C. P. No. S-300 of 2021
Petitioner Qurban Ali : through Mr. Atta Hussain A.
Chandio, Advocate.
Respondent No. 1 Ali Goher : through Mr. Zameer Ali Shah,
Kanasiro through his attorney/ Advocate
son Sajjad Hussain
Date of hearing : 18.12.2023
Date of Judgment : 11.01.2024
Muhammad Saleem Jessar, J.- By means of instant constitution petition, the petitioner Qurban Ali has challenged Judgment dated 17.08.2021 passed by learned 3rd Additional District Judge, Larkana in First Rent Appeal No.02 of 2021, whereby he has upheld the eviction order dated 25.02.2021 passed by learned 1st Rent Controller, Larkana in Rent Case No. 11 of 2019.
2. Brief facts of the case, relevant for the purpose of deciding instant constitutional petition, are; that the respondent filed rent application bearing No. 11/2019 stating therein that he is co-owner of Lateef Shopping Center Resham Gali Larkana consisting of 30 shops constructed on City Survey No.1466/1, Ward ‘B’ Larkana. His father had rented out shops No.19 & 20 to the opponent at the rent of Rs.9165/- per month through oral tenancy agreement which expired in December, 2017. The opponent / petitioner was time and again asked to pay the monthly rent to the landlord or vacate the premises in question but no heed was paid by him to such requests. All of a sudden most of the tenants of Lateef Shopping Centre formed unity and refused to pay monthly rent from January, 2018 and after committing default, in the month of May, 2018 they deposited four months’ rent in the Court of Rent Controller-II, Larkana through Misc. Rent Case, in the name of attorney of the applicant, without complying with the legal requirements. The opponent / petitioner was repeatedly asked to vacate the rented premise and pay the arrears of rent amount but he was reluctant to do so and kept the applicant / respondent on hopes. The respondent, thus claimed that in view of above, the petitioner was liable to be evicted from the premises on the ground of default, hence he prayed accordingly.
3. Upon service of notice, the opponent / petitioner appeared before the Rent Controller and filed his written objections / reply wherein he denied the averments made in the rent application and submitted that one Sajjad Hussain had entered into a tenancy agreement with 29 tenants including the opponent and used to receive monthly rent from the opponent in respect of both shops till December, 2017 and then he refused to receive the rent in collusion with other members of his family, hence finding no other way rent was sent through postal money order which was also refused by Sajjad Hussain. Opponent then sent second money order with 30% increase which was also refused by him and the third postal money order sent by opponent also met the same fate. Finally opponent along with other tenants started depositing rent in the Court of 2nd Rent Controller, Larkana. It was further stated that opponent never refused to pay monthly rent of the rented premises from January, 2018. According to the opponent / petitioner, Sajjad Hussain had also sent a legal notice which was replied by the opponent. However, thereafter rent applications were filed against many tenants including the opponent by the applicant and his other family members. It was asserted by the opponent that Sajjad Hussain had been acting as landlord and receiving rent from him regularly, thus the opponent never committed any default in the payment of rent. He lastly prayed for dismissal of the rent application with special costs.
4. In order to substantiate his claim, attorney of the applicant, filed affidavit-in-evidence as Ex.19/A and produced Extract from the Property Register Card in respect of CS No.1466/1 Ward-B Resham Gali Larkana, attested copy of Special Power of Attorney as Ex.19/B & 19/C, affidavit-in-evidence of Muhammad Hassan as Ex.20/A and he was duly cross-examined. Thereafter, learned counsel for the applicant / respondent closed his side vide statement Ex.21.
5. In defense opponent filed his affidavit-in-evidence as Ex.37/A and produced Qabooliyat / Agreement dated 01.06.2012, Legal Notice dated 12.06.2018, Reply to Legal Notice dated 25.06.2018, Receipts of three money orders as Ex.37/B to 37/E-II, affidavit-in-evidence of witnesses Barkat Ali and Abdul Ghafoor as Ex.38/A & 39/A respectively and they were also subjected to cross examination. On the application of learned counsel for opponent, Senior Postmaster, Larkana GPO was summoned for production of record of money orders allegedly sent by the opponent and accordingly one Syed Irshad Ali Shah (Admin Clerk) was examined before the Rent Controller vide Ex.43, who produced his Authority Letter, attested copies of Receipt No.3291 and Money Order dated 28.02.2018 for the amount of Rs.9165/-, Receipt No.9423 and Money Order dated 05.03.2018 for the amount of Rs.11,915/-, Receipt No.3487 and Money Order dated 02.04.2018 for the amount of Rs.11,915/-, copy of Letter No.CR/Misc/2018 dated 02.05.2018 as Ex.43/A to 43/H respectively and he was duly cross-examined by other side. Thereafter, learned counsel for the opponent closed his side vide Statement Ex.46.
