1988 PLP 1361 (MLD)

This First Rent Appeal has been filed against the order dated 12th March, 1985, of XVth Senior Civil Judge/Rent Controller, Karachi, whereby he allowed the rent application of the respondent on Issue No.1, the default in payment of rent. A Rent Case No. 3863 of 1982 was filed by respondent under Section 15 of the Sind Rented Premises Ordinance, 1979, on the ground of default and using the premises for the purposes other than for which it was let out to him. The written statement was filed by the appellant and the Rent Controller framed the following two Issues:‑ (1) Whether the appellant is defaulter in payment of rent from April, 1982? (2) Whether the appellant is using the premises for the purpose other than that it was let out to him? Issue No.2, was decided against the respondent but Rent Controller came to the conclusion that appellant is wilful defaulter as such he has been directed to hand over the vacant possession of the premises to the respondent., within one month from order. I have heard Mr.lbrahim J.Mojawala for the appellant. It is contended by the learned counsel that in the year, 1974 Rent Case was filed on the ground of default but was subsequent compromised and rent was enhanced from Rs.37.50 to Rs.95.00. It is argued that there was a practice between the appellant and the respondent for collecting the rent in lump sum. Mr. Ibrahim referred to the cases reported in 1986 S C M R 1057; 1987 C L C 1757; P L 1? 1985 Kar. 47 and P L D 1987 Kar.

460. Mr.Zaheer Ahmed Qureshi appearing for the respondent submitted that appellant is wilful defaulter, therefore, he filed case against him in the year, 1974, but in spite of that he has failed to tender the rent every month as required by law. In the rent application specifically it is mentioned that appellant failed to pay the rent from April 1982 to August 1982, for five months. In para. 3 of the written statement appellant Muhammad Saddiq categorically stated that rent for the period April 1982 to August, 1982, was received by rent collector/agent/husband of landlady in presence of respectable persons but he did not issue any receipt on the ground that he had no printed receipts at that time and will issue later on. Muhammad Siddiq filed affidavit‑in‑evidence, in which he stated that the respondent was in habit of collecting rent periodically after intervals, therefore, the respondent collected the rent from him for the period from April 1982 to August, 1982, in his presence and in presence of Haroon. In cross‑examination, he has stated that rent was collected on 30th April, 1982. Another witness Haroon has not been examined. The contention of Mr.Ibrahim is that in cross‑examination, Maqbool stated that rent was received and receipts were acknowledged. There is ambiguity in cross, therefore, the entire sentence be reproduced:‑ "I maintain account of rent. I received rent for the period November, 1981 to March, 1982, on 1‑4‑1982. 1 produce counter‑foils of rent receipt dated 1‑4‑1982, as Ex.A‑1G. It is incorrect to say that I had not issued receipt of rent for the period from April, 1982, to August, 1982, in spite of receiving rent. Rent receipts of this period had been issued to the opponent." The first reply is in negative and so far the second is concerned, there is specific plea taken by the appellant that he paid the rent to husband or the son. These are all contradictory versions. The practice has been claimed by Mr.Ibrahim but there was a practice of issuing rent receipt too. The practice of rent collecting cannot be considered isolated. There are two versions of the appellant that this amount was paid to the rent collector herself/agent/husband according to the written statement and affidavit‑in‑evidence. Mr.Zaheer Qureshi invited our attention to the application made before the rent collector requesting that special oath be given to the appellant if he paid the rent to the respondent. Such application is on record and contents are as under:‑ "That in case the opponent is not ready to state the above on special oath. At this Hon'ble Court may be pleased to form an adverse opinion against the opponent while deciding this case." This application was resisted by the appellant and he had not taken the special oath. At this stage, Mr.Zaheer Qureshi states at the Bar that in case appellant takes oath that he paid the rent to the landlady, he will not press this issue but Mr.Ibrahim has shown inability to consider this aspect of the case on the ground that he has not been able to contact his client. In view of the circumstances of the case stated above, I am of the view that cases cited by Mr.Ibrahim are distinguishable. It is clear that default has been proved and appellant has not been able to show that he paid the rent and there are contradictions in the evidence, therefore, appeal is dismissed . In the alternative, Mr.Ibrahim requests that this is commercial premises and appellant be given one year's time. Mr.Zaheer Qureshi has opposed this request but conceded for six months' time. It is an admitted position that appellant is old tenant since 17 years and he is doing business. I give one year's time to the appellant to handover the possession to respondent by 10th of December, 1988. In the meanwhile, he should pay rent regularly. In case he failed to pay the rent on or before 10th of every month or failed to handover possession to respondent on 10th December, 1988, he shall be evicted without notice. By consent the respondent can withdraw the rent already deposited and also the future rent. H.B.T./M‑418/K Appeal dismissed.