2000 PLP 1982 (CLC)

(k) Mst. Roshan Habib v. Haji Usman through its 11 Legal Heirs 1987 CLC 1484. (l) Jalees Ahmed v. Abida Ismail 1987 MLD 114. (m) Syed Khadim Hussain Abdi v. Mst. Geti Ara Begum PLD 1986 Kar.

184. Mala fide denial of Landlord‑‑Tenant Relationship. (a) Ghulam Samadani v. Abdul Hameed 1992 SCMR 1170. (b) Madrissa Darul Uloom Al‑Baqiat‑ul‑Salehat Registered v. The Additional District Judge (Appellate Court) PLD 1992 SC 401. (c) Akbar Ali Khan Mirza v. The Additional District Judge and others 1989 SCMR 1399. (d) Province of Punjab through Secretary Eduction and another v. Mufti Abdul Ghani PLD 1985 SC 1. (e) Muhammad Islam Khan v. Cantonment Board, Kohat 1982 SCMR 1056. (f) Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443. (g) Merajuddin and another v. Kh. Mehboob Elahi and 4 others 1992 CLC 2457. (h) Sain Muhammad Tufail v. Anjuman‑e‑Darbar‑e‑Hussain 1993 MLD

316. Non‑compliance of Tentative Rent Order. (a) Mst. Akhter Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1. (b) Zia Ullah Shah v. Syed Riaz Ahmed 1981 SCMR 538. (c) Mst. Jan Bibi and others v. Azam Khan and another NLR 1990 AC

688. Invalid Deposit of Rent in Miscellaneous Rent Case. (a) Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381. (b) Abdul Resheed v. Hanifur Rehman 1994 MLD 955. (c) Munawar Hasan v. Badiul Hasan 1992 CLC 2495. (d) Jamshed Baig v. Muhammad Ashique 1991 MLD 1048. (e) United Bank Ltd. v. Ehasn Ellahi 1989 CLC

287. Non‑payment of Water and Conservancy Charges (a) Messrs Kwality Food Products v. Mst. Sehba Nishat Haq 1991 MLD 1331. (b) Syed Afroze Ali v. Mutiullah Khan NLR 1991 AC 514. (c) Dr. Syed Ateeq Ahmed v. Mst. Nargis Jamal 1989 CLC

160. Learned counsel for the respondent submitted that:‑‑ (i) Monthly rent of Rs.4,950 included water and conservancy charges; neither the previous tenant Messrs Pakistan Steel Mills Corporation nor the deceased tenant were liable to pay these charges. Even these charges were never demanded by the appellant; (ii) the respondent denied the relationship between him and the appellant as landlord and tenant as the demised premises were sold out; (iii) the respondent is not a defaulter inasmuch as her late husband regularly paid rent to the appellant through cheques, but the latter did not issue receipt on the pretext that payment through cheques did not require any receipt; (iv) the appellant did not encash cheques subsequent to 15‑2‑1993 in spite of repeated oral and written requests by the deceased tenant, therefore, he started depositing rent in Court vide M.R.C. Nc.590 of 1993; (v) the tentative rent order could not be complied with as there was some error in the said order which was rectified on the application of the respondent then the rent was deposited in time; (vi) the statement of postman Mehtab Nabi establishes that the appellant avoided malafidely to receive letter of the respondent sent to him through registered post; (vii) neither in the ejectment application, nor in the affidavit‑in‑evidence, the appellant/landlord stated that he used to issue receipts against payment of rent. Therefore this plea taken in the evidence was false. In support of his above submissions, the leaned counsel relied upon: Mst. Noor Jehan and 3 others v. Piaray Lal 1990 ALD 580, Khursheed Ahmed v. Rahimuddin 1992 ALD 546, Shafiqur Rehman v. Saeed Ahmed 1991 MLD 1393, Muhammad Shafi v. Mst. Sohra Khatoon 1983 CLC 346, Zohra Begum v. Pakistan Burmah Shell Ltd. 1984 CLC 2769, Zulfiqar Hussain v. Mrs. Tazeen Chaudhry 1986 CLC 393 and Younus Rizwani Sheikh v. Pakistan State Oil Co. Ltd.

9. In the first instance the respondent's predecessor‑in‑interest (her husband) denied relationship of landlord and tenant between the ‑parties although he admitted in the written statement that initially Pakistan Steel Mills was the tenant of the appellant but after two years when he retired from Pakistan Steel Mills, at his request he was accepted as tenant. In this situation I find considerable force in the submission of the learned counsel for the appellant that subsequent denial of relationship of landlord and tenant on the vague plea that the appellant had sold away the demised premises to some one was contumacious and mala fide. It would be relevant to note that he had filed MRC 590 of 1993 under section 10(3) of Sindh Rented Premises Ordinance, 1979 wherein, in para. l he stated as follows:‑‑ (1) That the applicant is the tenant of the opponent in respect of premises No.C‑190, Block‑10, Federal 'B' Area, Karachi at a monthly rental of Rs.4,

950. The tenancy is oral and the applicant is a statutory tenant. " But in the written statement he took up the following plea: "(a) That the applicant is no more owner/landlord of the premises in question and. as per the information of the opponent has sold the premises in question as such he is not entitled to file this case claiming himself to be the owner of the premises in question." In para. 4 of his affidavit‑in‑evidence, he (the deceased tenant) reiterated the same facts.