6. I have heard learned counsel for the parties and have gone through the material made available on the record.
7. Learned Counsel for the petitioner / tenant has denied the relationship of landlord and tenant between the parties. According to him, applicant/respondent was not collecting the rent from the opponent but, in fact, his son namely Sajjad Hussain was collecting the rent with whom the opponent had entered a tenancy agreement alongwith other tenants of the market. Learned counsel; however, submitted that the petitioner did not commit any default in payment of monthly rent and had been paying the rent regularly and on the refusal of said Sajjad, he first sent the rent through money orders and on refusal to accept the same, he alongwith other tenants started to deposit the rent in the Court. Learned counsel also submitted that besides, the evidence led by the applicant / respondent was contrary to the pleadings. He drew attention of the Court towards memo of rent application available at page-54 of the Court file, which was filed on 07.8.2019 and has referred to grounds No.2 & 4. He further submitted that both Courts below have committed error while allowing rent application filed by the respondent. Even the appellate Court has modified the plea taken by the respondent, which is misreading and non-reading of evidence, therefore, he prayed that by allowing this petition, case may be remanded to the appellate Court for re-hearing of the case. Learned counsel further submitted that though the applicant/respondent had not filed any proper application in terms of Section 8 of Sindh Rented Premises Ordinance, 1979 (SRPO) seeking enhancement or fair rent of the premises, yet they are ready to enhance the rent as per market rate. In support of his contentions, he placed reliance upon the cases reported as Journalist Publication (Pvt) Ltd. vs. Mumtaz Begum (2004 SCMR 1773), Shezan Limited vs. Abdul Ghaffar (1992 SCMR 2400), Reliance Corpn. Vs. United Refrigeration Indus. (1992 SCMR 2423), Fakhar Mahmood Gillani vs. Abdul Ghafoor (1995 SCMR 96), Azeemuddin vs. Attiqa Begum (2008 CLC 1499), Kamal Ahmed vs. Razia Begum (1989 CLC 461), Muhammad Hanif vs. Mohsin Ali (1997 MLD 2754), State Life Insurance Corpn. Vs. Siddique Tailors (PLD 1993 Karachi 642), Moizur Rehman vs. Mrs. Fakhra Javed (PLD 1991 Karachi 452), Jiand Rai v. Arjan Das (2016 MLD 116), Muhammad Yamin vs. Mashroofullah Khan (1980 CLC 848) and Abid Ali vs. Ghulam Moinuddin Khan (2012 CLC 143).
8. Conversely, learned counsel for the applicant/respondent opposed the petition. As far as plea of the petitioner regarding relationship of landlord and tenant between the parties is concerned, learned counsel referred to Section 2(f) of SRPO, 1979 and submitted that in view of above definition, the respondent is competent person and he has been authorized to collect amount of rent etc. According to him, the petitioner deposited rent before Rent Controller after lapse of about 04 months; hence, he is willful defaulter.
9. In rebuttal, learned counsel for the petitioner submitted that before depositing the rent amount in Court, the petitioner had sent the rent through money orders which were refused by the landlord and ultimately finding no other alternate he had filed miscellaneous rent application before Rent Controller which was allowed and then he continued depositing the monthly rent before Rent Controller, therefore he cannot be termed as defaulter in payment of rent. In support of his contentions, he referred to his Statement dated 26.11.2021 whereby he placed on record various documents in support of his case.
10. Learned Counsel for the applicant/respondent had relied upon the cases reported as Muhammad Hanif vs. Mohsin Ali (1997 MLD 2754), Razia Sultana vs. Muhammad Hassan Khan (1991 CLC 632), Zeenat Jaffrey vs. Vth Additional Judge (2013 YLR 1654) and Aleemuddin vs. Madersa Ghousia Taleem-ul-Quran (2013 CLC 1110).
