1985 PLP 1151 (MLD)

The respondent filed ejectment application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 in respect of flat HC-11 Ali Akbar Market, Bahadurabad, Karachi, on the ground that the appellant has defaulted in payment of rent from October, 1976 to January, 1977 and further that he has sublet the premises to some one else without her consent and knowledge. The appellant filed his written statement denying these facts. He pleaded that he is a tenant since 1-8-1974 at a rent of Rs. 175 p.m. which was increased to Rs.

210. At the commencement of tenancy he had paid two amounts namely Rs. 1,050 being the advance rent for two months and Rs. 700 being the rent for 4 months at the rate of Rs. 175 which was prevalent at that time, as deposit. He further pleaded that he has paid the rent upto October, 1976. Although he offered the rent for November to the respondent, it was refused for ulterior motives. He, therefore, remitted money order for Rs. 630 being the rent for November, December and January, 1977 on 30th December, 1976, which was returned, and, thereafter on 14-3-1977 again another money order was remitted for Rs. 840 being the rent from November, 1976 to February, 1977 which was refused. It was also denied that the appellant has sublet the premises to another person: The learned Controller by the impugned order accepted the respondent's plea and granted the ejectment application. Mr. Sher Afgan the learned counsel fur the appellant has contended that the appellant has paid rent upto October, 1976 and in that regard reliance is placed on a katcha receipt issued by some' one who according to him was sung at the shop of the respondent's husband. According to him .his was the practice that the rent was being paid to any person who was sitting on the shop and pucca receipt was issued afterwards. This Katcha receipt produced by the appellant has not been accepted by the respondent's attorney and this document remained unproved. According to the learned counsel for the appellant as two money orders representing the rent from November, to February and from February to March, 1977 were remitted the appellant has always been ready and willing to pay the rent and in fact had tendered the rent and, therefore, there was no default and in any event in the facts and circumstances of the case the learned Controller should have exercised discretion in favour of the appellant. The admitted position is that the respondent has with her a sum of Rs. 700 which is a fixed deposit and represented advance rent for four months. The respondent has not explained in her evidence nor any attempt has been made to show the nature of this fixed deposit, whether it was security to be returned after the premises is vacated or it was to be adjusted towards the rent that may become due and payable. As there is no evidence on the part of the respondent to show that it ought to have remained as a security for adjustment after the premises is vacated or was to be refunded at that time it can be inferred that' this amount could be treated as advance rent which in fact was described as such and was liable to be adjusted by the respondent whenever any default is committed by the appellant. From the evidence it seems that rent for the month of October has not been proved to have been paid, but the rent for November, December and January seems to have been tendered on 30-12-1976 through a money order which has been returned and remained unpaid. There seems to be some suggestion made to the appellant that the money order was not sent on correct address, but in fact there is no proof on record to establish such fact. A person tendering rent through money order, when he is apprehensive that non-payment is likely to result in ejectment, in all probabilities, he would in the normal course remit the money order to the landlord, on the correct address. The remittance of money order has been established by the remittance receipt produced by the appellant. In these circumstances I am convinced that the money order was remitted on the correct address and that it was not manipulated by the appellant. The respondent had with her fixed deposit of Rs. 700 as advance rent which could have been adjusted towards the arrears. The appellant remitted the money order twice towards the rent. If the money order would have been accepted, the only dispute would have been in respect of the month of October, 1976 which could have been adjusted in the fixed deposit lying in the hands of respondent. Therefore, in the facts and circumstances, the learned Controller should have exercised discretion in favour of the appellant and as no clear cut default is made out ejectment order should not have been passed. Now coming to the second ground, the respondent has alleged that the appellant has sublet the premises to some one else. Except this vague allegation even in his evidence no fact has been stated to show when the premises has been sublet and in what manner the possession has been parted by the appellant. Even the finding of the learned Controller is that the appellant has parted with the possession of the premises, and, therefore, it has been assumed that the appellant has sublet the premises. Parting with possession is different from subletting. Subletting is a positive act of re-letting the premises to a third person on payment of rent, but these facts have not been established by the respondent. Mr Shafaat the learned counsel for the respondent has attempted to show that the. lacuna and contradiction in cross-examination of the appellant establish the respondent's plea of subletting. The burden was entirely on the respondent to establish subletting and merely by pointing out the lacunas unless they amount to admission, the burden cannot be discharged. In the result the findings of the learned Controller on both the issues are set aside. The appeal is allowed. The parties to bear their own costs. H . B . T . Appeal allowed.