Sunday, 31 May 2015

Latest Judgment in a Defamation Case

P L D 2015 Supreme Court 42
Present: Jawwad S. Khawaja, Mushir Alam and Dost Muhammad Khan, JJ
LIBERTY PAPERS LTD: and others---Appellants
Versus
HUMAN RIGHTS COMMISSION OF PAKISTAN---Respondent
Civil Appeal No.302 of 2006, decided on 17th September, 2014.
(On appeal from the judgment dated 23-1-2006, passed by the High Court of Balochistan, Quetta in R.F.A. No.62 of 2002)
(a) Defamation Ordinance (LVI of 2002)---
----S. 3---Civil Procedure Code (V of 1908), Ss. 19 & 20-Defamatory and libelous material published in a newspaper-Place of instituting suit for defamation-Option for plaintiff-Jurisdiction of courts in defamation cases lay both where the newspaper was published and where it was circulated, with the option to be used by the plaintiff-- Cause of action needed to arise only in part in a jurisdiction for it to be an open option for the plaintiff---Significant readership and distribution of newspaper in a city qualified as 'cause of action', in part at least
Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Kar. 515; Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525; Messrs Rahe Manzil Transport and others v. M. Ameen PLD 1963 Kar. 182; Abdul Hakim and others v. Saad Ullah Khan PLD 1970 SC 63 and Province of Punjab through District Collector Mianwali and others v. Mahmood ul Hassan Khan 2007 SCMR 933 ref.
(b) Defamation Ordinance (LVI of 2002)
----S. 9--- Defamation--- Remedies--- Damages--- "Compensatory", "general" and "aggravated damages"---Scope.
Compensatory damages themselves could be divided into general and special. Plaintiff who won a defamation action was entitled to an award of general damages, compensating him for the injury to his reputation and feelings by being proportionate to the damage which the plaintiff had suffered and nothing greater than what was necessary to provide adequate compensation and to re-establish his reputation
General damages were based on the matters of vindication, injury to reputation and injury to feelings. Plaintiff should be able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Sometimes restoration to the pre-publication status quo was not possible so the general damages purely reflected the damage caused by the defamatory publication
Unapologetic behavior of defendant could lead to award of aggravated damages. If the publisher of defamatory material was unable to establish the factual correctness of the material published, malice on the publisher's part would stand established through implication, thus fulfilling the criteria of aggravated damages
(c) Defamation Ordinance (LVI of 2002)
----Ss. 3 & 9-Defamatory and libelous material published in a newspaper against Human Rights Commission of Pakistan ("organization")---Story published in a newspaper stated that office bearers of the organization were instigators of violence, propagating anti-military sentiments through dispersal of financial rewards---Trial Court awarded damages of five million rupees against the newspaper-High Court upheld the judgment of Trial Court but reduced the damages to one million rupees---Validity---Gravity of the allegations was significant in the sense that office bearers of the organization were active in the public sphere-Allegations paved way for accusations of conspiracy against an arm of the executive by the office bearers of the organization through nefarious means-Size of the circulation of the concerned newspaper was throughout the country-Possible effects of the publication were loss of possible income for the office bearers of the organization along with loss in standing in society---Appeal was dismissed accordingly and judgment of High Court was upheld
(d) Defamation Ordinance (LVI of 2002)
----Ss. 5(b) & (c)---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE), Clauses. 2 & 3---Defamation---Defamatory material published by a newspaper---Defences---Good faith---Best practice of professional ethics---Scope---Defendant-newspaper in a case of defamation for damages, as the publisher of defamatory material, needed to prove through evidence besides pleading good faith that it was diligent in _checking facts and followed the best practices of professional ethics universally accepted---Codes of Ethics of the Council of Pakistan Newspaper Editors (CPNE) provided that press should avoid biased reporting or publication of unverified material, and avoid the expression of comments and conjectures as established fact, and that generalizations based on the behavior of an individual or a small number of individuals would be deemed unethical
(e) Defamation Ordinance (LVI of 2002)
----S. 3---Constitution of Pakistan, Arts. 4(2)(a), 14, 19 & 19A--- Defamation---Dignity of person---Constitutional obligation of State---Respect and regard for dignity of every person---Defamation of any person or citizen through spoken or written words or any other means of communication lowered the dignity of a man fully guaranteed by the Constitution, thus, not only was it the constitutional obligation of the State but all the citizens and persons living within the State to respect and show regard to dignity of every person and citizen---Anyone who committed an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same had to be dealt with under the law--- When a person was disgraced, his/her dignity was brought to almost naught, thus no lenient treatment should be shown to anyone in such regard nor anyone could plead the unbridled right of expression and right to have access to information
(f) Defamation Ordinance (LVI of 2002)
----S. 3---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE)---Defamation---Media, duty of---Irresponsible and derogatory reporting of news---Media as a whole played a vital role in reshaping political and social life, creating awareness amongst the masses about their rights and responsibilities as well as against corruption--- While performing such noble duties, the media was equally required like any other citizen to abide by the provisions of the Constitution, the code of ethics, the rules and regulations and not to resort to mud-slinging by violating standards of true professional ethics as irresponsible and derogatory reporting of news would diminish its own credibility in the eyes of the readers and viewers
Ms. Shaista Altaf, Advocate Supreme Court for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.
Date of hearing: 17th September, 2014.
JUDGMENT
DOST MUHAMMAD KHAN, J.---Through this appeal. the appellants have questioned the legality and propriety of the judgment dated 23-1-2006 passed by the High Court of Balochistan in Regular First Appeal No. 62 of 2002. The High Court reduced the decree amount from rupees five million in damages for defamation, to rupees one million.
2. The brief facts of the case are that the respondents filed a suit for the recovery of rupees one hundred million against the petitioners as damages for publishing defamatory and libelous material against the respondent organization and its office bearers. The respondents claimed the published story in the newspaper "Khabrain" on 8-3-2004, to be false, malicious and was deliberately published to harm the reputation of the respondent organization. They claimed that the publication portrayed the office bearers as instigators of violence, propagating anti-military sentiments through dispersal of financial rewards. It was further averred that the publication incorrectly stated B.L.L.F. and Dastak to be subsidiary to the respondent organization
3. The record of the case brings the number of witnesses produced by the respondents in support of their claim up to seven along with the statement of Mr. Tahir Muhammad Khan, Advocate. According to the said record, despite availing opportunities, the appellants failed to produce evidence or submit list of witnesses, leading to the judgment dated 7-1-1999 decreeing the suit in favour of the respondents, after striking off defence. An appeal filed by the petitioners was allowed by the High Court of Balochistan vide judgment dated 13-11-2001 and the case was remanded to the learned Senior Civil Judge-I, Quetta after allowing last opportunity to the appellants to produce the evidence subject to the cost of Rs.15,000/-. Both parties were directed to appear before the trial Court on 26-11-2001 with further direction to the appellants/petitioners to submit their list of witnesses on the said date along with producing their entire evidence within two months of said date. After the remand, numerous opportunities were afforded to the petitioners to produce their evidence but they failed to do so. Their evidence was again closed vide order dated 6-3-2002. The learned Judge decreed the suit in the sum of rupees five million against the appellants jointly and severely. A Regular First Appeal was filed in the High Court of Balochistan against the judgment of Senior Civil Judge-I, Quetta. The impugned judgment upheld the judgment of the Senior Civil Judge, but reduced the amount of the decree to that of rupees one million. The legal contentions are addressed below
4. The respondent organization, registered under Societies Registration Act 1860, is governed by it. The petitioner claims that Mr.Tahir Muhammad Khan, Advocate was not competent to institute a suit in view of Section 6 of the said instrument. The concerned provision lays out that societies registered under the Act can sue or be sued in the name of the President, Chairman or Principal Secretary or Trustees as determined by the rules and regulations of the Society and in default of such determination, the name of such person as shall be provided after appointment by the Governing body. The case of Harinara yan Shaw and another v, Gobardhandhas Shroff and others AIR 1953 Calcutta 140 lays out the importance of the rules and regulations of the concerned organization, basing the reasoning of who can institute a suit on behalf of the society, on the rules and regulations of that society. As noted by the High Court of Balochistan, no evidence was brought on record which could show that the rules and regulations of the respondent organization authorize the President, Chairman, Principal Secretary or Trustee to sue on behalf of the respondent organization thus forcing the first part of Section 6 to concede to the the application of the second part
