IN THE HIGH COURT OF SINDH AT KARACHI

 C.P. No.S-1068 OF 2002

                                            Before: Mr.Justice Ali Sain Dino Metlo

   

Abdul Wahab Polani

son of Haji Muhammad Siddique Polani,

Muslim adult, carrying on business at Room No.22,

2nd Floor, Valika Chambers,

Altaf Hussain Road,

New Challi,  Karachi…….………………………..Petitioner

 

 

Versus

 

1.         Messrs. Valika Properties (Pvt) Ltd.

a Private Limited Company,

duly incorporated under the

Companies Act, having its registered

office at 4th Floor, Valika Chambers,

Altaf Hussain Road, New Challi,

Karachi, through its Director Kamranuddin

Valika son of Late Fakhruddin Valika,

office at 4th Floor, Valika Chambers,

Altaf Hussain, Road, New Challi, Karachi.

 

2.         IIIrd Addl.District & Sessions Judge,

            Karachi South, Old District Court Building,

            M.A. Jinnah Road, Karachi……………………Respondents.

 

 

Date of hearing 30-10-2008

Mr.Shafaat Hussain,  advocate for the petitioner.

Mr.Mirza Waqar Hussain, advocate for the respondent No.1

 

JUDGMENT

 

Ali Sain Dino Metlo, J. Petitioner Abdul Wahab Polani, tenant of room No.22, 2nd floor, Valika Chambers, New Challi, Karachi, has challenged judgment dated 18.10.2002 of the Additional Sessions Judge-III, Karachi South, acting as Appellate Authority under the Sindh Rented Premises Ordinance, 1979, whereby he directed him to handover possession of the room to the respondent (landlord) within sixty days thereof, holding that he had committed default in the payment of rent for three months i.e. October, November and December, 1996.

 

2.         Briefly, the facts are that in the year 1999, the respondent filed a rent case, bearing No.1397/1999, for ejectment of the petitioner from the above mentioned room alleging that he had not paid rent, at the admitted rate of Rs.2,000/- per month, for the months of October, November and  December, 1996, and had started depositing rent from January, 1997 with the Rent Controller without first tendering the same directly or through money order.

 

3.         The petitioner denied to have committed default in the payment of rent, contending that he had paid rent for the months of October, November and December, 1996 through a cheque for which neither any receipt was issued nor the same was encashed and that on the refusal of landlord to receive rent for the month of January, 1997, rent for & from January, 1997 was deposited with the Rent Controller in M.R.C. No.123 of 1997.

 

4.         After recording evidence of the parties, the Rent Controller, by his order dated 12.2.2002, found that the petitioner had not committed default in the payment of rent, because  the rent of October 1996 was deposited with the Rent Controller in January, 1997 and there was also practice of paying rent periodically in lumpsums.

 

5.         The Appellate Authority, by its judgment  dated 18.10.2002, reversed the finding and ordered ejectment by holding that the petitioner had committed wilful default by not paying rent for the months of October, November and  December, 1996 and also by depositing rent from January, 1997 with the Rent Controller without first tendering the same to the landlord directly or by money order.

 

6.         No exception can be taken to the finding and order of the Appellate Authority. First, the receipts produced and relied upon by the petitioner show that the rent was being paid and accepted in advance. Secondly, the petitioner failed to prove that rent for the months of October to December, 1996, was paid to the landlord or deposited with the Rent Controller at any time.  He did not deposit rent of October to December, 1996 with the Rent Controller, even after coming to know that the cheque, which he had allegedly issued for the rent of said months, had not been encashed. He deposited rent with the Rent Controller only for the period from January, 1997.