11. In the first instance, I would like to deal with the plea raised by the petitioner / tenant that there is no relationship of landlord and tenant between the parties. The petitioner / tenant in his evidence has admitted that the premises in question was rented out to him by father of the applicant / respondent namely, Ali Nawaz Kansaro. He also admitted in his cross examination that Sajjad Hussain, to whom he was allegedly continuously paying the monthly rent till December, 2017, is the son of applicant Ali Goher. Besides, the witness of the petitioner /tenant namely, Abdul Ghafoor, who claims to be the brother of petitioner, also admitted in his cross examination, “It is correct that now applicant is the owner of rented-premises………It is correct that Sajjad Hussain received rent amount from opponent on behalf of applicant till December 2017”. Another witness of petitioner/tenant namely, Barkat Ali, admitted in his cross examination, “It is correct that Ali Nawaz Kansaro was the original owner of rented premises. It is correct that after the death of Ali Nawaz, the applicant and his other brothers becomes shareholders in the rented premises.” From above, it is clear that admittedly applicant Ali Gohar is one of the legal heirs of the original owner/landlord namely Ali Nawaz, thus, he is co-owner of the premises in question. Needless to emphasize that now it is well settled that a co-owner is fully competent and authorized to collect the rent from the tenant and also to seek his ejectment. In this connection, reference may be made to the case of MUHAMMAD AZAM KHAN Vs. Dr. IQBAL HAMEED and 2 others, reported in PLD 2021 Sindh 237, wherein it was held as under:
“6. In the instant matter, such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of the respondent/ applicant who, undeniably, is dead thereby making his legal heirs, including the respondent/applicant as one of the co-owner/co-sharer and other legal heirs have given no objections to the present landlord though legally, in the rent jurisdiction every co-owner has a right to agitate the plea of personal bona fide need irrespective of fact that tenancy, created by other co-sharer because legally every co-sharer has his/her own circumstances hence legally shall have a right to establish the plea of personal bona fide need in respect of such premises. Reference may be made to Imran Qadir v. Roqiya Sultana and 7 others 2017 CLC Note 80 wherein it is observed as:-
"Any of the co-sharers may file a rent case against the tenant irrespective of the fact that some other co-sharers had inducted the tenant in the tenement. (Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Muhammad Hanif and others v. Muhammad Jameel and 5 others 2002 SCMR 429)."
12. In another case reported as MOHAMMAD AKRAM BHATTI Vs. ADDITIONAL DISTRICT JUDGE, ATTOCK and 3 others (2021 CLC 1405), Honourable Rawalpidi Bench of Lahore High Court, held as under:
“Even if respondent No.4 as a co-owner inducted respondent No.3 as a tenant in the shop which was a joint-property, the respondent as tenant could not deny the right of the petitioner as co-owner and landlord of the property to receive rent or to seek eviction. In "Aftab Ahmed Saeed v. Faisal Shahzad and others" (2005 CLC 1668) it was observed to the effect that every co-owner is entitled to receive rent of the premises as landlord and if one co-owner has not let out the property, but some other co-owner or authorized person entitled to receive rent has, by legal fiction every co-owner of the property shall be deemed to be landlord and competent to maintain ejectment application on any ground available to him under the law and even without joining other co-owners as applicants if the ground of ejectment is otherwise available. Relevant excerpt of the judgment is as under:
"7. Reverting to the legal position, a bare reading of definition of word "landlord", given under section 2(t) of the Sindh Rented Premises Ordinance, 1979, makes it clear that besides person, who is authorized or entitled to receive rent of the premises, every co-owner of the premises is landlord. Thus, if one co-owner has not let out the property, but some other co-owner or authorized person entitled to receive rent has let out the property, by legal notion every co-owner of the property shall be deemed to be the landlord, and competent to maintain ejectment application on any ground available to him under section 14 or section 15 of the Sindh Rented Premises Ordinance, 1979, even without joining other co-owners as applicants, if otherwise such ground of ejectment is available to him.”
13. In view of above, the plea raised on behalf of the petitioner/tenant regarding relationship of landlord and tenant between the parties is misconceived hence, liable to be discarded.
14. Now, adverting to the issue of default in payment of monthly rent by the petitioner / tenant, it seems that the claim of the respondent / applicant is that the petitioner / opponent has committed default in payment of rent for the period from January, 2018 to April, 2018. The attorney / son of the respondent namely, Sajjad Hussain, deposed on oath before the Rent Controller that he did not receive rent for the aforesaid four months from the petitioner / opponent. In his affidavit-in-evidence, so also during his cross examination the said attorney deposed in categorical terms that the opponent / petitioner had committed default in payment of monthly rent from January, 2018 to April, 2018. In such an eventuality, as per settled law, now the burden shifts upon the shoulders of the petitioner / tenant to prove that he had paid rent for the alleged period.