5. The petitioner claims .that the Courts in Quetta have no jurisdiction to entertain the suit since the petitioners are residents of Lahore and the respondents head office is also located in Lahore, along with the fact that neither a resident nor a newspaper seller was made party to the suit. The record shows that a similar application was filed before the trial Court which was dismissed vide order dated 16-9-1997. The principle of Res Judicata under Section 11 of The Code of Civil Procedure allows the trial Court to abstain from deciding on the same ground between the same parties again. Still taking into account the reasoning, according to the respondents, the concerned newspaper is available throughout Pakistan and enjoys a significant audience in Quetta. In support of this claim, the respondents presented witnesses who stated the availability and readership of the concerned newspaper in Quetta. The petitioners did not deny this claim of the respondents nor did they cross-examine the witnesses, thus validating them. Altaf Gauhar Wajid Shamsul Hasan and another PLD 1981 Karachi 515 has been Correctly cited in the impugned judgment, laying out the jurisdiction of Courts in defamation cases to lie in both where the newspaper is published and where it is circulated, with the option to be used by the plaintiff (respondents)
6. The grievance of the petitioners is that the impugned judgment, keeping in view the above cited case, do not take into consideration the principle laid down in Section 19 of the Code of Civil Procedure
19. Suits for compensation for wrongs to person or movables.--Where a suit is for compensation for wrong done to the person or movable property, if the wrong was done within local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
The provision, in crystal and clear terms confers the option on the plaintiff/respondent is granted by law to select or opt for the judicial jurisdiction of where he resides or where the wrong was committed. Illustration (b) provided in the Code of Civil Procedure beneath the provision gives a rather apt picture which is squarely applicable in the current matter. The illustration is as follows
A, residing in [Karachi] publishes in [Quetta] statements defamatory of B. B may sue A either in [Quetta], or in [Karachi].
In the case of Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525, section 19 is taken to be an extension of section 20, C.P.C. along with there being a significant overlap, allowing any suit being referred to in section 20 to be instituted either in the Court within whose jurisdiction the defendant resides or carries on business or personally works for gain, or where the cause of action wholly or in part arises. Section 20(c) of the Code of Civil Procedure reiterates the cause of action aspect of section 19. In the case of Messers Rahe Manzil/Transport and others v.M. PLD 1963 Karachi 182 the term 'action' denotes a proceeding in which a legal demand of a right is made. In these facts, the legal demand of the respondents is the right to damages. The case of Abdul Hakim and others v. Saad Ullah Khan PLD 1970 SC 63 defined the term 'cause of action' as every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment, and which if not proved, gives the defendant a right to judgment, the readership and distribution meeting this criteria. Readership and distribution have been proved through witnesses and since they were not cross-examined, the petitioners, through their visible conduct, do not disagree on this matter, so the aspect of these facts being notional or imaginary are out of the question, as in the case of Ahmed Nawaz v. Abdul Khalique 2002 MLD 1783. The lack of cross-examination is not a point of contention since the 'cause of action' does not refer to the evidence which is necessary to prove the readership and distribution, but rather it refers to the readership and distribution, that is, the facts themselves, as in the above mentioned case of Abdul Hakim v.Saad Ullah Khan. The case of Province of Punjab through District Collector Mian Wali and others v. Mahmood ul Hassan Khan 2007 SCMR 933 highlights that the cause of action needs to arise only in part in a said jurisdiction for it to be an open option for the plaintiff. Suffice to say, significant readership and distribution in Quetta qualifies as 'cause of action', in part at least.
7. Damages are provided as a remedy under Section 9 of the Defamation Ordinance, 2002 under three headings: (1) compensatory, (2) general and (3) aggravated. Compensatory damages themselves can be divided into general and special. A plaintiff who wins a defamation action is entitled to an award of general damages, compensating him for the injury to his reputation and feelings by being proportionate to the damage which the plaintiff has suffered and nothing greater than what is necessary to provide adequate compensation and to re-establish his reputation
8. General damages are based on the matters of vindication, injury to reputation and injury to feelings. The plaintiff should be- able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Sometimes restoration to the pre-publication status quo is not possible so the general damages purely reflect the damage caused by the defamatory publication. Pain and suffering caused by the injurious defamation cannot be taken into account when it comes to a legal entity such as a registered society as in this case, but the publication specifically mentioned the office bearers of the respondent organization thus allowing this Court to lay precedent for this exception. The gravity of the allegation is significant in the sense that office bearers of the respondent organization are active in the public sphere. The allegation paves way for accusations of conspiracy against an arm of the executive by the office bearers of the respondent organization through nefarious means. The size of the circulation of the concerned newspaper is throughout Pakistan and has been established above. The possible effects of the publication are loss of possible income for the office bearers of the respondent organization along with loss in standing in society. An adequate illustration would be that of an office bearer who is also a Senior Advocate Supreme Court, whose livelihood as legal counsel can be adversely affected since it is dependent on herreputation and standing in society. The behaviour of the defendants/ petitioners has not been apologetic in the least, leading to the third category: aggravated damages. Improper or irregular conduct in connection with the publication mostly tends to arise with actions associated with the media. Simple steps such as attempts at verification, misquoting, publishing the allegations despite warnings that they are false, use of lies, subterfuge or financial inducement to obtain material or unjust intrusion of privacy. The record of the case shows that the petitioners have been granted numerous opportunities to present evidence which they have forgone
9. The defendant/appellants in a case of defamation for damages, as the publisher of defamatory material, needs to prove through evidence besides pleading good faith that they were diligent in checking facts and followed the best practices of professional ethics universally accepted. An appropriate illustration applicable in this case would be the. Codes of Ethics of the Council of Pakistan Newspaper Editors (CPNE) laying out for the press to avoid, biased reporting or publication of unverified material, and avoid the expression of comments and conjectures as established fact. Generalizations based on the behaviour of an individual or a small number of individuals will be deemed unethical. If the publisher of defamatory material is unable to establish the factual correctness of the material published, malice on the publishers part will stand established through implication, thus fulfilling the criteria of aggravated damages. Since this aspect was not brought to light in either the Courts below nor was it argued in this Court, this Court will not enhance damages.
10. Under the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, reputation of a person 'has received the highest protection in Article 4(2)(a). Further under Article 14 the dignity of man and, subject to law, the privacy of home, shall be inviolable right of each and every citizen. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, thus, not only is it the constitutional obligation of the State but all the citizens and persons living within the State of Pakistan to respect and show regard to dignity of every person and citizen of Pakistan otherwise if anyone commits an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law
11. No lenient treatment shall be shown to anyone in this regard nor anyone can plead the unbridled right of expression and right to have access to the information when the subject matter is disgraced, his/her dignity brought to almost naught because the rights with regard to expression and access to information are regulated by law, rules and regulations under which the license is granted under the Press and Publication laws
12. It is true that media as a whole is playing a vital role in reshaping our political and social life, creating awareness amongst the masses about their rights and responsibilities as well as against corruption. While performing such noble duties, the media is equally required like any other citizen to abide by the provisions of the Constitution, the code of ethics, the rules and regulations and not to resort to mud-slinging by violating standards of true professional ethics as irresponsible and derogatory reporting of news would diminish its own credibility in the eyes of the readers and viewers
13. In view of the above observations and discussions made from all the legal angles, we are of the considered view that this appeal is bereft of all legal merits therefore the same is dismissed
MWA/L-7/SAppeal dismissed.

