1992 PLP 2077 (CLC)

Ali Muhammad Memon for Appellant. M.S. Qureshi for Respondent. Date of heairng: 12th February, 1992. By this F.R.A. the appellant has challenged‑ the judgment of IIIrd Senior Civil Judge and Rent Controller, Karachi East dated 22‑10‑1987, whereby he dismissed the rent application riled by the appellant.

2. Briefly stated the facts forming the background of this F.R.A. are that the appellant is the owner and landlady of the premises bearing No. 69‑3/D, Nursery Market, Block‑6, P.E.C.H.S. Karachi, while the respondent is the tenant in respect of the ground‑floor of the said premises at a monthly rent of Rs. 1,000 payable in advance on every 10th of calendar month vide agreement dated 6‑8‑1981. The agreement was initially executed for three years and fresh agreement was to be executed after the expiry of the said period. Hence the appellant required the respondent through notice either to execute a fresh agreement or vacate the premises, but the respondent did not give any reply to the notice. It is further alleged that he did not pay any rent from July, 1984 to January, 1985 in spite of repeated requests. Hence on 29‑1‑1985 the appellant sent a Registered A/D notice to the respondent, but the respondent did not reply. The appellant also claims that she requires the premises in question for her bona fide personal use. Hence she filed the ‑ejectment application.

3. The application was resisted by the respondent, who filed written statement wherein the relationship of landlady and tenant was admitted, so also the execution of the first rent agreement. It was, however, alleged that in the year 1984 a fresh oral agreement was entered into between the parties and the rent was increased from Rs.1,000 per month to Rs.1,100 per month, but it was denied that the same was payable in advance. It was admitted that the notice dated 7‑7‑1984 was received, but it was denied that the respondent had failed or neglected to pay the rent from July, 1984 to January, 1985. It was alleged that the rent for the months of July and August, 1984 was paid to the appellant but she did not issue any receipt for the same. It is further alleged that the appellant thereafter informed the respondent that she has transferred the property, but did not disclose the name of the transferee. The respondent smelling the foul play started remitting the rent to the appellant by money orders. He remitted the rent for the months of October, November and December, 1984 by money orders, but the same were refused by the appellant. He, therefore, started depositing the rent with the Controller in M.R.C. No.427 of 1984 from January, 1985. He has also denied that the appellant requires the premises for her bona fide personal use.

4. The appellant filed Affidavit of her Attorney Mrs. Yasmin Khan, the General Power of Attorney, Agreement of Tenancy and copy of notice dated 7‑7‑1984. As against this the respondent filed his own affidavit, the copy of draft of agreement of renewal of tenancy, photostat copies of money orders coupons, money order receipts, and copy of reply to appellants' notice. He also riled the original coupons of money orders and affidavits of witnesses Khaleeq Ahmed and Noor Muhammad and also the original notice dated 29‑1‑1985 sent by the appellant. All these deponents were cross‑examined by the learned counsel for other side.

5. The learned Controller took up for determination the issues as to default in payment of rent and requirement of the premises for personal use and decided both the issues in favour of the respondent and dismissed the application.

6. I have heard Mr. Ali Muhammad Memon, learned counsel for the appellant and Mr. M.S. Qureshi, learned counsel for the respondent. The allegation of the appellant/landlady before the Controller as well as this Court was that the respondent/tenant has defaulted in payment of rent from July, 1984 to January, 1985. Her attorney Mrs. Yasmin Khan filed affidavit to the effect that the respondent/tenant failed and neglected to pay rent from July, 1984 to January, 1985 in spite of repeated demands. She was cross?examined by the respondents counsel, but the cross‑examination did not bring about any statement that could support the respondent's ‑case. Hence the burden was heavily upon the respondent/tenant to prove that he had paid or tendered the rent for the said period. The respondent has not produced any receipt whatsoever for the payment of rent for the months of July, August and September, 1984. Reliance‑in this connection was placed in the decision in the case of Syed Abu Jafer v. Shaikh Karim Bux 1985 CLC 1952, where Saeeduzzaman Siddiqui, J. (presently Chief Justice) held that 'in view of the fact that on all earlier occasions the appellant used to issue receipts for the payment of rent so received by him and the tenant did not produce rent receipts for the disputed period of default in payment of rent, the burden of proving that the rent for such period was paid by the respondent heavily lay on the respondent. The respondent's counsel has relied upon the case of Mst. Shahnaz Begum v. Mrs. S.B. Hussain (1985 MLD 478) where it was held that 'when original coupons of money orders produced by the tenant were not challenged by the landlord tender of rent was held to have been proved, although the postman was not examined. He has also relied upon the case of Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110 where it was held that 'where facts deposed in examination‑in‑chief were not questioned in cross ?examination by ‑opposite‑party, the same would be deemed to have been accepted". Both these rulings are distinguishable from the present case because the appellant has challenged the money orders' coupons and has denied that the said amount was sent to her by money order. No doubt the respondent has stated in his affidavit that he had made payments of rent for the months of July, August and September, 1984, but no receipts were issued to him. He has further stated that this payment was made by him through co‑tenant Abdur Rahman. Abdur Rahman has not been examined by the respondent. Respondent's witnesses Khaleeq Ahmed and Haji Noor Mohammad have not given satisfactory evidence. They appear to have come forward only to oblige the respondent.

7. Regarding rent for the months of October, November and December, 1984, it is alleged by the respondent that the same was sent by money order, but was refused by the appellant/landlady. The money order's coupons have been produced by the respondent, but these do not show that the amount was offered to the appellant and she refused to receive the same. The address of the appellant is also not given on this money order's coupon. It was the, duty of the respondent to have examined the postman and to have established that the money order was addressed correctly to the appellant and that she refused to receive the amount when it was offered to her. The appellant's Attorney has denied in her affidavit‑in‑evidence that any such amount was sent to her by money order. She also challenged the statement of the respondent in her affidavit that the rent for the months of July to September, 1984 was paid through co‑tenant Abdur Rahman and , that the rent for October, November and December, 1984 was sent through money order.

8. The respondent's counsel further contended that a sum of Rs.6,000 was lying with the appellant which could be adjusted towards arrears of rent. This contention of the respondent is not tenable. By now it is settled law that the amount lying deposited with the landlady, cannot be adjusted towards arrears of rent. Reliance in this connection is placed in the well‑known decision of Hon'ble Supreme Court in the case of Mrs., Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190.

9. Lastly it was contended by Mr. M.S. Qureshi, learned counsel for the respondent, that since the Agreement of Rent was neither registered, nor attested, therefore, although it created tenancy, but month to month and therefore, the remaining provisions, including that of payment of rent in advance on 10th of every month, cannot be enforced and the respondent was entitled to pay rent within 60 days of the expiry of the period when the rent became due. This contention does not hold any water, because it is clear that the respondent has failed to prove that he paid any rent either by hand for the months of July, August and September, 1984 or by money 'orders for the months of October, November and December, 1984 and therefore, the period of default goes much beyond 60 days. Even otherwise it has also been held in Mrs. Zarina Khawaja's case (supra) that 'the terms of the so‑called expired agreement which are not repugnant to the rent laws shall continue to operate for example rate of rent, mode of payment thereof including its advance payment'. It is, therefore, quite clear that the respondent has defaulted in payment of rent for the months of July, 1984 to December, 1984 and is, therefore, liable to be ejected. The appeal is allowed, the order of the learned Controller is set aside and the respondent is directed to vacate the premises within three months from today. H.B.T./S‑905/K?????????????????????????????????????????????????????????????????????????????????? Appeal allowed