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1989 C L C 279 [Karachi]

Before Abdul Rahim Kazi, J

Dr. GHULAM RASOOL Appellant

versus

MUHAMMAD IDREES QURESHI Respondent

First Rent Appeal No.396 of 1987, decided on 16th October, 1981

Moinul Hassan v . A . H . Junaid 1985 C L C 882 ref.

M.G. Dastagir for Appellant.

S.S. Jahangir for Respondent.

Dates of hearing: 26th September, 2nd and 9th October, 1988.

JUDGMENT

This appeal is directed against the order of the Rent Controller, whereby, he has ordered the ejectment of the appellant/ tenant, on the grounds of default and requirement for personal use. The facts of the case are that the present respondent filed the ejectment application under section 15 of the Sind Rented Premises Ordinance, 1979. His case is that he is the owner of the disputed house situate in Federal B‑Area, Karachi, while the present appellant is the tenant by way of an agreement of tenancy and that he defaulted in payment of rent since May, 1977, though the respondent approached the appellant through a legal notice dated 14‑1‑1978, which was duly replied. Secondly, it is claimed by the respondent that he used to live with his son in Government allotted quarter at Clayton Road, Karachi, which was cancelled after the death of his son and the Estate Officer insisted that the present respondent and the widow and children of the deceased son vacate the quarter and, therefore, he needed the demised premises for his personal use and the use of the family of his deceased son. As for delay, the respondent explained that due to serious illness of his wife and son who both died later on, he remained in mental stress and could not file the ejectment application earlier.

The present appellant filed ‑his written statement anal denied that he committed any default in payment of rent. He took the plea that whenever he offered the rent to the respondent, the same was refused and thereafter he deposited the rent in Court in Misc. Rent Case No.4379/1977. de also alleged that the respondent was adopting coercive method to enhance the rent and according .to him the respondent is residing in another house which belongs to him and is situate at Jehangir Road, Karachi, which is quite sufficient to accommodate him and the family of his deceased son. The quantum of rent was also disputed. According to the appellant, the rent was initially Rs.225 per month, which was later on enhanced to Rs.300 per month arbitrarily by the respondent. He denied the rate of rent to be Rs.400 per month, as claimed. The appellant also denied the relationship of the landlord and tenant between the parties at the time of evidence.

The learned Rent Controller answered the issue of relationship of landlord and tenant in favour of the respondent and so also the issues of default and personal requirement. The Rent Controller while dealing with the issue of default, has also determined the quantum of rent to be Rs.400 per month. All these findings have been challenged by the appellant in this appeal.

The appellant has drawn my attention to an application moved by him under Order VI, Rule 17 C.P.C., for amendment of written statement on the ground that he had subsequently learnt that the respondent was not the owner of the premises but it stood in the name of his son. This application was made at the belated stage when the evidence was being recorded and as such was rejected by the Rent Controller. However, suffice it to say that in cross examination the respondent /landlord has very specifically stated that the said premises were gifted to him. Moreover the appellant/tenant in his pleadings had admitted the respondent to be the landlord. In case of a Muslim gift ail that is required to prove by the donee is that the property was gifted to him and he had taken over the possession which fact is supported by admitted position in the instant case that the respondent had been receiving the rent of the said premises. I, therefore, hold that the respondent was the owner/landlord of the premises in question.

The learned counsel for the appellant, on the point of determination of quantum of rent, has argued that the learned Rent Controller has taken into consideration only one receipt showing that an amount of Rs.1,200 being the rent for the months of July, August and September, 1976, containing the endorsement of the appellant proved that the rent per month was Rs.400. It has been argued that the Rent Controller should have considered all other receipts as well, specially the subsequent receipt of Rs.600 which was produced as Ex.A‑5, at page 221 of the R&P. This receipt also contains the signature of the respondent /landlord as well as endorsement of the present appellant. The same is reproduced hereunder:‑

Received from my tenant Mr. Ghulam Rasool a sum of Rs.600 (Rupees six hundred only as an arrear and outstanding rent for the premises bearing No.617/17, R, F.B. Area, Karachi at the rate of Rupees three hundred per month.

