2010 PLP 1660 (CLC)

RAUF AHMAD SHEIKH, J

The appellant has challenged order dated 29-1-2004 passed by Additional Rent Controller, Rawalpindi Cantonment, whereby an ejectment petition filed by the appellant/petitioner was dismissed. The appellant has sought ejectment of the respondent from Shop No.4106, Taimoor Raod, Gawalmandi, Rawalpindi Cantonment (hereinafter called the rented shop). It was alleged that respondent did not pay the rent of the rented shop at the agreed rate i.e.Rs.5,000 per month from 1-7-2009 till institution of the petition i.e. 31-1-2001. The respondent contested the petition and contended that the rate of rent is Rs.3,000 per month and petitioner being greedy person had demanded the payment at the rate of Rs.5,000 per month. It is contended that the rent was regularly paid at the rate of Rs.3,000 per month but the receipts were not issued by the respondent/landlord. It is contended that the rent was paid in cash up to May, 2001. Accordingly, the learned Rent Controller framed the following issues: (1) Whether the respondent is a rent defaulter? OPP. (3) What is the rate of rent? OPP.

2. After recording the evidence and hearing arguments the learned Additional Rent Controller, dismissed the ejectment petition through the impugned order.

3. The learned counsel for the appellant has contended at the first instance that learned Rent Controller vide order dated`7-9-2001 had fixed the tentative rate of rent at Rs.4,000 per month and directed the respondent to deposit a sum of Rs.1,12,000 as arrears before 10-12-2001 and also to deposit the monthly rent by 5th of each month but he has deposited arrears of rent on 10-12-2001 and rent for August 2002 on 5-8-2002, so he was defaulter and liable to ejectment on this ground alone as the delay in deposit could not be condoned: In support of the contention raised reliance is placed on Malik Nazar Hussain v. Commander (R) Zafar Iqbal and 6 others PLD 2006 Lah. 684, Tanveer Ahmad v. Mst Abida Yasmin Butt 1996 CLC 1068, Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR

557. Controverting these arguments, the learned counsel for the respondent has contended that 9-12-2001 and 4-8-2002 were Sundays and holidays so rent was deposited on the next dates and no default was committed. In view of the fact that both these dates were Sundays and holidays, the rent could have been deposited on the next days. Moreover, the rent for August 2002, could have been deposited before 5-9-2010 in view of the order dated 7-9-2001, so no default was committed by any stretch of imagination. The case law cited at the bar is not applicable on the facts of the present petition.

4. According to the appellant, the rent from July, 1999 till institution of the petition was not paid. The Attorney of the appellant in his affidavit in evidence categorically stated that the rent for this period has not been paid. The contention of the respondent in the affidavit in evidence was that he paid the rent for the period from July, 1999 to December, 2001 in advance at the rate of Rs.3,000 as the landlord had stated that he required a sum of Rs.one lac urgently to send his son to America. Tauqir Ahmad, RW-2 and Mazhar Ayub Soni, RW-3 stated similar facts.

5. The affidavit of the attorney of the landlord whereby it is stated on oath that the rent was not paid will discharge the initial onus and now it was for the tenant to prove that he had in fact paid the rent. In this respect reliance is placed on Mst. Maqsood Begum and others v. Hamid Mahmood Butt 1999 CLC 391 and Azeem-ud-Din (deceased) through his legal heirs v. Mst. Hamida Begum and 2 others PLD 1993 Kar.

50. The respondent in the written reply had categorically stated that the rent was regularly paid up to May 2001 but not mentioned that a sum of Rs. one lac on account of rent for 30 months was paid in advance. It appears that this has been tailored as an excuse for non-payment. It is basic law that one cannot plead a fact, which is not specifically embodied in the pleading. The respondent/tenant has not contended that he had paid the rent in lump sum for July, 1999 to December, 2000. No receipt inter alia proving that a sum of Rs. one lac was paid has been produced. Even otherwise the rent for 30 months according to the rate mentioned by the respondent was not one lac. This shows that the contention of the respondent is false. The affidavits in evidence of the RWs Nos. 2 & 3 in this respect have no value because they are employees of the respondent and were not produced for cross-examination. The respondent, therefore, is defaulter, pure and simple. The learned Rent Controller failed to appreciate the evidence in its true perspective. The findings recorded by the Rent Controller are not sustainable, the same are reversed.

6. The learned counsel for the respondent has vehemently contended that Dr. Agha Adil Shaukat, attorney of the appellant had no authority to file the ejectment petition and same was not maintainable. The copy of the general power of attorney annexed with the petition clearly shows that the appellant had given his attorney an authority to file an ejectment petition and appear before the Rent Controller and other Courts up to the Supreme Court of Pakistan. In view of this general power of attorney, the objection as to maintainability of the ejectment petition or the appeal has no weight in the eyes of law.

7. For the reasons supra, the appeal is allowed and the impugned order is hereby set aside. Consequently, the ejectment petition is accepted with costs. The respondent is directed to deliver vacant possession to the appellant/landlord within two months from today. H.B.T./A-163/L Appeal allowed.