Wednesday, 27 May 2015

Even a single day delay in 17(8) Order is not allowed

A 17(8) order is the one in which the court directs a Tenant to submit rent in the court of law. The tenant is bound to submit rent before 15th day of every month unless specifically ordered by the rent controller to be furnished before 15th.

The tenant is bound to furnish rent as and when directed by the court. On the other hand the tenant has no powers to violate the order of court once 17(8) orders are passed.

If a tenant doest comply with the orders of court, the court cannot spare such tenant even for a single day. The court is bound to pass orders under 17(9) of IRRO 2001 to evict the tenant.

If you have any tenancy related litigation feel comfortable to consult at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan
Rent Lawyer
+92-333-5339880

Eviction Petition must be decided within four months

An eviction petition is filed by the landlord to evict the tenant. It is solely for the purpose of getting the possession back from the Tenant on the grounds mentioned in section 17 of Islamabad Rent Restriction Ordinance 2001.

It is often called as ejectment petition. If the tenant is a rent defaulter, the court is empowered to pass order under section 17 (8) of the IRRO, 2001. Similarly if the tenant contempts to the order of court under section 17(8), the court is duty bound to evict the tenant under section 17(9) of IRRO, 2001.

The court doesnt have powers to let the tenant pay rent in delay. Even a single day's delay in paying rent is unbearable in the world of Rent Controller. The judge hearing and deciding the Eviction Petition is called the Rent Controller. The Rent Controller has limited powers under the statute.

The Rent Controller is bound the evict the tenant within a period of 4 months if the eviction petition is a maintainable one. For further queries feel comfortable to contact us in all kinds of rent matters at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan (Golra)
Chairperson
International Lawyer
+92-333-5339880