This will also refer the rent receipt for the amount of Rs.1,200 previously given to my respected tenant for three months at the rate of Rs.400 per month and now both of the receipts will cover as an arrear rent for six months i.e. from July, 1976 to December, 1976 at the rate of Rs.300 per month.

If the latest landlord admits and acknowledged the receipt of Rs.600.

Sd/‑ Muhammad Idrees Qureshi. Landlord. 11‑3‑1977.

Paid Rupees six hundred (Rs.600) by Cheque No.416867 dated 12‑3‑1977 on the N.B.P. Gazdar Abad, Karachi, for rent upto December, 1976.

Sd/‑ Dr. Ghulam Rasool 12‑3‑1977.

Tenant.

This receipt clearly explains the payment of Rs.1,200 as contained in the previously referred to receipt and further clarifies that those Rs.1,200 plus Rs.600 received under this receipt totalling to Rs.1,800 is the rent for the six months from July, 1976 to December, 1976, at the rate of Rs.300 per month. It is also admitted by the parties that all the receipts contained the signatures of the respondent as well as the endorsements of the appellant. The upshot of the above discussion is that the monthly rent of the premises is Rs.300 and not Rs.400, as held by the Rent Controller. I, therefore, hold the rent of the premises to be Rs.300 per month and set aside the findings of the lower Court on this point.

On the point of .default, the learned counsel for the appellant has submitted that the rent for the period from May, 1977, was not paid as the same was not accepted by the respondent. His argument is that on 18‑7‑1977, the appellant had sent the money order for Rs.900, being the rent for the months of May, June and July, 1977, which was refused by the respondent, and, therefore, on 15‑12‑1977, he deposited the same in Court in Rent Case No.4379/1977, and, therefore, he is tendering the rent as required under law and cannot be termed as the defaulter. He has also drawn my attention to the money order receipt produced by him in the trial Court, as Ex. E‑1 at page 201. This is only the receipt given by the post office which suggests that Rs.900 were sent to Muhammad Idrees Qureshi, (respondent). The appellant has failed to bring on record the money order coupon which according to him would have contained the endorsement of refusal. In these circumstances, mere production of B this receipt would not prove that the money order was properly addressed to the respondent and refused by him. Even otherwise, this money order having been sent in the month of July, 1977, admittedly the rent was deposited in Court on 15‑12‑1977, i.e. after a period of five months would itself show that there is a wilful anti deliberate default on the part of the appellant. I cannot subscribe to the appellant s contention that in view of his sending money order and depositing the rent in Court in these circumstances would absolve him from being a defaulter. I hold that on the very admission of the appellant he has defaulted in payment of rent as required under the law.

The other ground taken by the learned counsel for the appellant is that the very application for ejectment was not maintainable on the ground that the same was based on the default committed during the period May, 1977 onwards, which according to him was the period for which the claim of the respondent had become time‑barred and the sane could not form the basis of the present application. He has further pointed out that ever since 15‑12‑1977, since when he has been depositing the rent in Court, the respondent /landlord has been withdrawing the same which amounted to waiver and he could not, therefore, base the present application for ejectment on the said grounds. It will be advantageous to reproduce here the provisions of section 15 of the Sind Rented Premises Ordinance, specially clause (ii) of subsection (2), which reads as under:‑

(ii) The tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant anti landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment.

In support of his contention, the learned counsel for the appellant has relied on the decision of this Court in the case of Muhammad Ahmad v. Mrs. Qamar Anwar Sheikh 1980 C L C 664. This was a case which was filed under the provisions of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, and wherein it was held by Mr. Zaffar Hussain Mirza, J. , in paragraph 6 of the judgment as under:‑

6. It was next urged by the learned counsel for the appellant that on the date of the application for ejectment on 8‑3‑1968 the respondent was entitled to claim arrears of rent only for a period of 3 years prior to the date of the application, for, it is well‑established that the word due refers to the rent due in law and recoverable in an action at law vide P L D 1968 SC 230. It was, therefore, contended that the ejectment cannot be sought on the basis of arrears of rent for a period falling beyond the limit of three years from the date of institution of proceedings. There can be no quarrel with the proposition of law submitted but it is not material for the present purpose. As already noticed the ejectment application was made on 8‑3‑1968 and could, therefore, cover a period of three years extending backwards up to 8‑3‑1965. The ejectment of the appellant was ordered for non‑payment of rent for the period between July, 1963 to July, 1965. Admittedly the appellant paid the arrears of rent on 4‑8‑1965, therefore, from 8‑3‑1965 to 4‑8‑1965 is the period of default for which the rent was due and recoverable by process of law on 8‑3‑1968. There is, therefore, no substance in this contention as well.

