1990 PLP 711 (CLC)

JUDGMENT. This First Rent Appeal has been filed against the order dated 20th January, 1987 of Vth Senior Civil Judge and Rent Controller Karachi (South), whereby he dismissed the rent application of the appellants.

2. Rent case was filed in the year 1983 by the appellants under section 15 of the Sind Rented Premises Ordinance, 1979 on the ground of default in payment of monthly rent from June, 1982 to October, 1983. The rate of rent, as stated in the application, was Rs.360 but enhanced to Rs.390 from September, 1981 the written statement was filed by the respondent in which he admitted relationship and stated that initially the rent was Rs.360 but it was enhanced to Rs.384 in the month of September, 1981. It is stated in the written statement that rent was paid upto May, 1982 to the landlord regularly by Tahir Raza Shamsi, who used to sit in his office as Supervisor/Manager. Thereafter, the rent was regularly paid to the landlord by Syed Saifuddin Shamsi and cheques were drawn on United Bank Ltd., Vault Branch Abdullah Haroon Road, Karachi against Saving Bank Account No.12496‑J and counterfoils have been produced by the respondents. It is stated that respondent was out of country in U.S.A. from 14‑4‑1980 to 13‑11‑1983 and he was making payments of rent in advance for 6 months in lump sum by cheques. He was diligent in sending cheques to the appellants well in time.

3. Before the Rent Controller, Mohammadi Bhai and Saifuddin were examined while respondent Ziaur Rahman filed his affidavi‑in‑evidence and he was cross‑examined. Mohammad Bhai corroborated the version as given in the rent application and stated that respondent has failed to pay the rent since June, 1983 till filing of the rent case. He produced the tenancy agreement as Annexure `A'. Saifuddin (Ex. A‑2) is the rent collector. He has stated that he has not received rent from the respondent since June, 1982. Respondent Ziaur Rahman has taken the same plea as given in the written statement and reiterated that cheques were sent and he has maintained the counterfoils, which he produced with the written statement.

4. I have heard Mr. Ismail Rasani, Advocate for the appellant. It is argued that the respondent has not made any payment for the disputed period and at no time the cheques were received by the landlord. It is argued that this false plea has been taken by the respondents and default has been committed. He has referred to the cases reported in 1987 C L C 1484 and 1987 M L D

487. Mr. Hasan Imam Rizvi, Advocate for the respondents submitted that respondents are old tenants and were making regular payments. It is submitted by the learned counsel that some security amount was also lying with the appellants and if at all there is a default it could be adjusted.

5. The relationship is admitted. The rate of rent to the extent of Rs.384 is admitted by the respondents, but here the question is whether the respondents have paid the rent to the landlords. The Rent Controller, in his order, observed as under:‑ "Under these circumstances only course available for the opponent was to send rent through cheques, therefore, he sent rent directly through cheques and produced counterfoils of said cheques in the Court as Annexures A to D. It is established from the said counterfoils Annexures A to D that opponent sent rent till May, 1984. The applicant has filed this case on 8‑11‑1983, the learned Rent Controller has passed rent order directing the opponent to deposit the rent from June, 1982 as claimed by the applicant. Since then opponent is depositing rent in the Court."

6. I have gone through evidence. The case of the respondent tenant is that he maintained the counterfoils, which have proved that cheques were being sent to the landlord. It is an admitted fact that he was in America. The counterfoils produced by the respondents cannot be treated as the evidence about the payment of cheques. The counterfoils are maintained by the person, who states to l have issued the cheques, but no signature was taken on the counterfoils so as to see that actual cheques were received by the landlord. The respondent was in America. He has not proved the mode by which the cheques were sent. He has J not produced any receipt from the postal authorities. Therefore, I am of the view that this is not a proper tender of rent and there is absolutely no evidence that cheques were either sent to the appellant or he did cash the cheques. From the evidence, the respondent was fully aware of the account number of the appellants. It was very easy for the respondents to have sent the amount in the account of the B landlord for which there is no evidence. The only plea taken in the written statement is that the respondent is a man of means and has sufficient funds in his account, cannot exonerate him from default for a period of more than one year. I 1 have no reason to disbelieve the evidence of Mohammadi Bhai before the Rent Controller. The Rent Controller has thrown out the case that after passing the tentative rent order, the rent is being deposited regularly. With regret, I do not agree with the order. The order under section 16 (1) was passed after the filing of the case to ensure that the arrears of rent were to be deposited during the course of the proceedings. This order cannot exonerate the default as given in the rent application. In case the default is proved, the tenant is required to be evicted under section 15 of the Sind Rented Premises Ordinance, 1979 under which the rent case was filed. There is a clear default and no proof of payment of cheques or tendering the cheques to the appellant.

7. For the reasons stated above, the order of the Rent Controller is set aside and the rent application filed by the appellant is allowed. Consequently, the respondent has to hand over the possession of the premises to the appellant. I allow 4 months' time to the respondent to vacate the premises. Z.S./M‑926/K Application allowed.