1986 PLP 107 (CLC)

Umar Yousaf Deda for Appellant. Khuda Bux Omrani for Respondents. Date of hearing: 29th September, 1985. This appeal is directed against the order, dated 22‑1‑1984 passed by Mr. Sirajuddin Qureshi, the then XVIIth Senior Civil Judge and Rent Controller, Karachi, whereby he granted an application made by the respondent for the ejectment of the appellant from the Shop No. 10 of the building constructed on Plot Nos. RC 14/4, 15/2 and 15/2/2, Princess Street, Nanakwara, Karachi and directed him to hand over peaceful vacant possession of the same to the respondent within 60 days there from.

2. The respondents' case is that they are owners and landlords of the above shop. The appellant was the tenant of the respondents' shop at the rent of Rs.45 per month. The appellant was a wilful defaulter and very irregular in the payment of rent. He did not pay rent from 1‑7‑1970 to 30‑6‑1971 which amounted to Rs.

540. He failed to pay the rent in spite of repeated demands. The shop in question had also remained closed for more than 4 months. Hence on 29‑7‑1971 the respondents filed thus application for ejectment.

3. The appellant admitted the relationship of landlord and tenant as well as the rate of rent. He however, denied that he was a defaulter and had avoided to pay the rent.

4. On the pleadings of the parties, issues regarding the default in payment of rent and having ceased to occupy the disputed shop for more than four months were framed. The later issue was answered in favour of the appellant against which no counter‑appeal had been filed. Hence I will confine myself to the determination of the former issue alone. Even respondents' counsel has not challenged the finding of the learned Controller on the later issue.

5. On the issue of default the respondents' predecessor deceased Ahmad Ali had examined himself and produced a coupon of money order Exh. 82 with which he was confronted by the appellant in his cross -examination and closed his side. The evidence of the respondent is to the effect that the appellant had been a regular defaulter and had not paid rent from 1‑7‑1970 to 30‑6‑1971. During his cross‑examination a number of suggestions were made by the appellant which are inter alia, that he had been tendering rent to the respondent and his Rent Collector from time to time but the respondent had avoided to accept the same but all those suggestions were emphatically denied. The appellant then examined his attorney and produced a telephone bill for the month of May, 1971. His evidence is to the effect that the appellant had paid upto date rent by depositing the same in the Court in a miscellaneous application since 1971. He was unable to give the date of the application or its number. He has also not produced any receipt or any other evidence of that application or of having deposited the rent in the Court. The, telephone bill, of course, was produced to show that the shop did not remain close during that period, which is immaterial for the purposes of this appeal. It has come in evidence of the respondent that the appellant was a defaulter and that he had not paid any rent whatsoever after 1‑7‑1970. The appellant ‑had also admitted that there was no payment of rent after 1‑7‑1970. His defence is that the default was due to the fact that the respondent himself was avoiding to accept rent. The appellant's attorney in his statement before the Controller has stated that the appellant had paid rent upto date by depositing the same in the Court of the Controller in a miscellaneous application since 1971. He was however, unable to give the exact dates. He has not produced any receipt from the Office of the Controller, which clearly proves that his allegation is. absolutely false. He has produced a money order coupon by confronting the respondent with it wherein a sum of Rs.765 was sent. This money order was sent on 8‑11‑1971, which is 31 months after the filing of the ejectment application and, therefore, cannot be of any use to the appellant. It, on the contrary, shows that the allegation of the appellant that he was depositing the rent in the Office of the Controller is a deliberate lie. In his cross examination the attorney of the appellant further admitted that the appellant did not deposit rent in Court before the institution of the case and that he was unable to remember as to on what date or for what period the rent was sent through money order. Hence is it quit clear that the appellant has defaulted in payment of rent from 1‑7‑1970. The learned counsel for the appellant also conceded that no other finding could have been given by the Controller on the evidence which was on the record of the case.

6. He however, submitted that he had made an application on 10‑10‑1977 requesting the Controller to recall the attorney of the appellant and allow him to be re‑examined and also allow him to examine other witness as he wanted to prove that he had personally offered rent to the respondent from time to time, which was refused by the respondent. This application was rejected by the learned Controller. He has given good reasons for rejecting the same. The learned counsel for the appellant however, submitted that section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 does not exclude any other mode of payment of rent by mentioning only two modes of proper tender i.e. deposit of the rent in the office of the Controller and sending the same by money order. Where the tenant was offering rent and the landlord was choosing not to accept the same, tenant cannot be made to suffer for such conduct of landlord. In this connection he has relied upon P L D 1976 Kar.

696. It has been held therein that section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 enjoins upon the tenant to pay or tender rent to the landlord. If a landlord chooses not to accept the rent so tendered, the tenant. cannot be made to suffer for such conduct on the part of the landlord. It would not be correct to hold under such circumstances that default had been committed. There is no doubt that the second explanation to subsection (2) of section 13 states that rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area shall be deemed to have been duly tendered. This explanation merely names two of the modes of proper tender of rent. It does not mean that any other made of tender of rent is excluded by virtue of this proviso. If rent were tendered through money order or by deposit with the Rent Controller that would be an absolute proof of such tender. But if the tenant can prove independently that the rent was duly tendered, by whatever mode it was so tendered, the tenant has done his duty under the law. I have gone through this decision which was given by Justice M.A.. Rashid. It does not apply to the present case. This ruling related to offering of rent by tenant at the rate originally assessed by the Municipal Committee and such tender was not accepted and the refusal was on the ground that the rent was not at the rate at which the Municipal Committee had subsequently assessed. In the present case there is no such admission. At the same time the appellant has also not alleged in his written statement that he had made any personal tender to the respondent. On the contrary the allegation of the appellant was that he had been depositing the rent in the Controller's Office. Simultaneously another inconsistent allegation was made that he had tendered the rent by money order. Under these circumstances it was nothing short of the attempt of a drowning man who was trying to catch at a straw.

7. Apart from that the appellant had neither filed list of his witnesses in the trial Court nor he had made any application for summoning the witnesses although the case was at the stage of evidence. His witnesses were not present on any date of hearing and particularly on 9‑10‑1977 when his attorney was examined in Court. There was no application for adjournment. The attorney had volunteered to step into the witness‑box. He did not express his intention to examine any witness that he wanted to prove offers of rent made by him to the respondent and refusal to accept the same. In his written statement he had denied to be a defaulter and had pleaded that he had always remitted the same by money order. In his deposition also he had not stated that he had offered rent to the respondent in the presence of the witnesses which, although was in his knowledge. Under these circumstances even if he was allowed to examine the witnesses it would not improve his case. This request is therefore, absolutely unjustified.

8. An appeal was preferred by the appellant against this order before the First Appellate Authority i.e. the District Court, Karachi. The same was dismissed by the learned Vth Additional District Judge, Karachi. He has given good reasons for dismissing the appeal in limine. No appeal or revision was preferred against the same by the appellant.

9. Under these circumstances I am fully satisfied that he appellant is a habitual defaulter, I am also satisfied that the has unnecessarily protracted these proceedings for the last 14 years although there is no merit whatsoever in his case.. I, therefore, dismiss the appeal and direct that the appellant shall hand over vacant possession of the shop to the respondents within 60 days from this order. M . Y . H . Appeal dismissed.