1989 PLP 4282 (MLD)

Mirza Waqar Hussain for Appellant. Abid Hamid Puri for Respondents. Date of hearing: 30th March, 1989. By this appeal the appellant has challenged the orders passed by the IIlrd Senior Civil Judge and Rent Controller, East, Karachi whereby the appellant has been ordered to vacate the premises in case. The facts brieflly stated are that the present respondents being the landlords of a building on plot bearing No. 40-D situated in Nursery Market, P.E.C.H.S, Karachi, hereinafter referred to as the case premises, filed the rent case on the grounds of sub-letting, default and personal-requirement. Their case is that the present appellant had sub-let the case premises or part thereof to a concern by the name of "Dean and Webber" without their consent and also that the present appellant is a persistent and habitual defaulter in payment of monthly rent and had failed to pay rent from January 1981 till filig of the rent case i.e. March 1982. It is also claimed that the Landlords required the said premises for their personal use in good faith. The present appellant filed the written statement. The relationship of landlord and tenant and the rate of rent has not been denied. However, it is contended that the landlords did not require the case premises for their personal need nor the appellant had sublet the premises to the said concern but the said concern "Dean and Webber" is also owned by the appellant himself. With regard to the ground of default it is alleged in the written statement that the appellant had always been regular in payment of rent and that the landlords had refused to accept the rent since the month of March 1982 with mala fide intention and that the appellant is still regularly tendering the rent. 1t is also stated in the written statement that the landlords have been receiving the rent from the appellant regularly. It is further contended that the landlords had been asking for enhancement of rent and also there had been negotiations for the sale of the case premises between the parties but the same could not materialise. The parties filed their affidavits and those of their witnesses in evidence and also produced the documents on record. The learned Rent Controller was pleased to decide the issues of sub-letting and personal requirement against the landlords while on the issue of default the Rent Controller held the present appellant to be a wilful defaulter in payment of rent and ordered his ejectment. I have heard the learned Advocates for the parties. Mr. Mirza Waqar Hussain, learned counsel for the appellant has challenged the findings of the Rent Controller on the issue of default mainly on the ground that the rent was being tendered through cheques to the landlady, respondent No.1 as desired by the respondents in their letter dated 25-1-1980 and, therefore, this should be treated as mode of payment. He has placed reliance on the case of Shahriyar Ali Patudi and 3 others v. Messrs Decora Furnishers (PLD 1985 Kwr. 47). In support of his contention he has placed reliance on various postal A.D. slips showing that the cheques were being sent through post to the respondent No. 1 and also a statement placed on record with the heading "statement of rent cheques received and in applicant's possession", showing the issuance of cheques for the months of January, 1981 to February, 1982 and also the "statement rent cheques refused, showing the issuance of cheques from March 1982 to June 1982". From this he has contended that the compliance for tendering the rent in accordance with the above said letter of the landlord has, duly been made by having sent rent through the cheques and, therefore, the appellant could not be held to be defaulter but the "default" in the present case has been foisted upon the appellant by the respondents by not encashing the said cheques. He has further pointed out to certain minor inconsistencies in evidence of the respondents to support his contention that their evidence being perjured it would not be safe to rely on the same. In support of his above contention he has cited the 3 decisions of Indian superior Courts reported in 1933 IC 384, AIR 1933 Allahabad 834 and AIR Oudh

88. The facts in these three cases are different than that of the present and m my view the same have no bearing on the present case. The emphasis of the learned counsel for the appellant mainly is that the evidence of the respondents should not be believed because of the above said inconsistencies and that the appellant should be considered to have tendered the rent as required under the above said letter of landlords dated 25-1-1980. It is a well-settled principle of law that the debtor has to seek the creditor and that in the rent case the burden lies on the tenant to prove that he has tendered the rent in accordance with the mode of payment of rent as provided in Section 10 of the Sind Rented Premises Ordinance. 