In the same case, it was also held that the tenant once committing default by not paying or tendering rent within prescribed period was liable to be ejected notwithstanding subsequent payment of arrears of rent unless a case of waiver on the part of landlord was made out. With all due respects the above case would not apply to the present case for the reasons that word due , the governing word which found place in the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was omitted from the provisions of section 15 of the Sind Rented Premises Ordinance, 1979. This would clearly show the intention of legislature that the action for ejectment could be brought by the landlord even on the basis of the time‑barred rent. In my view, a debt which becomes barred by time, still remains an amount due to the creditor. Thus a right to receive a payment of debt as distinct from a right to enforce its payment, subsists even after the remedy by action has become barred by time. The right of a creditor to receive payment and the obligation of a borrower to repay never die by lapse of time. Since the debt exists, it clearly implies that the amount is still due from the debtor. It may as well be noted that the law of limitation is different from the law of prescription. The latter prescribes the period on the expiry of which not only the judicial remedy is barred D but a substantive right is extinguished by one and acquired by the other, whereas the law of limitation does not destroy the right but only extinguishes the remedy.

The plain reading of section 15(2)(ii) would show that action for ejectment can be brought if the tenant has failed to pay the rent. The word due not finding place in this provision would show that the rent here would mean all the rent. The learned counsel for the respondent repelling the above argument has placed reliance on the case of Ashfaq‑ur‑Rehman Khan v. Ch. Muhammad Afzal P L D 1965 (W.P.) Lah. 59 in which a reference was made to the Full Bench. I, therefore, hold that the present appellant is a defaulter within the meaning of the provisions of section 15(2)(ii) of Sind Rented Premises Ordinance, 1979, and the ejectment application filed by the respondent is maintainable.

The learned counsel for the appellant while arguing on the ground of personal requirement of the landlord has mainly contended that the respondent was not the owner of the property and, therefore, he could not seek ejectment for his personal requirement. He has further contended that the widow and children of his deceased son do not fall within the meaning of his spouse or children as provided in clause (vii) of subsection (2) of section 15 of Sind Rented Premises Ordinance, 1979. Be as it may, the respondent has still urged the need for his personal requirement. The learned counsel has relied on the case of Moinul Hassan v. A.M. Junaid reported in 1985 C L C 882. There is no dispute about the said proposition but as I have already held above that the present respondent had acquired the ownership of the premises by way of gift from his son, he is very much within his right to claim the possession of the said premises for his bona fide use. There is no evidence brought on record by the appellant to disapprove this contention of the respondent.

Repelling the above contention the learned counsel for the respondent has stated that the evidence shows that the respondent had been residing with his son in an official quarter and that after the death of his son he has been required to vacate the said quarter and that he had no other house of his own except the one in dispute. It is further his case that the allotment of the said quarter has been cancelled by the Estate Officer after the death of his son and unless his present prayer is allowed he will be rendered shelterless. He has also urged that his contention has gone unrebutted. He has relied on a number of authorities from the don ble Supreme Court and this Court in support of his above contention. It is mandatorily provided in section 15 of the Sind Rented Premises Ordinance that the Controller shall make an order directing the tenant to put the landlord in possession of the premises, if he is satisfied that the landlord requires the premises in good faith for his own occupation. The only exception would be where the premises are not required in good faith. Whereas, in the present case, it has been sufficiently proved by the respondent that he has been asked to vacate the quarter in his occupation and that he has no other house at Karachi. I, therefore, hold that the respondent does require the premises in good faith for his personal use.

In view of above, I dismiss the present appeal subject to modification that the monthly rent of the premises is Rs.300 and not Rs.400 as held by the Rent Controller.

In view of the circumstances of the case, there will be no order as to costs.

H.B.T./G‑83/K Appeal dismissed.

 

 

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