1994 PLP 1915 (CLC)

(i) Annexure `A' to affidavit‑in‑evidence of respondent Fida Hussain Tapal is a copy of compromise application in Rent Case No. 1096 of 1951 entitled Fayyaz Mirza and others and Mulla Asghar Ali Baker Ali. In his cross‑examination the respondent admits this document and his signatures on it. Fayyaz Mirza and others were the tenants in the building and they had filed a joint application before the Rent Controller for the fixation of rent. Mulla Asghar Ali Bakar Ali was the then landlord. Eighteen tenants are listed in the compromise application. Appellant is listed at Serial No. 4 as "Idu Allauddin". Similarly, at Serial No. 2 the name is "Faiyaz Mirza Hussain Mirza", at Serial No. 3, the name of the tenant is "Haji Abdul Karim Haji Essak", at Serial No. 5 the name is "Muhammad Salehin Niamatullah", at Serial No. 6 the name of the tenant is "Muhammad Osman Muhammad Urner", at Serial No. 8 the name is "Alladitta Rahim ljux", at Serial No. 9 the name is "Raziuddin Gayasuddin", at Serial No. 11 the name is "Kifayatullah Inamullah" and so on. In certain Communities there is a practice to write double names. There is absolutely no doubt that all these double names stood for one person. Even the appellant admitted in his cross‑examination that he alone had signed on behalf of the tenant on the back of Annexure `A' at Serial No.

4. If Idu and Allauddin had been two different persons, the word "and" would have been used between the two names and both of them would have signed this compromise application. (ii) Even if "Idoo Alauddin were two different persons, then both of them have been sued and Allauddin must be deemed to have been proceeded against ex parte for his failure to appear in the Court. (iii) It is an admitted position that only Idoo and his family is living in the premises. So, even if Allauddin had been a different person and a co tenant in the past, his legal heirs have nothing to do with the premises and need not have been sued. (iv) It is an admitted fact that only the appellant has been paying the rent. Even the rent of the disputed period is claimed to have been paid by the appellant through his son. So he alone is the tenant in terms of section 2(j) of the Sindh Rented Premises Ordinance. (v) Exh. R.W.1/M. is reply dated 2‑4‑1984 sent by the appellant through his advocate to the advocate of the respondent and it was in response to the notice of the respondent. It begins as follows: "Your notice dated 28th March 1984 vide reference No. Nil addressed to my client Mr. Edoo Aladin, tenant." It is worth noting that the words "client" "Mr." and "tenant" are used in singular number and "Edoo Aladin" is shown as one person. This could not have been the case if "Edoo" and "Aladin" had been two different persons. It is thus evident that till 2‑4‑1984, it had not occurred to the appellant to claim that Edoo and Aladin were two different persons. This Exh.R.W.l/M is an admission on the part of the appellant from which he cannot wriggle out. 5. 1 would, therefore, reject the argument that Idoo and Aladin are two persons and rent petition was not maintainable for not impleading the other tenant or his legal heirs.

6. As for the payment of rent for the disputed period (August 1983‑‑ March 1984), the claim of the appellant is that his nephew had paid Rs.450 to the son of the respondent in September 1983 by way of advance rent for the period from August 1983 to January 1984 but respondent's son had not given receipt and rent for February and March had been sent by money‑order and it was refused. Now, the nephew of the appellant has not been examined to prove the payment and son of the respondent has appeared as P.W.2 and he has denied such payment. The appellant admits that up to July 1983 receipts of rent were always given to him (per last sentence of his cross‑examination) and as such it is difficult to believe that the respondent or his son would not give receipt for the disputed period and the appellant would sit quiet, even when it was an advance payment for six months. The respondent in his affidavit‑in- evidence denied that he had refused to receive the money‑orders but neither he nor his son was cross‑examined on the point of refusal of these money orders. These money‑order coupons are Exhs.R.W‑1/B and R.W‑1/C. They show that they were addressed to the respondent but these coupons do not indicate the address of the respondent. As such, it cannot be said that they were addressed to the respondent. Postal receipts have not been tendered in evidence. As such no presumption arises that the respondent had refused to receive these money‑orders. This discussion is, however only academic because tender through these money‑orders was neither in time nor for the full amount due and, therefore, if the respondent refused to receive them, he was justified. Learned counsel of the appellant argued that the letter portion of the money‑order coupon Exh.R.W‑1/C was not rebutted inasmuch as it was not replied through a, separate letter and, therefore, it should be believed to be correct on the strength of 1991 CLC 1850 (Muhammad Arif v. Ch. Gulzar Ahmad). (In the letter‑portion of the coupon, the appellant had alleged that receipt for the rent of six months ending January 1984 had not been supplied to him). Although it is not so proved but even if it were held that the money‑order vide money‑order coupon Exh. R.W.1/C was not accepted by the respondent and was returned by him, even then there would have been no question that the respondent should have copied down the letter‑portion before refusing to receive the money‑order and should have repudiated its contents by sending a reply. The argument is rejected as having no force.

8. Learned counsel of the appellant then argued that averments made by the appellant in para. 25 of his affidavit‑in‑evidence had not been rebutted by the respondent and; therefore, they should be deemed to have been admitted on the strength of 1991 CLC 1902 (Fasahat Ali v. Mst. Noor Jehan Begum). In this para., the appellant had said that at the demand of the respondent that the advance payment of Rs.450 should be forgotten and a further sum of Rs.525 should be paid when receipt for the up‑to‑date period would be given, he had agreed and 'paid this amount to Yousuf Tapal, son of the respondent. This Yousuf Tapal had appeared as a witness as P.W. 2 but the appellant did not cross‑examine him on this point. As such this averment in para. 25 of affidavit in‑evidence of the respondent is of no worth and called for no rebuttal.

9. It may also be noted that in the written‑statement the appellant had stated that rent from August 1983 to January 1984 had been paid and rent of February and March 1984 was refused by the son of the respondent whereupon it was sent by money‑orders which was also refused but in his cross examination he says that rent of even February and March 1984 had been paid. To quote his words "It is not correct that I have not paid rent to the respondent or to his son for the period commencing from August 1983 to March 1984. As a matter of fact, rent for this period has been paid by me to respondent's son Yousuf Tapal". This contradiction makes his claim of payment highly unreliable.

10. It is also worth noting that in his reply Exh.l/M, the appellant has not at all pleaded the advance payment of Rs.450 or further payment of Rs.525. He only stated that rent for the period August 1983 to January 1984 amounting to Rs.450 stood paid but receipt was not given. This would rather indicate that rent for this period was being paid every month when it became due and not in advance.

11. In short, I agree with the learned Rent Controller that the appellant A has failed to prove the payment of rent for the disputed period.

12. The appeal, therefore, fails and is dismissed. H.B.T./E‑67/K Appeal dismissed,