Monday, 25 May 2015

Penalty in Rent Agreement is Prohibited under Section 11 of IRRO

2013 C L C 963
[Islamabad]
Before Iqbal Hameed-ur-Rahman, C.J.
ZHANGE GUOGEN----Petitioner
Versus
Mst. JAHANZEBA BEGUM and others----Respondents
Writ Petition No.1728 of 2009, heard on 16th March, 2011.
Islamabad Rent Restriction Ordinance (IV of 2001)---
----Ss.10, 11 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Wilful default---Penalty, non-payment of---Increase in rent---RentController and Lower Appellate Court passed eviction order mainly on the ground that according to terms of agreement, tenant failed to pay fine to landlady for delay in payment of rent and also did not pay increased rent---Plea raised by landlady was that tenant had not paid increased rent which stood automatically enhanced after 3 years of tenancy at the rate of 25% as provided under section 10 of Islamabad Rent Restriction Ordinance, 2001---Validity---Condition of payment of Rs.500/- per day was penalty and it could not be considered as additional rent---Such penalty was specifically prohibited by section 11 of Islamabad Rent Restriction Ordinance, 2001, and agreement to that extent was void ab initio---Landlady did not show any notice issued to tenant requiring him to pay statutory rent nor any application had been moved to strike off the defence of tenant, therefore, statutory ground could not be pressed into service---High Court in exercise of Constitutional jurisdiction set aside eviction orders passed by RentController and Lower Appellate Court resultantly ejectment application was dismissed---Petition was allowed in circumstances.
Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Inayat Ullah v. Zahoor ud Din 1987 SCMR 1313; Muhammad Shaban v. Judge Family Court and another 2003 YLR 2708; Sarfraz Ahmad Khan v. District Judge, Multan and 2 others 2003 CLC 44; Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19; M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196; Muhammad Tariq v. Sardar Khan and 9 others 1998 CLC 1054; Black's Law Dictionary; Advanced Law Lexicon Dictionary by P. Ramanatha Aiyar; Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071; Messrs Habib Bank Limited v. Naseer Ahmed 1998 MLD 1765; National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others PLD 1997 SC 564 and Ch. Mussarat Ahmad v. Ch. Fazal Ahmed 2004 YLR 2905ref.
Muhammad Akram Sheikh, Barrister Natalya Kamal and Barrister Sajeel Sheryar for Petitioner.
Mian Abdul Rauf and Rana M. Irshad Khan for Respondent No.1.
Date of hearing: 16th March, 2011.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, C.J.--- This constitutional petition has been directed against the order dated 24-9-2008, passed by learned Rent Controller, Islamabad; whereby ejectment petition filed by respondent No.1 was accepted and order dated 17-2-2009 passed by learned Additional District Judge, Islamabad, whereby appeal filed by the present petitioner was dismissed.
2.The facts forming background of this constitutional petition, in brief, are that respondent No.1 is owner of shop-cum-Flat No.18, Block No.12-B, Jinnah Super Market, Shalimar 7 (shop measuring 23 x 27 and Flat consisting of three rooms with one kitchen and one bath) Islamabad, whereas the present petitioner is tenant in the above said premises. Respondent No.1 filed ejectment petition under section 17 of theIslamabad Rent Restriction Ordinance,2001 on the grounds of default in payment ofrent, violation of lease agreement and personal need etc.
3.The present petitioner/tenant opposed the petition tooth and nail by filing written reply. The learned Rent Controller settled as many as 9 issues to resolve the controversy, which are as follows:---
ISSUES.
(1)Whether the respondent is rent defaulter from the month of October, 2007 till today and is liable to be evicted? OPA
(2)Whether the respondent has violated the terms and conditions of the lease agreement dated 1-4-2005, if so its effect? OPA
(3)Whether the respondent has changed the construction structure of the demised premises without the permission of the petitioner? OPA
(4)Whether the respondent is liable to be ejected from the suit premises on the ground mentioned in the ejectment petition? OPA
(5)Whether the petition has been moved by unauthorized person by making forged signature of the petitioner? OPR
(6)Whether the petition is premature because the period of rent agreement has not been expired? OPR
(7)Whether the petition has been moved with mala fide intention just to blackmail and pressurized the respondent? OPR
(8)Whether the petition is false, frivolous and vexatious and respondent is entitled to special costs? OPR
(9)Relief.
4.The learned Rent Controller after recording the evidence of both the parties accepted the ejectment petition directing the present petitioner to vacate the demised premises within a period of 30 days. Feeling dissatisfied with the order of learned Rent Controller,Islamabad the present petitioner preferred an appeal, and the learned Additional District Judge, Islamabad after hearing both the parties dismissed the same on 17-2-2009, hence the present constitutional petition.
5.The learned counsel for the present petitioner has urged variety of arguments and contended that the ejectment petition was filed on the ground of default in payment ofrent for the months of September and October, 2007, but from the record it is proved that no default in payment of rent was committed by the present petitioner; as prior to the filing of ejectment petition, a legal notice was served upon the tenant/present petitioner, wherein allegation of non-deposit of rent was mentioned for the months of November and December, 2007 and when the said legal notice was confronted to the sole witness i.e. attorney of respondent No.1, who appeared in the witness box as AW-1 admitted that there was no default, in spite of the same a ground of default was carved out by the learned Rent Controller, which is against the law and settled norms of justice; that the petitioner diligently and responsibly made repeated attempts to submitrent to respondent No.1 through various modes: that the material floating on the surface of the record speaks volume about the mala fide of respondent No.1; that the rent of October, 2007 was sent to respondent No.1 through money orders but the landlady refused to accept the same; further another attempt was made by the present petitioner to tender the rent by sending a cheque through T.C.S (Exh.R-3), but the same also could not be delivered and the same was produced before the Court and the Court itself