1989 PLP 3560 (MLD)

This First Rent Appeal is directed against the order dated 7-4-1985 passed by the XVth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application was allowed and the appellants were directed to hand over possession of the premises in dispute to the respondent within one month from the date of the order. The facts leading to the filing of the above appeal are that the respondent is the owner/landlord in respect of the Shop No. C/140, situated in the main commercial area, opposite Masjid-e-Memoora, behind Cafe Liberty, P.E.C.H.S.Ltd., Karachi and predecessors of the appellants was the tenant on the agreed monthly rent of Rs.

75. The respondent filed eviction application No. 1248/79 against the predecessors of the appellants on the ground of default in payment of rent for the months of December, 1978, January and February, 1979. The respondent pleaded in the eviction application that "during last three months several detuands were made personally by the son of the respondent who has been collecting rent from the opponent on behalf of the applicant for last seven years." The predecessors of the appellants resisted the eviction application. He pleaded that the respondent used to collect accumulated rent sometime after months and sometimes after 3 or more months. He also pleaded that the respondent wanted the enhancement of rent from Rs. 75 to Rs. 300 and had been pressing hard for the same but he did not agree to such an exhorbitant and unreasonable enhancement. The said tenant was taken by surprise when he received the notice of the case. He also pleaded that rent was remitted but it was refused as such voluntarily deposited in Misc. Application No. 2580/79. The respondent filed his own affidavit-in-evidence besides affidavit-in -evidence of his son Fazal Mohammad Ahmed. Appellant No. 3 filed his own affidavit-in-evidence besides affidavit-in-evidence of Zahoorul Hassan. They were cross-examined by the learned counsel for the respective parties. The respondent stated in his affidavit-in-evidence that late Ziauddin was irregular in payment of rent. He committed default in payment of rent for December, 1978 to February, 1979 in spite of demands and representations. He denied the allegation of enhancement of rent. He stated that late Ziauddin did not tender the rent to him or to his sons. He admitted in his cross-examination that he used to go to collect the rent and since last eight years his son used to go to collect the rent. To a suggestion in cross-examination he replied that original tenant used to visit his place and he knew his address. He denied the suggestion that tenant was not in the knowledge of his residential address. To a question he replied that he used to go every month to receive the rent. He denied the suggestion that he did not use to go on every month to collect the rent. He denied that from the month of December, 1978 to February, 1979 he had not gone to collect the rent. He denied the suggestion about refusal of money order. He also denied the suggestion that his son also had not gone for the above months to collect the rent. Fatal Mohammad stated in his affidavit that he used to go to collect rent from the tenant. He stated that tenant was very irregular in payment of rent and he did not pay rent for the disputed premises in spite of his personal representations and demands. To a suggestion in cross-examination he replied that he used to go every month to collect the rent. He also replied to a question that he used to issue receipt on every month. He denied the suggestion that he used to go after interval of two or three months to collect the rent from the tenant. He denied the suggestion that the eviction application was filed in order to increase the rent and to give the shop in dispute on rent on `Pugri'. D.W. Zahoorul Hassan stated that the respondent and his son collected rent in his presence on innumerable times. He stated that it was practice of the respondent to collect accumulated rent for 2 or 3 months and the respondent never collected rent for one month. He also stated that the respondent never disclosed his residential address or place of residence to the original tenant. To a question in cross-examination he replied that respondent used to collect rent at the premises in question. D.W. Naimuddin stated in his affidavit-in-evidence that the respondent used to come himself and collect rent from shop. He stated that the respondent never collected rent in every month. He produced the rent receipts. He admitted in his cross-examination that the respondent did not give any notice for enhancement of rent. He also produced photo copy of money order as Ext. 0/15. On the perusal of the above evidence the Controller allowed the eviction application as stated in the earlier part of this judgment. I have heard the learned counsel for the parties and perused the impugned order. I have perused the rent receipts O/1 to 0/15 produced by the appellants. A perusal thereof shows that the rent was paid before the due date. Out of the 14 receipts, twelve receipts are for two months. One receipt is for one month only. The version of practice is not supported by any documentary evidence on record. In view of this matter the initial burden of practice was not proved in the instant case. The other plea of enhancement of rent is also devoid of force. The last plea that late Ziauddin was not aware of the address of the respondent is also deviod of force. It seems that the Rent Controller rightly held that late Ziauddin was aware of the address of the respondent as he sent money order on 19-4-1979 and notice of eviction application was received by him on 21-4-1979. It is thus clear that, the rent for December, 1978 to February 1 of 1979 was not tendered or cleared upto the filing of the eviction application by the late Ziauddin. In view of the facts stated above the default has been proved and Rent Controller has rightly allowed the eviction application. The appeal having no merit is dismissed. However, I allow four months time to vacate the: shop in dispute failing which writ of possession will be issued without any notice to the appellants. In the circumstances of the case the parties shall bear their own costs. M.Y.H./7-96/K. Appeal dismissed.