 

7.         The contention of the petitioner that the respondent, who had been issuing receipts for the cheques delivered to him earlier, refused to issue receipt for the cheque delivered to him for the rent of October to December, 1996, does not inspire any confidence. The receipt was not demanded at any time in writing nor any witness, in whose presence it was verbally demanded, was examined. Even in his application,   bearing No.123/1997, the petitioner did not mention that receipt for the rent of October, November and December, 1996, had not been issued to him.   He did not examine any witness in whose presence the alleged cheque was delivered to the respondent. The rent from January, 1997 was directly deposited with the Rent Controller on 25.1.1997 without tendering it first to the landlord by money order. In such circumstance, it can safely be said that non-payment of rent for the months of October to December, 1996, was   wilful and  contumacious act of the petitioner.

 

8.         Referring to sub-section (1-C)  of section 21 of the Sindh Rented Premised Ordinance, 1979 (added by Sindh Ordinance XIV of 2001), learned counsel for the petitioner  contended that the Appellate Authority, ordered ejectment without making attempt to effect a compromise between the parties and, therefore, per the learned counsel, the order stands vitiated due to non-compliance of the provision.

 

9.         In this regard it may be observed that the provision of law, being discretionary, its non-observance cannot have the effect of invalidating the proceedings.  For this view, reference may be made to the case of  Azim Khan versus Muhammad Hussain, reported in 2003 CLC 278 (Karachi). An attempt made by this court to effect compromise also failed.

 

10.       Referring to the proviso to section 15 (2) (ii) ibid (added by Sindh Ordinance XIV 2001), learned counsel for the petitioner also argued that, the default being of less than six months, the Rent Controller was right in rejecting the application. In this regard it may be observed that Sindh Ordinance XIV of 2001 cannot be given retrospective effect and rights of the parties as  to grounds for ejectment need  to be decided on the basis of law existing at the time of the accrual of cause of action and not on the basis of the amendment made during the pendency of the proceedings. For this view reference may be made to the case of Pakistan State Oil Company versus Abdul Khalique Gandawala (1999 SCMR 366). Moreover, conditions of the proviso that the tenant must on the first day of hearing admit his liability and show his willingness to pay the rent claimed from him, were not satisfied in the present case as the petitioner neither admitted his liability nor showed his willingness to make the payment.

 

11.       Referring to the cases of ABCO International Corporation versus Mrs.Salima Hashim Raza, Mir Samiullah versus Muhammad Murtaza Khan, Zakaullah Khan versus Nawab Ali, and Amir Ali versus Jan & Co, reported in 1984 CLC 2488 (Karachi), 1986 CLC 705 (Karachi), 1986 CLC 1758 (Karachi) and 1987 CLC 442 (Karachi)  respectively, learned counsel for the petitioner contended that ejectment on the ground of default in the payment of rent, being discretionary, the Appellate Authority should not have interfered with the discretion exercised by the Rent Controller. In this regard it may be mentioned that facts of the cited cases are different and the period of default in all of them pertained to the period when ejectment on the ground of default used to be discretionary under the previous Ordinance i.e. Sindh Urban Rent Restriction Ordinance, 1959. In the Sindh Rented Premises Ordinance, 1979, promulgated on 2.11.1979, the word ‘may’ was replaced by ‘shall’ and the discretion was curtailed. In the case of Laiq Ahmed versus Mst.Shamshad Anwar, reported in 1995 SCMR 214, the Supreme Court approved order of the High Court of Sindh, ordering ejectment on the ground of default in the payment of rent for three months.

           

12.       In view of the above mentioned facts, circumstances and reasons,  no exception can be taken to the order of the Appellate Authority and the petition, being meritless, is dismissed with, however, no order as to cost.  Learned counsel for the petitioner, relying upon an order of the Supreme Court passed on 7.10.2003 in C.P. 387 K of 2003, re Muhammad Yahya versus Valika Properties Pvt. Ltd., requested for giving reasonable time to the petitioner to vacate the premises, in the event of dismissal of the petition. In view of the request made by the learned counsel, time of twelve months hereof is given to the petitioner to vacate the premises and handover its possession to the respondent subject to deposit of monthly rent regularly with the Rent Controller. In case he fails to vacate the premises and handover its possession to the respondent within twelve months, the Rent Controller, on being approached, shall issue writ of possession without further notice to him.

                                                                                   

                                                                                                JUDGE