opened envelope as is evident vide order dated 30-7-2009; that again for payment ofrent for the month of November, 2007 money orders were sent to respondent No.1, but the same were also not accepted; that during proceedings of the instant Writ Petition, he (petitioner's counsel) wrote a letter to the post-office and then C.M No.2557/2009 was filed on 11-6-2009 and after consent of learned counsel for respondent No.1 record of money orders were brought on record, which prove that sincere efforts were made by the petitioner and the proof of the same is evident from the Post Office record and 44 money orders were sent to pay the rent for the said months, the same is on account that Post Office does not accept a money order in excess of amount of Rs.10,000/-; that hectic efforts were made by the present petitioner to tender the rent for the months of October and November first by sending money orders and then by sending cheque through T.C.S and then the present petitioner was constrained to file an application before learned Rent Controller for deposit of rent and the learned Rent Controller wrongly observed the same as a first attempt to deposit the rent and thereafter the present petitioner had been depositing the rent in the court; that if the present petitioner had sent a fictitious cheque, then he could have been prosecuted under section 489-F, P.P.C., which entails punishment of 3 years; that the learned Rent Controller observed that the present petitioner did not try to tender the rent for the months of October and November seriously within a period of 45 days as stipulated in the agreement and that the present petitioner did not comply with the condition of payment of Rs.500/- as penalty contemplated in the lease agreement; that except the issues of default and violation of lease agreement, the remaining issues were decided in favour of present petitioner by the learned Rent Controller; that section 17 of the Islamabad RentRestriction Ordinance, 2001 does not provide any penalty as a ground for eviction of a tenant and to the contrary sections 11 and 12 ibid prohibit imposition of any fine or premium and penalty to be charged for the grant of renewal or continuance of a tenancy and in this regard learned counsel has relied upon the case of Muhammad Yousuf v. Abdullah (PLD 1980 Supreme Court 298).
6.It is further added that the alleged violation of the terms and conditions, of the lease agreement is also not made out in this case; that the learned Rent Controller has acted contrary to sections 11 and 12 of the Islamabad Rent Restriction Ordinance, 2001 by treating payment of Rs.500/- per day compensation as part of rent and has not considered the sending money orders and cheque through T.C.S which had been opened by herself in the Court, which is absolutely without lawful authority and inconsistent with the settled principles of law determined by the Superior Courts of the country; that although a defaulter deserves no sympathy of law, but justice and equity does not allow the Court to carve out a ground of default. Reliance in this regard has been placed on the case of Inayat Ullah v. Zahoor ud Din (1987 SCMR 1313).
7.Learned counsel for the present petitioner further argued that in order to support the ejectment application Dr. Kamran Khan appeared as sole witness as special attorney of respondent No.1 which has not been authenticated by the Notary Public rather the same was attested by Oath Commissioner, who was only authorized to administer oath of affidavits, therefore the same is without lawful authority and of no legal effect and in this regard he has relied upon the case of Muhammad Shaban v. Judge Family Court and another (2003 YLR 2708, Lahore), wherein it has been held that:---
"Document of affidavit without certificate of the Oath Commissioner certifying that its contents were deposed before him on oath or solemn affirmation and the executant of the said document was either known to him or was identified before him by a person who was known to him, could not be deemed as affidavit and thus had no evidentiary value and could be ignored."
Reliance is further placed on the case of Sarfraz Ahmad Khan v. District Judge, Multan and 2 others (2003 CLC 44, Lahore). Hence, he urges that the power of attorney does not confer any right on the attorney to appear and make statement on behalf of respondent No.1.
8.It is further argued that there is no other evidence on record on behalf of respondent No.1 except the bald statement of AW-1; that, the learned Rent Controller clubbed three issues and failed to give the findings on each issue separately which is against the law.
9.Learned counsel for the present petitioner further added that the judgment of learned Additional District Judge is based on surmises and conjectures; that both the learned courts below are labouring under the impression that sections 11 and 12 of theIslamabad Rent Restriction Ordinance, 2001 is absolutely redundant which expressly prohibits payment of any fine, premium, penalty or compensation; that the orders of both the courts below are absolutely without lawful authority, without jurisdiction, against the law, contrary to the facts proved on record, and result of non-reading and misreading of evidence, therefore, the same deserve to be set aside and the application for ejectment filed by respondent No.1 be dismissed, further the judgment passed by the learned Additional District Judge shows that no independent analysis was made, as such also merits set aside. While concluding his arguments, learned counsel for the petitioner states that the petitioner is a foreigner and holds the Courts of Pakistan in high esteemed and prays for dispensation of justice to him.
