1989 PLP 853 (CLC)

Zahiruddin Ahmad Khan for Respondents. Date of hearing: 13th December, 1988. . By this common judgment, I propose to dispose of the present two appeals, as the respondents/landlords in both the cases are same and the common points of law and facts are involved. The facts leading to the present cases are that respondents had filed the rent cases against the present appellants on the ground of default and their having carried out the additions and alterations in the structure of the demised premises which materially affected the utility and the value of the said property. The case of the respondents is that the premises in dispute was initially owned by their mother Hamida Begum alongwith the five other properties, and that the present appellants were the tenants ‑in occupation of separate tenements situate on one of the said properties at the monthly rent of Rs.25 and Rs.30 respectively. It is further the case of the respondents that the said Mst. Hamida Begum expired on 16‑1‑1979 and subsequently their father also expired on 18‑2‑1981, leaving behind five sons and daughters and dispute arose amongst the heirs with regard to the properties left by Mst. Hamida Begum. Ultimately, a suit for Administration was filed before the Honourable High Court, being Suit No.53 of 1981, and the Honourable High Court was pleased to issue Letters of Administration in favour of the respondent

1. The case of the respondents further is that the appellants have not paid the rent from April 1979 in spite of the fact that they were asked to deposit the rent in Court. It is further asserted by the respondents that after the grant of Letters of Administration in the year 1982, the appellants were asked to pay the rent but they failed to do so, and ultimately on 19‑12‑1985, the present respondents filed the rent case alleging the default from March, 1979, to November, 1985, and also on the ground that in October, 1985, the appellants carried out material alterations and additions to the demised premises.

2. The appellants had contested the cases and filed their written statements, wherein, the relationship and rate of rent was admitted, but a plea was taken that the rent cases were not maintainable in law. It was denied that the appellants are defaulters. Their, case is that, they had paid the rent upto the month of August, 1985, .and thereafter, when they offered the rent, the same was refused by the respondents and that the appellants then sent the same by money order which was also refused and ultimately they filed the miscellaneous rent case in 1986 before the Rent Controller and started depositing the rent in Court. It was also claimed that the deceased Mst. Hamida Begum had agreed to sell the portion in occupation of the appellant to him and had received an amount of Rs.1,000 each from the appellants towards the part payment of the consideration.

3. The respondent No.2 examined herself on her behalf and as attorney of respondent No.l as the respondent 1 was confined to bed having suffered from paralysis and fracture in leg, while in one case, appellant Mehar Khan filed his own affidavit‑in‑evidence and the affidavit of one neighbourer, namely Muhammad Siddique and in the other case, the appellant's attorney Mureed Sultan and one Muhammad Akbar filed their affidavits‑in‑evidence.

4. I have heard the learned counsel for the parties. Mr. M. Qaisar Qureshi, Advocate for the appellants in both the cases, has urged that the Rent Controller has ignored to consider the issue of maintainability, although specific plea was taken in paragraph‑8 of the written statement. This being a legal plea, I allowed Mr. Qureshi to argue on this point. He has contended that the respondents had produced the order of the Hon'ble High Court dated 25‑2‑1982, whereby, it was ordered that the Letters of Administration shall be issued in favour of the respondent 1 with regard to only three properties which also includes the disputed premises, but the Letters of Administration itself was not produced to show that respondent 1 was invested with the authority to file the rent case. Be that as it A may, I am of the view that the Rent Controller cannot go into such intricate questions but the order of the Hon'ble High Court would be sufficient for the purposes of determining the maintainability of the rent case to show that the respondent 1 was authorised to administer the said properties. Even otherwise, the present respondents being the heirs of the original owner do step into her shoes and are entitled to maintain the rent case. I, therefore, hold that the rent case is maintainable in law.