15. In this context, reference may be made to a decision given by a Full Bench of Honourable Supreme Court in the case of ALLAH DIN Vs. HABIB, reported in PLD 1982 SC 465, wherein it was held as under:
“It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13 (2) (i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non‑payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question.”
Reliance, in this connection, can also be placed upon the case of Mrs. Asma Makhdoom Vs. Mrs.Yasmeen Azam (2018 MLD 976).
16. In support of his plea that he has committed no default in payment of rent, the petitioner / tenant stated that aforesaid Sajjad Hussain had been receiving rent from him but all of a sudden he refused to receive the monthly rent from January, 2018 hence the rent was tendered to him through three postal money orders for the period from January, 2018 to April, 2018 but he also refused to receive the said money orders. The petitioner / opponent further asserted that finding no alternate, he and other tenants filed Misc. Rent Applications in the Court of Rent Controller-II, Larkana in May, 2018 which were allowed thus he started depositing rent for the premises in question in Court. He also produced three customer receipts of Money Orders before the Rent Controller.
17. Besides above, the petitioner / opponent also moved application for examining Senior Postmaster, Larkana GPO. The said application was granted and accordingly he was summoned by the Rent Controller in consequence whereof one Syed Irshad Ali Shah (Admin Clerk) duly authorized by Senior Postmaster Larkana GPO appeared before the court and produced official record vide Ex.43/B to 43/H pertaining to aforesaid three money order receipts which were produced by the opponent. It appears that first postal money order bearing No.3291 for the amount of Rs.9165/- was sent by the petitioner on 28.02.2018, whereas second money order bearing No.9423 for the amount of Rs.11,915/- was sent on 05.03.2018 and the third money order bearing No.3487 for the amount of Rs.11,915/- was sent on 02.04.2018. It is not the case of the petitioner that upon refusal of the attorney of the landlord to receive the first money order, he straight away approached the Court of Rent Controller and after seeking permission started depositing the rent through Misc. Rent Case which was the proper course as per the settled law. On the contrary, admittedly the petitioner after refusal of the attorney of the landlord to receive first money order dated 28.02.2018, instead of approaching the Court for depositing the rent through MRC, he repeated the same process by sending second money order dated 05.03.2018 which was also refused by the attorney of the landlord. Even then, the petitioner did not rush to the Court but instead he again waited and then sent third money order dated 02.04.2018. Such practice is contrary to the well settled principle enunciated by the Superior Courts. In this connection, reference may be made to the case of MUHAMMAD RIAZ SHAIKH and 2 others Vs. IFTIKHARUDDIN and 2 others, reported in 2014 CLC 1695 [Sindh], wherein it was held as under:
“14. Here in this case, it is an established practice by the tenant to pay rent in advance on every 5th of the calendar month and this fact has admitted by the attorney of the petitioners in his evidence, therefore, under the circumstances, the petitioners were required to pay/tender the rent as admitted practice but here in this case admittedly the tenants have sent rent for the month of January, 1994 to March, 1994 on 24-3-1994 through money order, which was also not received by landlord and thereafter the tenants have started to deposit the rent of the disputed period and onward in M.R.C. No.553 of 1994 on 1-1-1995 after committing willful default.”
18. This point has elaborately been discussed by this Court in an earlier decision given in the case of Mst. RAZIA SULTANA Vs. Mrs. MUHAMMAD HASAN KHAN and 9 others, reported in 1991 CLC 632 [Karachi], wherein it was observed as under:
“10. The Rent case was filed by the appellant on the ground of non‑payment of rent for the period from the month of March to August 1980. The respondents pleaded that the rent for the months of March and April was sent under money order dated 8‑3‑1980 which was refused by the appellant. Money order was again sent on 9‑3‑1980 towards the payment of rent for March 1980. This money order was refused and therefore rent for the months of March and April 1980 was sent under money order dated 6.4.1980 which met the same fate. In these circumstances respondents on 24‑8‑1980 filed Misc. Rent Case No.4767/80 seeking permission of the Rent Controller to deposit rent in Court which was allowed on 2‑9‑1980 and rent for the months of March to August 1980 was deposited on 8‑9‑1980. Money Order coupons sent during March and April 1980 are on record as Ex.0‑9. 0‑10 and 0‑11. The authenticity of these Money Orders is highly doubtful. The said Money Orders do not bear round seal of the Post Office or the endorsement of the postman. The respondents failed to produce postal receipts pertaining to the said Money Orders. The first Money Order is alleged to have been sent on 8‑3‑1980 and second on 9‑3‑1980 after refusal of the first one by the appellant. The return of first Money Order by the postal authorities on the next day of its despatch is an act unbelievable and cannot be accepted. Be that as it may, the fact, remains that the said money orders were towards rent for the months of March and April 1980 and thereafter the respondents chose not to pay rent by any of the modes prescribed by law until September 1980 when they deposited rent in the Misc. Rent Case. The payment made in the Misc. Rent Case at a time when the default was already committed cannot save the respondents from the consequence of default in payment of rent. In case the Money Orders were refused by the appellant, as is the case of the respondents, they were under an obligation to immediately avail the alternate mode for legal tender of rent prescribed under section 10 of the Ordinance for enjoyment of the protection provided to tenants by the Ordinance.”