10.Per contra, learned counsel for respondent No.1 argued that the present petition is not maintainable on multiple grounds; that the present petitioner is a rent defaulter, which stands proved on record. He invited attention of the Court towards the order dated 28-11-2007 passed by the learned Rent Controller on the application of present petitioner for deposit of rent whereby it was directed that monthly rent be deposited till the 15th of each month at his risk and costs. The present petitioner deposited rent for one year w.e.f. 1-10-2007 to 1-10-2008 on the same day i.e. 28-11-2007. Thereafter,rent was deposited on 27-10-2008 for next 6 months. The present petitioner was required to deposit the rent for October,2008till15-10-2008,butthesamehasbeendepositedon 27-10-2008 i.e after 12, days of stipulated period as directed in order dated 28-11-2007 and there is no explanation to that effect; that the present petitioner has concealed this fact from the Court and deliberately did not tender the receipts of payment of rent and, therefore, the present petitioner has not come to the Court with clean hands, hence he is not entitled to discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and this default was committed during the pendency of appeal; that first lease agreement was executed on 1-4-2005 for a period of 4 years; first year's rent was paid in advance; that there was an increase of 5% for remaining three years. The learned counsel after reading clause 5(e) of lease agreement contends that in case of tenant failure to pay the advance rentwithin ten days of its due date, he was to pay Rs.500/- per day additionally to the landlady commencing from the first day till all the dues including the additional amount so levied is cleared, which has not been paid; that it is not a penalty clause but one of the terms of the tenancy agreement and the same may be termed as additional rentwhich forms part of rent due; that sections 11 and 12 of the Islamabad Rent Restriction Ordinance, 2001 are not applicable to the instant case, inasmuch as the same relates to renewal or continuance of a tenancy.
11.Learned counsel for respondent No.1 after reading section 10 ibid strenuously urged that said provision of law provides that rent shall stand automatically increased at the end of every three years of its tenancy i.e. twenty-five per cent of the rent already being paid by the tenant and thus the provisions of said section had been violated by the petitioner by not increasing the rent and thus the petitioner is deemed to beadefaulteronthisgroundalso.Inthisregardhehasrelied upon the case of Sikandar Hayat v. Hasina Sheikh (PLD 2010 Supreme Court 19).
12.It is further argued that the constitutional jurisdiction under Article of 199 of the Constitution can only be invoked when there is a jurisdictional defect and the evidence cannot be re-assessed in constitutional jurisdiction; that there are concurrent findings of both the courts below which cannot be disturbed by this court in extraordinary jurisdiction under Article 199 of the Constitution; that special power of attorney was duly executed in accordance with law, even otherwise, this ground was not taken by the petitioner at the time of filing of appeal before the learned Appellate Court, therefore, the same stands admitted; that documents are to be proved in accordance with law, coming from proper custody in evidence through a witness either in the statement of private individual, and if the same is in proper custody through summoned witnesses and the same cannot be produced through statement of counsel without oath; that the documents produced by the petitioner are neither original nor attested and it is not the stage of evidence where document can be filed and considered in evidence. Both the learned Courts below passed the impugned orders after considering and evaluating the evidence. The findings are in order; that the petitioner has not deposited the rent after statutory increase of 25% and by the dent of above submissions, it is prayed that the petition may be dismissed.
13.In rebuttal the learned counsel for the petitioner submitted that citations were referred to before the learned Rent Controller, but the same were ignored which is a violation of dictums of Superior Courts. That the alleged delay in tendering rent is not a ground either in the ejectment petition or at any other forum i.e. learned Appellate Court; that at present the rights of the parties are to be determined which accrued at the time of filing of lis, which is settled principle of law and jurisprudence; that subsequent events unless expressly assailed or brought to the notice of Court do not become subject-matter of the controversy; that statutory increase shall be applicable from 1st of April, 2012, even otherwise, respondent No.1 has not submitted any application questioning the default in payment of rent accrued due to statutory increase; that the learned counsel for respondent No.1 has argued beyond the scope of eviction petition; that if the present petitioner has done any thing, respondent No.1 may file fresh eviction petition; that the concurrent findings have been recorded against the law and facts; that the documents brought on record are receipts of money orders which are in possession of Post Office and the same has been done after the consent of learned counsel for respondent No.1, therefore they are estopped to raise objection to the same at this stage.
14.I have heard the arguments and perused the material made available on the file.
15.The arguments advanced by the learned counsel for the petitioner as well as that of respondent No.1 have been taken into account by this court in a very conscious manner. Both the Courts below have decided the matter basically on the ground of default. The learned Tribunal as well as Appellate Court decided the ejectment petition and appeal of petitioner after holding the petitioner to be a defaulter mainly on the ground that lease agreement dated 1-4-2005 contains a specific clause whereby Rs.500/- per day is to be paid in case of default in payment of rent. It is an admitted fact that default had been alleged by respondent No.1 in her legal notice to be that of November and December, 2007, but while filing ejectment petition she has stated that the petitioner committed default for the months of September and October, 2007. As such, there is a clear contradiction in the contention of respondent No.1 regarding default in payment of rent. The only witness of respondent No.1 is Dr. Kamran Khan, who appeared as AW-1 as her attorney. He in his cross-examination admitted that the tenant is mentioned as defaulter w.e.f. 1st October, 2007 in the ejectment petition. In the next sentence he further admitted that in the legal notice sent on behalf of respondent No.1/landlady default is mentioned to be that of November/December, 2007. The moot points involved are whether the petitioner is rent defaulter and he has violated the terms of agreement. The agreement is admitted between the parties. Respondent No.1 in her ejectment petition vide para (a) of grounds alleged that the tenant/respondent is rent defaulter from the month of October, 2007 till to date and is liable to pay Rs.500/- per day as compensation. The petitioner in his written reply vide para No.3 of facts asserted that firstly he tendered the rent to landlady but she refused to receive the same, therefore he sent the rent through cheque