5. On the issue of default, the learned counsel for the appellants has argued that the appellants used to pay the rent to said Mst. Hamida Begum, and after her death they paid the rent to the respondent 2 as they knew her because she used to come with deceased Hamida Begum whenever she came to collect the rent and that they had paid the rent upto the month of August, 1985, whereafter the same was sent by money order and the same being refused they deposited the rent in the Court. In order to support his contention, the learned counsel has relied on two documents produced by the appellants before the Rent Controller; i.e. two pages from a note‑book and the money order coupon. First, I will take up the said two pages of the notebook, which contained certain dates. In first case, the said pages which are marked 0/1 and 0/2 in the R & Ps of the rent case shows various dates to have been written thereon month‑wise. The first entry is dated ‑22‑10‑1979 and the last entry is dated 2‑8‑1985. According to the learned counsel, these are the dates mentioned in token of the payment of monthly rent on those respective dates. A similar document in the other case shows that the first entry is dated 10‑7‑1981 and the last entry is dated 13‑12‑1983. These documents do not bear any signature or any mark of authenticity. The appellant Mehar Khan says that he used to make the entries on the said documents himself, whereas, his witness Muhammad Siddique said that the entries were made by respondent 2, whenever she was paid the rent. This inconsistency in evidence itself rendered this document doubtful. Mr. M. Qaisar Qureshi, learned counsel for the appellants, has referred to the cross‑examination of respondent 2, in which she has said that the daughter of appellant used to enter the date whenever the appellant was not available. This is still a third version. I am, therefore, not inclined to accept this document as a proof of payment of rent. Even otherwise, if this stand of the appellant is accepted then also the period from April 1979 to September 1979 in one case and April 1979 to June 1981 in other case goes unexplained which admittedly is the period under default and why no such entries for the said periods have been produced by the appellants. Moreover, the respondents have produced the three counter foils of rent receipts on printed form in each case on different dates showing the payment of rent for the months of S January, February and March, 1979. This shows that the respondents had been issuing the rent receipts and that the question of noting down the dates on plain paper by respondent No.2 does not arise.

6. Now coming to second document, i.e. , the money order coupon, 1 am of the view that this also does not help the appellants for the reason that this coupon in both the cases shows that it has been sent on 3rd November, but the year has not been mentioned. The appellants have also not .examined any witness from the postal department to prove as to in what year this money order was sent. The money order coupon bears an endorsement in one case that the rent for the 9th and 10th month is being sent without mentioning any year, whereas, in the other case also the original endorsement is that rent for 9th and 10th month is being sent but subsequently the word 9th has been scored off and word 11th has been written. The said coupon also does not bear the circular seal of the post office.

7. Lastly, with regard to the deposit of rent in Court, I have to say that no documentary evidence to support the contention of the, appellant has been brought on record. The learned counsel for the appellants has contended that the appellants had been depositing the rent in Court since 1986, but they have not produced any order or rent receipt to substantiate their contentions. As regards the case of the appellants that deceased Mst. Hamida Begum had negotiated the sale of the premises in dispute to them and had received a sum of Rs.1,000 by way. of part payment of the consideration, I am afraid I cannot agree to this statement of the learned counsel, as there is nothing on the record in the form of sale agreement, receipt or any other document. 8.. The upshot of the above discussion is that the appellants have failed to prove that they have tendered the rent as required l~ under law and they are defaulters and liable to ejectment.

9. Mr. M. Qaisar Qureshi, learned counsel for the appellants, on the issue of addition and alteration to the disputed premises, has argued that the provisions of section 15(iv) require that the respondents have to prove that the appellants have committed such acts are likely to impair material value or utility of the premises. He has further contended that the respondent No.2 has not given any particulars in her affidavit‑in‑evidence with regard to above and has not shown as to how the appellants have materially affected the value 1 and utility of the premises. He has only got the premises white‑washed and made minor repairs.

10. As against this, Mr. Zaheeruddin Ahmad Khan, learned counsel for the respondents, has, relied on a copy of the letter written to the SHO Baghdadi and has contended that from the said letter and the affidavit‑in‑evidence, he has proved this issue. The said letter addressed to the SHO is in vague and 'general terms in which the respondents have alleged that the appellants are demolishing the premises, but no particulars have been assigned. On the other hand, it is also an admitted position that the said premises are very much in existence and have not been demolished. No other specific acts have been proved by the respondents to show that the appellants have made any alteration and addition to the demised premises, whereby the value and the utility of the same has been materially affected. 1, therefore, set aside the finding of the Rent Controller or this issue and answer the same in favour of the appellants.

11. However, as I have held above that the appellants are defaulters in payment of rent, these appeals are dismissed with no order as to costs..

12. The appellants are directed to hand over the vacant possession of the premises in dispute to the respondents within a period of (60) days from the date of this judgment. H.B.T./M‑679/K Appeal dismissed.