10. Since during the proceedings the deceased tenant expired and on his behalf his successor Mst. Majda did not file her own affidavit‑in‑evidence, but on her behalf her nephew and attorney Saeed Akhtar, Advocate filed his affidavit‑in‑evidence on 3‑7‑1996. After having given due consideration to the evidence of this attorney, I fined the untrustworthy and unreliable. In para. No. l he stated "he is well‑conversant with the facts of the case. In para. No.5 of his affidavit‑in‑evidence he stated as follows:‑‑ "That I say that applicant is no ,more the owner of the premises in question and as per my information the applicant has sold the premises in question as such he is not entitled to file this case claiming himself to be the owner of this premises in question."

11. From the above, it is abundantly clear that throughout the stand of the respondent had been inconsistent and contrary to the factual position. On the one hand while submitting the miscellaneous application the respondent's late husband admitted that he was tenant of the appellant but subsequently, during ejectment proceedings throughout the respondent's stand is denial of relationship of landlord and tenant between the parties. In my humble view 8 such as denial was contumacious and mala fide. In view of such a conduct of the tenant, recording of evidence on the other allegations such as default is not required, as has been held by the Honourable Supreme Court in Ghulam Samdani v. A. Hameed 1992 SCMR 1170, and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443.

12. The next contention of the learned counsel for the appellant was that the tentative rent order passed by the learned Rent Controller was not complied with according to which the respondent had to deposit Rs.52,975 as arrears of rent but instead of depositing this amount the respondent deposited only Rs.51,975 as per his own calculation. In my humble view instead of doing so as per his own calculation the respondent should have complied with the tentative rent order as directed and no prejudice at all would have caused to him if he had deposited the tentative rent because he could have claimed adjustment of the difference between the two amounts which was a meagre one. In such a situation when there was deliberate non compliance of the tentative rent order the learned Rent Controller ought to have struck off the defence of the respondent and he should have passed the order of eviction by summary, disposal of the case without any further proceedings, in view of the law laid down by the Honourable Supreme Court in Mst. Akhtar Jehan Begum v. Muhammad Azam PLD 1983 SC 1.

13. The next submission of the learned counsel for the appellant was that the rent for the period from 15‑2‑1993 to 14‑6‑1993 was not paid to the appellant. Initial burden to prove this allegation was on the appellant. He has discharged this burden by taking consistent stand in his ejectment application, affidavit‑in‑evidence and cross‑examination that the rent for this period was not paid to him. The law is well‑settled that if the landlord states on oath that he has not received rent for the disputed period, he has p discharged the burden of proof and the same was shifted to the tenant. (See Allahdin v. Habib PLD 1982 SC 465). In his written statement as well as in the affidavit‑in‑evidence of attorney of the respondent it is alleged that the applicant never issued any rent receipt and this has also been believed by the learned Rent Controller. It was the duty of the respondent's late husband to have obtained the rent receipts. It is unimaginable that the deceased being an educated person and a lawyer by profession would pay rent without obtaining the receipt. There is nothing in the evidence to indicate that he ever protested E for the alleged non‑issuance of rent receipts. Even otherwise the respondent was required to act strictly in accordance with the provisions contained in section 10(3) of Sindh Rented Premises Ordinance, 1979. The evidence on record clearly indicates that no attempt at all was made to deposit rent through. money orders. Therefore deposit of rent in M.R.C. was improper and invalid. Likewise, it is an admitted position that water and conservancy charges were not paid by the respondent on the plea that these charges were included in the monthly rent. There is no tenancy agreement between the F parties whereby the landlord was supposed to make payment of these charges. Thus, in this situation since water and conservancy charges are included in the definition of rent as defined in section 2(i) and in the absence of any evidence to the contrary, it was the liability of the respondent to pay the said charges and the failure to do so proved that; her late husband was also a defaulter on this score as well. Set Dr. Syed Atique Ahmed v..Mst. Nargis Jamal 1989 CLC 160.

14. It was also contended by the learned counsel for the appellant that learned Rent Controller erroneously placed reliance on counterfoils of cheques without signature of the landlord as proof of payment by the, respondent. In this regard suffice it to observe that counterfoils without signature of the landlord are unworthy of credit because such document can easily be manipulated by a person who is in possession of the cheque book. Even otherwise, there is no proof whether the cheques were actually delivered to other appellant. In this regard the learned Rent Controller has mis-appreciated the evidence. Shoib Raza has nowhere deposed about issuance and delivery of cheques. On the contrary categorically stated that Cheques bearing No.106555; 106558 and 106559 were never presented in his bank and were not enchased. This witness belies the allegation that cheques were delivered. Regarding the statement of Mehtab Nabi the learned Rent Controller has also mis-appreciated his evidence. He was cross‑examined about his remarks on the registered letter alleged to have been sent by the deceased tenant which was returned by this postman as undelivered because he could not establish contract with the appellant due to his non‑availability in the house. As per evidence this letter was brought to the appellant's house on 11‑7‑1993 but the ejectment application was filed on 12‑7‑1993 while verification was made by the Oath Commissioner on 10‑7‑1993, which show that as was rightly contended by learned counsel for the appellant this letter was fabricated as value evidence to cover‑up the default.

15. The upshot of the above discussion is that the impugned order being not sustainable in law is set aside, and the appeal is allowed with costs. However, 60 days' time is allowed to the respondent to hand over vacant. possession of the demised premises to the appellant subject to payment of rent regularly. H.B.T./A‑352/K Appeal allowed.