through courier but she refused to receive the same. Then he sent money orders but again she refused. When efforts of the petitioner did not yield any fruit then he was constrained to file application for deposit of rent and thereafter on the order of learned Rent Controller he deposited the rent. From above, it is apparent that the intention of the petitioner from very beginning was that he tried his level best to pay the rent since October, 2007. In order to prove his contention, the present petitioner got examined his attorney Waheed Ahmed, who appeared in the witness box as RW.1 and submitted his affidavit, wherein the same facts regarding payment of rent have been narrated. The petitioner produced the receipt of courier along with envelope before the court and vide order dated 30-7-2008, the envelope was opened in the court, wherein cheque valuing Rs.5,02,700/- dated 31-10-2007 was found. All these facts are sufficient to prove that the petitioner had tried his level best to pay the rent due after 1-7-2007. Although, the rent for the months of October and November, 2007 or for 6 months advance has not been paid within the agreed period as per lease agreement, but from the record it is crystal clear that circumstances were absolutely beyond the control of the petitioner. The receipts of money orders have been placed on record in the instant writ petition which also substantiate the contention of petitioner that he seriously and bonafidely attempted to pay the rent to the landlady. As regards the contention of learned counsel for respondent No.1 that the said receipts/documents cannot be considered at this stage, record transpires that during pendency of this Writ Petition, the petitioner moved C.M. No.2557 of 2009 on11-6-2009, seeking permission to place on record letter from the DirectorofAccounts,PostOfficetotheChiefPostmaster,PostMall F-7, Islamabad dated 22nd April, 2009, money order receipts dated 25-10-2007 (total Number, 22) and money receipts dated 8-11-2007 (total number 22). On 24-6-2009, Rana M. Irshad Khan, Advocate, learned counsel for respondent No.1 raised no objection for the acceptance of this civil miscellaneous, therefore, said C.M. was accepted and it was observed that attached documents will be considered as pert of the writ petition. Learned counsel for respondent No.1 has laid much emphasis that the same documents cannot be taken into consideration at this stage, but I am unable to see eye to eye with him inasmuch as in the case of M.Y. Khan v. M.M. Aslam and 2 others (1974 SCMR 196) it was held that there is no bar to the High Court taking evidence or even additional evidence at the writ stage.
16.Learned counsel for respondent No.1 has stressed that rent for the month of October, 2008 should have been deposited till 15-10-2008 as per order of learned RentController, but the same was deposited on 27-10-2008 i.e. after delay of 12 days and the petitioner is also defaulter on this score. To resolve the controversy, a glance over the previous rate of rent, payment and increase of 5% of rent is necessary. Undisputedly, lease agreement was executed on 1-4-2005 and the rate of rent was fixed at Rs.75,000/-, which was for first one year and thereafter the same was to be increased @5% per year for the remaining three years. The detail and increase of rentis as follows:---
Period
Rent
1-4-2005 to 31-3-2006
Rs.75,000/- Per Month
1-4-2006 to 31-3-2007
Rs.78,750/- Per Month
1-4-2007 to 31-3-2008
Rs.82,687.5 Per Month
1-4-2008 to 31-3-2009
Rs.86,821.87 Per Month
It has come on record that the petitioner has paid the rent till 30-9-2007 to respondent No.l. It is also an admitted fact that the petitioner deposited an amount of Rs.11,05,000/- as per order of learned Rent Controlleron28-11-2007.Thereafter,hehasdepositedtherentof6 months on 27-10-2008. In the challan form dated 28-11-2007 through which the petitioner deposited the rent of Rs.11,05,000/-, it is mentioned that the same is being paid for the period 1-10-2007 to 1-10-2008. The contention of petitioner as mentioned in para No.5 of Facts of writ petitionisthatduetoclericalmistakethedatewasmentionedas 1-10-2008 instead of 31-10-2008. Whether it was so, the same can easily be ascertained by reckoning the monthly rent. The rate of rent for the period 1-10-2007 to 31-3-2008 was Rs.82,687.5 per month which comes toRs.4,96,125/-for6months.Therateofrentfrom1-4-2008to 30-9-2008 @ Rs.86,821/87 which becomes Rs.5,20,931.22 and thus the total rent w.e.f. 1-10-2007 to 30.09.2008 (for 12 months) comes to Rs.10,17,056.22 and when the rent of October, 2008 @ Rs.86,821.87 is included it becomes Rs.11,03,878.09; whereas the petitioner has deposited an amount of Rs.11,05,000/-. In this way it is crystal clear that he has not only deposited the rent w.e.f. 1-10-2007 to 31-10-2008 (for 13 months) but he has deposited an amount of Rs.1122/- in excess. As far as mentioning of date is concerned the above calculation proves that it was just a clerical mistake. It is settled law that clerical or bona fide mistake should not be allowed to come in the way of substantial justice. Hence the petitioner cannot be held to be defaulter of rent for the month of October, 2008. The objection raised by learned counsel for respondent No.1 holds no water and has not been substantiate from the record.
17.Under the law mere non-payment of rent is not default unless the same is proved to be wilful. In the case of Muhammad Tariq v. Sardar Khan and 9 others (1998 CLC 1054 Lahore) it has been held as under:---
"Mere non-payment of rent would not ipso facto result in eviction of tenant unless default was proved to be wilful."
The word "wilful" has been defined in Black's Law Dictionary in the following manner:---
"Voluntary and intentional but not necessarily malicious."
P. Ramanatha Aiyar's Advanced Law Lexicon Dictionary defines "Wilful Default" as under:---
"Wilful default in the payment of rent means that the default was intentional, deliberate, calculated and conscious with full knowledge of its consequences.
It is further elaborated that if the default has occasioned on account of ignorance accident or compulsion or circumstances beyond the control of the tenant, it cannot be termed as wilful default."
As narrated above, the petitioner has tried his level best to pay the rent, therefore, there is no element of negligence on his part. Reliance in this regard can be placed on the case of Inayat Ullah v. Zahoor-ud-Din and another (1987 SCMR 1313), wherein it was laid down as under:---
