1989 PLP 1223 (CLC)

Khan Sanaullah for Respondent. Date of hearing: 15th November, 1988. This appeal arises out of the order of the learned 1Vth Senior Civil Judge and Rent Controller, Karachi, dated 25‑3‑1985, whereby he has rejected the ejectment application filed by the appellant against the respondents for their eviction on the ground of default in payment of rent for the months of April, and May, 1979 and from Ist June, 1981 to 30th November, 1981. The respondents are admittedly the tenants of the appellant in respect .of office premises measuring 11,455 sq. fts. 5,800 sq. fts. on the first floor and 5,655 sq. ft. on the second floor) of the Minarets Building, also known as Bombay Life Insurance Building, at Talpur Road, Karachi (hereinafter called 'the demised premises') at a monthly rent of Rs.1,600 that is ns.800 p.m. for the first floor and Rs.800 p.m. for the second floor. It was on 3‑12‑19HI appellant filed an application for eviction. stating that the were in arrears of rent amounting of Rs.9,600 for the .1‑6‑1981 to 30‑11‑1981 and Rs.3.200 towards the arrears of rent for the months of April and May, 1979. The total amount of due on the date of filing the application was stated to be Rs.12,

800. The respondents contested the said application by filing the written statement denying the default in payment of rent as alleged by the appellant. They set up the defence as under:‑ "

9. That the contents of para 4 are denied as the opponent has been punctually and regularly paying the rent. The tenancy is from the period of pre‑partition days namely the opponent has been paying rent since 1943 and the practice since then has been that the applicant used to send pre‑receipt bill for every month and the opponent according to the prescribed procedure used to get sanction and approval from the Accounts Department, Government of Sind and after approval from the Accounts Department, who used to send the cheque and the opponent after cashing the cheque, used to pay the cash amount to the applicant. This has been the continuous practice from the year 1943 till now. The photocopies of the receipts for the year 1980 to 1981 (January 1980 to May 1981) are filed herewith." The default in respect of the months of April and May, 1979 was also denied. In short, the case of the respondents was that the appellant had not followed the practice as described in pragraph 9 reproduced above, which had become binding upon him by virtue of mutual agreement. In support of his case, the appellant examined Mr. Anwar Hussain, Estate Officer; whereas on behalf of the respondents, Mr. S. Hidayatullah, Deputy Director, Food, Karachi Region, filed his affidavit‑in‑evidence. The learned Rent Controller, vide his impugned order, rejected the application .as stated above. Hence this. appeal at the instance of the landlord. I have heard Mr. Muhammad Anis, learned counsel for the appellant as well as Mr. Khan Sanaullah Khan, Advocate, who represented the respondents. I have also gone through the pleadings of the parties, the affidavits of witnesses respectively filed on behalf of the parties, as well as the documentary evidence brought on record. Before proceeding further to deal with the contentions raised by the learned counsel for parties before me, I deem it proper to reproduce hereunder the finding recorded by the learned Trial Court on the solitary issue of default involved in the case. It reads as under:‑ "Admittedly as a matter of practice, the applicant has been receiving a monthly rent from the opponent on issue of pre‑receipt bills. It is admitted position that there is procedure of Government Officers for making payments. Firstly pre‑receipt bills to be prepared and thereafter bills are to be posted by accountants office. In the instant case, applicant has not filed pre‑receipt bills for alleged period of default. Non‑issue of pre‑receipt bills on the part of applicant does not amount to negligence on the part of opponent. Even otherwise on receipt of pre‑receipt bills the Government took action and bills were put under process. Learned counsel for the applicants have relied on PLD 1967 SC page (?) wherein it has been held that default to be proved equally provided parties are private Government (sic). This authority is not applicable to the present circumstances of the case because there was practice of receiving payment after pre‑receipts bills prepared by the landlord. In these circumstances opponents are not wilful defaulter and as such they cannot be evicted on this sole ground. I, therefore, answer point No.l in negative." Mr. Muhammad Anis, learned counsel for the appellant vehemently urged that the impugned order of the learned Trial Court suffers from misreading and/or omission to read the evidence available on record. The learned counsel for the appellant invited my attention to the copies of the letters produced by the appellant's witness along with his affidavit‑in‑evidence as Annexures A/3, A/4, A/5, A/6 and A/7 (appearing at pages 69 to 77 of the Trial Court's record). He also drew my attention to the documentary evidence (photo copies of pre‑receipted bills of June, 1981 to November, 1988) produced by the witness of the respondents prevalent at pages 339 to 359 of the Trial Court's record. A perusal of the said documentary evidence clearly indicates that the appellant had been regularly sending the pre‑receipted bills, in duplicate, to the respondent No.2, namely the Deputy Director, Food Karachi, all for the aforesaid months in question (i.e.) June, 1981 to November, .1981). The originals of the copies of the letters produced by the appellant vide Exhibits A/3 to A/7, as stated above, are available in the record of the respondent A No.2, the photo copies whereof have been produced by Dr. Syed Hidayat Hussain Rizvi, Deputy Director Food, Karachi Region. Karachi, at pages 339, 343, 347, 351 and 355 of the lower Court's record. The appellant's letter dated 26‑11‑1981 addressed to the respondent No. 2, forwarding there under the pre‑receipted bills for November‑, 1981 has also come from the possession of the respondents. They are available at pages 357 and

