1989 PLP 2001 (CLC)

This is an appeal arising out of the judgment of the Rent Controller given in application for ejectment filed by the respondent‑trust on the ground of default in payment of rent from September 1975 to March, 1976. The rate of rent is not under dispute. The case of the present appellant /tenant is that he used to pay the rent regularly, for which rent receipts were issued by the respondent and that for the months of September and October, 1975, he had paid the rent to the respondent but the receipts were not issued on the ground that the printed receipt forms had exhausted and new receipts were not got printed by that time. According to the appellant similar reply was given to him with regard to issue of receipt in respect of the rent of November, 1975 and that thereafter he had made attempts to pay the rent to the respondent in their office but whenever he went to the office he found it closed. Thereafter, the appellant sent rent through money order on 25‑3‑1976 for the period November 1975 to April, 1976. On behalf of the applicant/respondent, Mr. Bo Ali Naqvi and Kazim Hussain filed their affidavit in‑evidence and were cross‑examined, while the appellant filed his own affidavit in‑evidence and was cross‑examined. The Rent Controller after hearing the advocates for the parties, was pleased to allow the application directing the ejectment of the present appellant. I have heard the learned counsel for the parties. Mr. Deewan Bashir Ahmad, learned counsel for the appellant, has submitted that the appellant had paid the rent for September and October, 1975, for which no receipt was issued which fact is supported by his endorsement on the money‑order coupon to this effect. He has contended that if the appellant had not paid the rent for September and October 1975, he would have sent the same through money order, whereby he had remitted the rent for the months of November 1975 to April, 1976. From this, he has contended that it should be presumed that the rent for September and October, 1975, had been paid. Be that as it may, it is an admitted position that the rent for the first time was remitted through the money order on 25‑3‑1976 for the period November 1975 to April 1976. Even if the above contention of the learned counsel with regard to payment of rent for September and October is accepted then also the rent for November and December, 1975, having been sent on 25‑3‑1976 is clearly beyond the grace period of 60 days and would amount to default in payment of rent. The explanation given by the appellant in this behalf is that he had been visiting the office of the respondent which he always found closed. I am of the view that this cannot be an excuse for non‑payment of rent within due time, as in the present case when the appellant was not being given receipts for the said period, he could have immediately opted for any of the other two modes of payment of rent, as provided in Section 10 of the Sind Rented Premises Ordinance, 1979, i.e. by tendering the rent through money order or by depositing the same in Court. The above explanation advanced by the learned counsel does not appear to be plausible and I am not inclined to accept the same. The learned counsel for the appellant then during the course of arguments raised another point that the present rent case was filed on behalf of the above respondent‑trust by its Trustee and Secretary Mirza Amanullah Baig who has not produced any authority in this respect nor he is examined as a witness and, therefore, the rent application is not maintainable. He was put a question by Court as to whom the rent was being paid to which Mr. Deewan Bashir Ahmad Khan, learned counsel for the appellant, replied that the appellant used to pay the rent to the rent collector of the respondent's trustee, namely, Bo Ali Naqvi or any other person who would come to collect the rent. This fact is also borne out from the cross‑examination of Bo Ali Naqvi. He has then pointed out from the cross‑examination of Kazim Hussain who has said that he has not brought any documentary proof to prove that he is the trustee of the respondent's trust. Mr. Amir Azam, learned counsel for the respondent, repelling the above contention, has submitted that as far as non‑production of the authority by Mr. Mirza Amanullah Baig or Kazim Hussain is concerned, the appellant had not asked for the production of the same, otherwise, the same could have been produced. The record also shows that no such application was made. Mr. Amir Azam has further contended that the title of the rent application shows that the rent application has been filed by the respondent's trust through its Secretary and Trustee which fact has not been denied m the written statement nor any plea to the effect that the rent application was not maintainable on the above ground has been taken in the written statement and, therefore, the present respondent cannot be taken by surprise during the course of arguments in the present appeal, as he would have caused the production of such authority or document if the plea had been taken. The above contention of the learned counsel for the respondent is 1 quite plausible as it is settled law that plea not taken by the party in his pleadings and no issue raised or evidence led on such plea, the same cannot be permitted to be taken at appellate stage. In the instant case, the burden to prove the payment of rent or the existence of certain circumstances or facts being sufficient for non‑payment within due time is on the tenant and no explanation has been advanced for not having tendered the rent as required under the provisions of Section 10 of the Sind Rented Premises Ordinance from the period November onwards nor any material has been brought on record. For the above reasons, I see no ground to interfere with the judgment of the Rent Controller. The appeal is, accordingly, dismissed with no order as to costs. The appellant is, however, allowed a period of (90) ninety days, to hand over the vacant possession of the premises to the respondent, from the date of this judgment. H.B.T./M‑831/K Appeal dismissed.