"In cross-examination he admits that the rent of two months was sent to him by the appellants though money-order and the same was returned by him as refused and unpaid. However, he has not uttered a single word about the alleged willful and deliberate default. This shows that the respondent deliberately created difficulties in the way of appellants by not accepting the rent in the hope that some omission or slip on the part of the appellants may enable him to carve out a ground for their eviction. On the other hand, the appellants fully realized the situation and being conscious of their liability continued to pay rent properly. The conduct of the appellants indicates no element of negligence on their part. As soon as the respondent refused to receive therent, the appellants reasonably adopted the alternate prescribed mode of tendering therent by way of depositing it with the Rent Controller consistently. The learned RentController as well as the learned Appellate Authority failed to notice this aspect of the case and decided the matter in issue against the appellants arbitrarily without any cogent evidence on the file."
Further in the case of Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others (2010 SCMR 1071), the apex Court laid down as under:---
"Late deposit of rent on a few occasions during all such long occasions would be inconsequential, moreso when tenant every time had been depositing rent in lump sum for three months.-- Tenant had not committed default in payment of rent in circumstances. Ejectment petition was dismissed."
For what has been discussed above, the delay in deposit of rent cannot be termed as wilful default.
18.As regards the violation of clause 5 (e and f) of lease agreement is concerned, I have focused my attention to this aspect. To elucidate and comprehend the proposition the same are re-produced as under:---
(e)The lessee shall pay every six months rent in advance within ten days from the day it becomes due. In case of lessee's failure to pay the advance rent within ten days of its due date, he shall have to pay Rs.500/- per day additionally to the lessor commencing from the first day till he clears all the dues including the additional amount so levied.
(f)Further in the event of failure of the part of the lessee to pay the rent (including other dues) within 45 days from its becoming due the lessor reserves the right to cancel this agreement and ask the lessee to vacate the premises of the shop-cum-flat with immediate effect. The lessee shall have no objection to it.
19.The learned Rent Controller held that the petitioner failed to pay the rent at the due date, subsequently he paid the rent but did not pay the amount of penalty i.e. Rs.500/- per day. Section 11 of the Islamabad Rent Restriction Ordinance, 2001 clearly prohibits the imposition of penalty which reads as under:---
"11.Landlord not to claim in excess of fair rent.--- The landlord shall not claim or receive any premium or other like sum in addition by fair rent or any rent in excess of such fairrent and any agreement for payment of any sum in addition to rent in excess of such fair rent shall be void. "
KeepinginviewtheaboveprovisionoflawIhavenohesitation toholdthatconditionofpaymentofRs.500/-perdayisa penalty and it cannot be considered by stretch of imagination as additionalrent,whichhasbeenspecificallyprohibitedbysection 11ibidandthustheagreementtothisextentisvoidabinitio.In this regard I am also fortified by the case of Muhammad Yousuf v. Abdullah, (PLD 1980 Supreme Court 298), wherein it has been held as under:---
"Ordinance VI of 1959 having expressly prohibited landlord from raising anything in excess of fair rent and having specified grounds of eviction of tenants, both such stipulations, held, illegal and not enforceable."
Moreover, in the case of Messrs Habib Bank Limited v. Naseer Ahmed (1998 MLD 1765, Peshawar) it was held that:---
"Covenant violative of law would have no legal effect... Terms of lease agreement which were contrary to provisions of Cantonments Rents Restriction Act, 1963 were of no consequences as no estoppels could be against statute."
20.Learned counsel for respondent No.1 has also urged that the petitioner has not paid the increased rent which stood automatically enhanced after 3 years of tenancy @ 25% as provided under section 10 of the Islamabad Rent Restriction Ordinance, 2001. Neither the learned counsel has shown any notice issued to the petitioner requiring him to pay the said statutory rent nor any application has been moved to strike off the defence of tenant. Therefore, statutory ground cannot be pressed into service. Moreover, in the case of National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SUPREME COURT 564), it was held as under:---
"Nothing was brought on record to suggest that landlord in consequence of statutory increase in rate of rent sent any notice of such increase to tenant. Finding of High Court that tenant had become defaulter by mere non-payment of rent according to enhanced rate, was not warranted. Default in payment of rent to justify ejectment of tenant was not proved in circumstances."
Hence, both the learned Tribunal as well as Appellate Court had wrongly declared the petitioner defaulter, the ground of default is held to be carved out by the courts below. The petitioner cannot be considered to be a wilful defaulter and as such concurrentfindings of both the courts below are liable to be set aside and in this regard reliance is placed on the case of Ch. Mussarat Ahmad v. Ch. Fazal Ahmed (2004 YLR 2905 Lahore), wherein it has been held as under:---
"Plea that concurrent findings of facts rendered by Courts below, were not amenable to extraordinary jurisdiction of High Court, was not a hard and fast rule. When facts were admitted and matter of controversy was related to the question of interpretation of law or if concurrent findings of facts were based upon misreading, non-reading of evidence, ignorance of material facts/documents, sanctity attached to such concurrent findings of fact would evaporate in the air and High Court would have full powers and complete and ample jurisdiction to examine and check validity of such concurrent findings of fact and to pass an appropriate order according to the interest of justice."
21.In view of above perspective, the instant petition is accepted and both the impugned orders dated 24-9-2008 passed by learned Rent Controller and dated 17-2-2009 passed by learned Additional District Judge Islamabad are set aside and the ejectment petition filed by respondent No.1 would be deemed to be dismissed.
MH/30/Isl.allowed

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