this Petition it was the case of the landlord that the petitioner was not his tenant and never had been his tenant. According to him the tenant was the petitioner’s brother. Bearing in mind this back ground as a matter of common sense the landlord would have refused to accept the rent from the petitioner as this would have been an admission on his part that the petitioner was in fact his tenant which was a situation he wanted to avoid.
37. The petitioner, however, apart from his own statement, has produced no other evidence that the landlord refused to receive the rent. For example, he has no eye witness to corroborate him. This is where, in my view, the importance of a posted order receipt under Section 10(4) of Ordinance, 1979 lies. Namely, in cases such as this where there is no other independent evidence to support the petitioner’s version of the landlord refusing to accept the rent, the presence of a receipt under Section 10(4) of Ordinance, 1979, may have been sufficient additional proof of the landlord’s refusal.
38. Hence, going directly to the Controller in this situation where there is no supporting evidence of the landlord’s refusal to receive rent is in my view insufficient proof in and of itself of the landlord’s refusal. Had there been other evidence of the landlord’s refusal then going directly to the Rent Controller may have been sufficient to protect the tenant’s interest in this case.
39. This being the position, based on the above authorities and discussion, I find that the petitioner has failed to prove that he has complied with Section 10 of Ordinance 1979 as he has not been able to prove that the landlord refused to accept the rent as required by law and, therefore, the petitioner committed willful default.
40. Accordingly, the Second Impugned Judgment is set aside to the extent that the petitioner is found to be the tenant of the suit Property and not a sub-tenant and subject to the finding in paragraph 41 below but maintained to the extent that the petitioner has been found guilty of willful default in not paying rent in time under Section 15 of Ordinance of 1979, and therefore, the petitioner is liable for eviction from the suit Property.
41. Since the business and very livelihood of an individual is at stake in this case, I am of the view that it would be in the interest of justice that the petitioner be given one year to hand over the vacant possession of the suit Property to the landlord from the date hereof.
In the above terms, the Petition is disposed of.
Karachi,
Dated: 04.6.2009. Judge