19. Yet, there is another aspect of the case. From perusal of the material available on the record it appears that third money order receipt bearing No.3487 produced by the petitioner / opponent was, in fact, not sent by the petitioner/tenant but the same was sent by some other person. From perusal of official record of said money order which was produced before the Rent Controller by one Syed Irshad Ali Shah vide Ex.43/G, reveals that said money order was sent by one Muhammad Khan, who was the owner of Al-Fatah Cloth House. In this view of the matter, said third money is liable to be discarded from consideration, resultantly it can safely be concluded that the petitioner / tenant had sent only two money orders i.e. first in February, 2018 and the second in March, 2018 and then despite getting knowledge that second money order which was sent on 05.03.2018 was also refused to by the attorney of the landlord, he waited for another two months before approaching Rent Controller for the purpose of depositing rent through MRC.
20. In view of above, learned Rent Controller had rightly given finding and so also the Appellate Court also rightly upheld such finding that the petitioner / tenant had committed default in the payment of rent from January, 2018 to April, 2018.
21. Even otherwise, it is now well settled that concurrent findings of the two Courts below could be interfered with by this Court in exercise of its extra ordinary constitutional jurisdiction only in exceptional cases.
22. In this context, reference may be made to the case of MUHAMMAD SALIK ATHAR through Attorney Vs. MUHAMMAD OBAID and 3 others, reported in P L D 2023 Sindh 411, wherein it was held as under:
“5. Now, before proceeding further, it needs to be reiterated that this Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice. The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities the scope becomes rather tightened. It is pertinent to mention here that captioned petition fall within the writ of certiorari against the judgments passed by both courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence.”
23. In case of Martin Dow Marker Ltd., Quetta Vs. Asadullah Khan, reported in 2020 SCMR 2147, it was held by Honourable Supreme Court that for displacing the concurrent findings of fact recorded by the Lower Courts, also upheld by the High Court in its constitutional jurisdiction, appellant was required to show and establish misreading of evidence and wrongful exercise of jurisdiction by the forum below.
24. In another recent case of A. RAHIM FOODS (PVT.) LIMITED and another Vs. K&N'S FOODS (PVT.) LIMITED and others, reported in 2023 C L D 1001 [Supreme Court], wherein Honouabole Apex Court held as under:
“6. In the exercise of its appellate jurisdiction in civil cases, this Court as a third or fourth forum, as the case may be, does not interfere with the concurrent findings of the courts below on the issues of facts unless it is shown that such findings are on the face of it against the evidence available on the record of the case and is so patently improbable or perverse that no prudent person could have reasonably arrived at it on the basis of that evidence. A mere possibility of forming a different view on the reappraisal of the evidence is not a sufficient ground to interfere with such findings.”
25. The upshot of above discussion is that besides being not maintainable, there is also no merit in instant petition which is hereby dismissed along with all pending Misc. Applications. Consequently, interim order dated 29.09.20221 is hereby recalled. The petitioner / tenant is directed to vacate the rented premises and handover its peaceful-cum-vacant physical possession to the respondent/landlord within six (06) months’ time from the date of this judgment positively without fail, subject to the deposit of monthly rent with the Nazir of this Court for six months in lump-sum. The aforesaid deposit should be made by the petitioner/tenant by 10th February, 2024 positively. After making compliance, the petitioner shall vacate the premises on or before 10th July, 2024, whichever is earlier. In case of failure, the executing Court shall issue writ of possession with police aid without issuing notice to the petitioner/tenant and after putting the respondent/landlord in physical possession submit report to this Court through Additional Registrar.
Judge
Larkana
Dated: 11-01-2024.