1979 which provides that the rent is to be paid to the landlord not, later than the 10th of the month next following the month for which it is due. It is A also provided that the rent shall be paid to the landlords but in case the landlords refuse or avoid to accept the rent it may be sent by postal money-order or be deposited with the Controller within whose jurisdiction the premises is situated. In the instant case the said statement of rent cheques is signed by one Mr. FA. Siddiqui who is a stranger to the present rent case and also that the said cheques are admittedly sent from the account of "Dean & Webber" and not from the appellant's account. Mr. Abid Hameed Puri, learned counsel for the respondent has pointed out that in addition to the above reasons the said statement of rent cheques does not show the dates on which the cheques were issued. He has also pointed out that certain cheques were sent on the dates which were later than 10th of the month next following the month for which the same was due such as in case of April, 1981. He has also pointed out that the same statement shows that the cheques of January and February 1981 were sent by hand, the proof of the receipt of the same has not been produced in evidence as on the other hand the respondents have denied to have received any of the above-said cheques as mentioned in the statement. From this he has contended that apart from anything else at least the default for the months of January and February 1981 stands proved. Mr. Abid Hameed Puri has also drawn my attention to a letter dated 9-11-1981 issued by the Chartered Bank to the said "Dean & Webber" showing that the said cheques issued by them in the name of the respondents had not been presented for encashment. Mr. Abid Hameed Puri has contended that at least on this date it was within the knowledge of the appellant that the rent was not being received by the respondents and in exercise of ordinary prudence and due diligence the appellant should have adopted any of the 3 modes of tendering the rent as provided under Section 10 of the Sind Rented Premises Ordinance but he has deliberately failed to do so and according to the appellant he: in spite of the above knowledge, persisted in sending cheques the-receipt of which of course is denied by the respondents. He has contended that the appellant cannot be said to be an ignorant person as he is running two commercial firms. The duty was cast upon the appellant to have followed the legal provisions as provided in the above said Ordinance. Mr. Abid Hameed Puri has further contended that admittedly the appellant has sent the cheques for payment of rent only till the month of June 1982 and even on this score he can be said to have committed default in payment of rent after June 1982. Lastly Mr. Abid Hameed Puri has drawn my attention to the written statement riled in the rent case by the appellant and has contended that it has been categorically stated in the written statement that "the landlords have refused to accept the rent since March 1982". This would in other words mean that the contention of the appellant in written-statement is that the rent upto February 1982 has been paid. This statement was filed on 1-8-1982oon which date it was within the definite knowledge of the appellant that the alleged cheques sent by the appellant were not encashed in view of the above said letter dated 9-11-1981 and the confirmation by the Bank on the letter dated 19-4-1982 sent by "Dean & Webber" to the Chartered Bank. It is also contended that nothing has been mentioned in the above written statement with regard to the payment through cheques and, therefore, any evidence brought on record by the appellant in contravention of the above contention made in the written statement would not be taken into consideration. Learned counsel for the respondents has also referred to the affidavit in evidence filed by the appellant and has contended that nowhere in the said evidence the appellant has stated that the rent was paid through cheques but his stand with regard to the payment is the same as stated in the written statement that the rent was paid till the month of March 1982 for which month the same was refused. The very first line of the cross-examination of the appellant himself reads "I am tenant since 1970. I can produce the rent receipts up to March 1982. Rent from January 1981 to March 1982 was paid by me or through my daughter to Mrs. Khursheed Qutub. Rent is paid in cash". This contention of the respondent himself goes to belie the case set up by the said F.A. Siddiqui who has signed the above-said statement of cheques that the rent was sent by cheques. It is also contended that no rent receipts for the payment of rent C as alleged by the appellant himself in affidavit and cross-examination were produced and as such the appellant has failed to discharge the burden of proof to the effect that the rent was paid by him as alleged. From the above discussion I am of the view that the default in payment of rent has been committed by the appellant and the Rent Controller has rightly held so. I, therefore, find no reasons to upset the findings of the Rent Controller on this point. The appeal is, therefore, dismissed with no order as to costs. However, the premises being commercial, the appellant is allowed a period of 120 days from the date of this judgment to vacate the same. M.Y.H./E-30/K Appeal dismissed.