359. The pre‑receipted bills for the months of June, July and August, 1981 were passed by the Assistant Director Food, Karachi Region, on 8‑9‑1981, whereas the pre‑receipted bills for September, October and November, 1981 were passed by the, same Officer on 29th September, 13th November and 5th December, 1981 respectively. With regard to the default in payment of rent in respect of months of April and May, 1979, the learned counsel for the appellant drew my attention to the copy of the letter (Exh. A/8) written by the respondent No.2 to the Director, Food, Government of Sind, Karachi, on 15‑3‑1981 (a copy whereof had been endorsed to the appellant) wherein it is stated that the payment of arrears of rent for the months of April and May, 1979 were outstanding against the respondents the above‑named witness of the respondent during his cross‑examination has deposed about this document as under:‑ "

11. I See Exh.A/8 which was written by the Deputy Director Food, Karachi Region to the Director Food and Copy was forwarded to the applicant. The rent of April and. May, 1979 was also due. This was not paid due to paucity of funds. He has also admitted that the rent for the months of June, 1981 to November, 1981 was not paid to the appellant. He, however, stated that the payment was not made as the appellant's man had not come to collect the same as per practice. It was so pleaded in the written statement. Mr. Khan Sanaullah Khan, the learned counsel for the respondent, firstly, prayed for an adjournment on the ground that the position on record was quite confusing. He could not, however, draw my attention to anything, which could lend support to his above observation. He then asked for adjournment as he wanted further study the case. I did not find any justification to do so particularly in view of the earlier adjournment obtained by him. At any rate, in view of absolutely clear position as it is borne out from the documentary evidence referred to above, and the admission mad? by the ‑witness of the respondent, I am convinced that the impugned order of the Trial Court is absolutely arbitrary and wholly perverse I cannot help expressing my strong disapproval and regrets for it I The statement made during his cross‑examination by the respondents' witness to the effect that the payment of the rent for the months in question could not be made to the appellant because their man did not turn up to collect the amount is, firstly, contrary to the averments made in the written statement and, secondly, it is for the debtor to find out the creditor and not vice versa. In any case it was the responsibility of the respondents to pay the amount of rent for the months in question. Unfortunately, they came out with a wholly false plea. Since I am satisfied, after going through the record of the Trial Court and the documents produced by the respondents themselves, that the default in payment of rent as claimed in the application for eviction has been proved, I, therefore, allow the appeal, set aside the impugned order and direct the respondents to vacate the demised premises and hand over its vacant and peaceful possession to the appellant. At this stage Mr. Khan Sanaullah Khan, learned counsel for the respondents requests that one year's time may be allowed to the respondents to vacate the demised premises. Mr. Muhammad Anis, learned counsel for the appellant, on the other hand, is agreeable to the grant of six months' time to vacate the premises, subject to the regular payment of the monthly rent to the appellant. In view of the consent given by the learned counsel for the appellant, I allow six months' time to the respondents to vacate the premises, subject to payment of rent of the subsequent months as per tentative order passed by the learned Rent Controller. The failure on their part to do so would render them liable to be evicted forthwith without notice. The parties are, however, left to bear on their own costs. M. Y. H./T‑42/K Appeal allowed.