1980 PLP 1015 (CLC)

Second Appeal No. 323/78 and No. 324/78 are between the same parties and common arguments were addressed by the learned counsel in respect of these two appeals. This judgment, therefore, will dispose of both the appeals.

2. The appellant, M/s Excellsior Agencies, are admittedly the tenants in respect of two godowns situated in the building known as Pak Chambers, West Wharf Road, Karachi, at the monthly rent of Rs. 444, for each premises. The appellant was inducted in- these premises as a tenant under the terms of a written agreement of tenancy dated 27th February, 1976, which inter alia stipulated that the agreed rent shall be paid in advance,

3. The respondent who is the Managing Trustee of M/s. Ebrahim Alibhai Charitable Trust which owns the building, instituted ejectment proceedings by means of two separate applications against the appellant on 17th February, 1975 on the sole ground of non-payment of rent with effect from 1st April, 1975. It is clear from the record that the appellant was served with the notice of these proceedings on 26th July, 1975 and entered appearance and filed written statement. The appellant did not dispute the fact that the rent for the period with effect from 1st April 1975 was not received by the respondent. But his plea in defence was that the respondent's office which was located in the same building was shifted in April, 1975, to an unknown address which prevented him from paying the rent in the usual manner through cheque. It was further contended by him that the respondent deliberately failed to collect rent through his representative and eventually on 15th August, 1975 the appellant received a circular notice from the respondent intimating the new office address of the respondent as 246-Garden West, Nishtar Road, Karachi. Upon receiving this information, the appellant went on to plead, he contacted the respondent on 20th August, 1975 and tendered rent by pay order for Rs. 3,552 but the respondent refused to accept the same "with ulterior motive of enhancing the rent." Eventually the appellant deposited the entire arrears of rent in the office of the Controller on 10th September, 1975, after institution of proceedings.

4. The parties produced evidence before the learned Rent Controller consisting of one witness on either side. They also produced a number of documents. On the side of the respondent Mr. Shamim Ahmed, the Manager of the Trust was produced as a witness whereas for the appel lant Mr. Badshah Rizvi, the proprietor of the appellant examined himself. The learned Rent Controller on considering the evidence came to the conclusion that the respondent had failed to discharge the onus of proof that the office of the respondent was not shifted in April, 1975. He, however reached the finding that the appellant was a wilful defaulter in not tendering the rent according to law. In this view of the matter the learned Rent Controller by his order dated 20th November, 1977 directed the ejectment of the appellant. In appeal filed by the appellant against the aforesaid order of eviction the learned V Addl. Distt. Judge, Karachi, did not agree with the view taken by the learned Controller that the onus of proof regarding the date of shifting of the office lay upon the respondent. In his opinion it was for the appellant to have proved that the respondent had shifted his office in April, 1975 and not after 1st July, 1975 as contended by the respondent. After carefully he, evidence on record the learned Addl. Distt. considering appellant to have wilfully defaulted in the payment of rent for the he Judge found in question. Consequently by judgment dated 26th July, 1978 the appeal of the appellant was dismissed.

5. Before me the learned counsel for the appellant has contended that on the evidence on record it was established that the appellant was not a wilful defaulter and was, therefore, not liable to be evicted. In this behalf he submitted that the explanation of the appellant is fully supported by the evidence on record. He referred to the admission made by the witness of the respondent Shamim Ahmed to the effect that he cannot say whether the applicant committed default wifully.

6. Now it appears to me that there is a concurrent finding of the two Courts below to the effect that the appellant did not tender rent for the period in question in accordance with law. I have been taken through the evidence on record and I find that the finding is arrived on record and there is no reason to upset the same.

7. It is not disputed as already pointed out that the respondent has not received the rent for the period in question. It is also admitted that the once of the respondent was shifted from the original place where it was situated in the same building. The respondent has produced a circular letter addressed to all the tenants (Exh. 4 B) dated 1st July, 1975 stating that the respondents were closing down their office at Pak Cham bers for the purpose of acceptance of rents which would thenceforth be received at their new office. the address of which was mentioned in the letter. It is not denied by the appellant that he received this circular letter, but according to him this letter was received on 15th August, 1975, There is no evidence on this point except the word of the appellant. However as rightly pointed out by the learned Add]. Distt. Judge, the respondent was served with notice of the ejectment application on i6th July, 1975 from which it is reasonable to presume that the appellant must have come to know about the correct address of the res pondent. Nevertheless on 1st August, 1975 (Exh. 5/3) which is an admit ted document the appellant persisted in asserting that he was not aware of the present address of the respondent and requested the counsel for the respondent to intimate their correct address so that rent may be remitted. It is, therefore, clear that notwithstanding the knowledge of the correct address of the respondent the appellant persisted in his default by not tendering the rent at the proper address. Be that as it may the entire contention of the appellant is misconceived. In absence of the know ledge regarding the correct address of the respondent the appellant was not without any remedy so far as proper tender of rent is concerned. According to section 13 of the Rent Restriction Ordinance, it was open to the appellant to deposit the rent in the office of the Controller as h B subsequently did, within the stipulated period. However, he did no resort to this mode of tendering the rent within time and thereby became defaulter.

8. I find no force in the submission that because the witness of the respondent expressed lack of knowledge as to whether the default was wilful or not, the inference should be drawn that the appellant was not a wilful defaulter. The opinion of the witness whether the tenant was or was not a wilful defaulter is immaterial. The finding on this question is to be arrived at by the Controller on a proper assessment of evidence produced by the parties. The necessary facts were deposed to by the same witness showing default on the part of the appellant. Therefore, the admission relied upon is immaterial. It is clear from the record that the appellant committed default and tendered rent beyond the prescribed period after institution of the proceedings. The explanation of the appellant that he was prevented from tendering the rent is not substantiated by the record. The onus of proof lay upon the appellant to establish that the non-payment of rent was for reasons beyond his control but in that the appellant has failed.

9. Mr.

1. M. Patel, learned counsel appearing for the respondent also urged that no interference is normally made at the stage of second appeal as regards findings on questions of fact, unless there is misreading of evidence. Agreeing with the submission of the learned counsel and in view of the discussion of the evidence on record I find no justification to interfere with the conclusion arrived at by the Courts below at this stage.

10. For the foregoing reasons I find no merit m these appeals which are dismissed with no order as to costs. The appellant shall hand over the possession of the premises to the respondent within three months. M. Y. M. Appeals dismissed.