1986 PLP 1770 (CLC)

The learned Rent Controller, on the basis of the evidence adduced by the parties and after taking into consideration the arguments of the learned counsel decided issue No. 1 in the negative and dismissed the application, vide order, dated 2‑1‑1982. The appellants being aggrieved against the order, dated 2‑1‑1982 of the X11th Senior Civil Judge and Rent Controller have preferred this First Rent Appeal on the grounds disclosed in the memo. of appeal. I have heard the learned counsel for the appellants and respondent, perused the R&P of the Rent Controller and also the impugned order. The tenancy in the instant case started under written agreement, dated 4th May, 1970 which provides for payment of monthly rent in advance on the first day of each month. It is not in dispute that on 3‑12‑1974, when the eviction application was filed against the respondent before the Rent Controller, rent for the months of Ist June, 1973 upto the month ending 30th November, 1974 amounting to Rs.3,924 was not paid. It is also not in dispute that after filing of the eviction application and before service of the notice in the eviction application the respondent sent Cheque No. 44861, dated 1‑5‑1975 for Rs.4,

540. The cheque was encashed on 24‑6‑1975. It is also not in dispute that the respondent also sent another Cheque No. 983955, dated 1‑5‑1975 for Rs.2,736 drawn on Habib Bank Ltd., W . P. Road Transport Branch, Lahore which was dishonoured. The case of the appellants that the rent in respect of the premises in dispute was payable in advance on the Ist or each month and the respondent had not paid rent, with effect from Ist June, 1973 upto the month ending 30th November, 1974. The respondent stated that the respondent has already paid the rent due to the appellants. The view of the Rent Controller that the respondent was not a defaulter and no rent was due at the time of the filing of the case is based on a misconceived notion of law. The tender of rent contemplated under section 13(2)(,) of the repealed Sind Urban Rent Restriction Ordinance, 1959 and section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 should be within fifteen days of the specified in the agreement or mutual agreement and in case there is no such agreement, within sixty days of the rent becoming due. The fact that the rent was sent through cheque, dated 1‑5‑1975 after default was committed, before the service of notice of the eviction application against him is of no significance as such the tender or sending of rent through cheque cannot erase the effect or consequence of default already committed by him. In the case of Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 S C M R 262, the Hon'ble Supreme Court laid down following dictum:‑ "It is thus evident that the rent must be paid within 15 days after the expiry of the time fixed in the agreement within 60 days from the period for which the rent is payable. The tender contemplated under the explanation must be a tender within the time prescribed in clause (i) of the subsection. Besides the petitioner has already admitted that lie was actually in default." Mr. Mirza Rashid, learned counsel for the respondent, has contended that the appellants accepted the rent after due date and the appellants waived their rights. This contention is misconceived. The eviction application was filed on 3‑1`d‑1974 and the cheque was issued on 1‑5‑1975. I am of the view that the liability to ejectment arises on~ account of the commission of default in the payment of rent and if the' landlord accepts rent for a period at a date subsequent to the filing of this application, by this act the liability cannot be waived. It is necessary to refer the case of M. Fazil Zahir and others v. Begum Jan P L DI 1966 Lah. 53 in which Mr. Anwarul Haq, J (as he then was) examined the question of waiver by the landlord's acceptance of rent subsequent to default has taken place or at a date subsequent to the filing of his application for the tenant's eviction, and it was held as follows:‑ "On the reasoning adopted in this authority, it would appear that the liability of a tenant for eviction in respect of buildings and tenancies governed by the Ordinance is to be regulated by the provisions of the Ordinance alone, and the principles of the Transfer of Property Act are not to be imported. I am in respectful agreement with this reasoning. According to clause (i) of subsection (2) of section 13 of the Ordinance, a tenant is liable to be evicted if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisified that the tenant has not paid or tendered rent due by him in respect of building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable. The liability to ejectment arises on account of the commission of default in the payment of rent, and there is no provision in section 13 of the Ordinance that such liability waived if the landlord accepts rent for a period subsequent to that for which default had taken place, or at a date subsequent to the filing of his application for the tenant's eviction." In the case of Mirza Abdul Aziz Beg v. Mushtaq Ahmed Shaikh 198 ) S C M R 834, the Hon'ble Supreme Court laid down the following dictum: ‑ The appellant had undertaken to pay the rent in advance on the first of each month. And as the eviction application was filed for default in the payment of rent during the pendency of the lease agreement, the question of the applicant's default has to be determined solely in the light of the expressly accepted by him. Therefore, the rent of September had to be paid within fifteen days of the first of September, and the rent of October within fifteen days of the first of October, 1975 and as admittedly, this was not done, the lower Courts were right in holding that the appellant had failed to pay rent for two months." The dictum laid down in that case is applicable to the facts of this case. In case of Syed Shafiuddin v. Abdul Hakim Khan P L D 1978 Kar. 149, Mr. M. A. Rashid, J. held as follows:‑ "subsequent payment of rent does not have the effect of washing out the default." I am of the view that a default in the payment of rent as1 contemplated by section 13(2)(,) of the repealed Ordinance or section, 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 having once' been committed, such default cannot be wiped out or erased by subsequent payment of rent. Nor can the penalty of eviction that has been incurred by reason of such default can be stayed off by subsequent payment of rent. Therefore, the contention is misconceived. The last contention of Mirza Rashid, learned counsel for the respondent. is that the appellants have not cared to appear in the witness‑box and, therefore, the appellants have failed to prove their case as put forward in their eviction application. In this connection he relies upon case of Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others P L D 1972 S C 25 and Messrs United Bank Ltd. v. Messrs Interior Decoration and Design Association 1983 C L C

244. The cases cited by the learned counsel for the respondent do not support the contention of the learned counsel. In the first case, the defendant filed written statement and he died during the pendency of the suit before his evidence was recorded. He, therefore, could riot appear in person to state whether he had notice of the original contract or not. There is, therefore, no negative evidence on behalf of the appellants to discharge the burden which lay so heavily on them. The learned counsel for the appellants contended that the deceased had denied the factum of the notice in the written statement and this should be considered as evidence in the case under section 32 of the Evidence Act. His contention was not accepted and the Hon'ble Supreme Court held as follows:‑ "Written statements cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case." The facts of the other case cited by the learned counsel for the respondent are that the defendant filed written statement but he chose to remain absent. He did not step into the witness‑box or give evidence on his own behalf. His non‑appearance as a witness, therefore, would be the strongest possible circumstance to discredit the truth of his case. In the instant case there is no allegation of the respondent that the facts alleged in the eviction application forming the basis of the case sent up by the appellants were in the exclusive knowledge of the then Chairman of the appellants. It is a well‑settled that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross -examination. His non‑appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case. In the instant case, the accountant of the appellants was fully conversant with the affairs of the property owned by the appellants and even by the stand taken by the respondent himself it was accountant who was responsible for the collection of rent and who is responsible to maintain the accounts of the appellants. I am, therefore, of the view that the finding of the Rent Controller on the issue of default was not at all justified. As a result of the above discussion the appeal is accepted with no order as to costs and the order of Rent Controller is reversed and the eviction application is allowed: The respondent shall place the appellants in possession of the, premises in question by 31‑12‑1985. H . B. T. Appeal accepted.