P L D 1986 Karachi 100 (PLP)

Feb. 192769 6‑2‑78 Rs. 250 Mr. Muhammad Mustafa. I‑4‑78 Mar. 279572 5‑3‑78 Rs. 250 ‑do‑ 1‑4‑78 Apri127957516‑6‑78 Rs.250 ‑do‑ 24‑6‑78 May. 279576 6‑7‑78 Rs. 250 ‑‑do‑ 10‑7‑78 June 279578 3‑8‑78 Rs. 250 ‑do‑, 3‑8‑78 July 279579 4‑9‑78 Rs. 250 ‑do‑ 14‑9‑78 Augs. 279580 7‑10‑78 Rs. 250 ‑do‑ 9‑10‑78 Sept. 272894 6‑1‑79 R9. 250 ‑do‑ 13‑1‑79 Thanking you, Yours faithfully MANAGER." The respondent when asked in cross‑examination made the following statement with regard to above statement of bank :‑ "I see the Bank statement as Annexure 'D'. It is a fact that cheque No. 192769 was for the month of February, 1978. The above cheque for March, 1978., The subsequent cheque is for April, 1978. The remaining cheques are for the subsequent months. It is fact that last cheque shown in Bank statement is for September, 1978 and it bears the number 272894, dated 6‑1‑1979. It is incorrect to suggest that the statement of Bank is false." It is also pertinent to mention here that when asked in cross‑examina tion the respondent gave following reply with regard to receipt No. 4, dated 2‑2‑1979. "It is a fact that as per Exh. 4, 1 have stated that the rent for November, December, 1978 has received by the applicant, It is incorrect to suggest that this statement of mine is no: true. It is fact that if Exh. 4 is proved to be incorrect with regard to the entry of receipt of rent for November to December, 1978 then it will be presumed that I have not paid rent. It is fact that, I never paid the rent for 5, 6 months together to advance." In view of the above admission of respondent in cross‑examination and the pleas in written statement there was hardly any justification or material available to the Rent Controller to have reached the conclusion the rent for the months of October to December, 1978 was paid td the appellant, vide receipt dated 2‑2‑1978. In fact the conclusion of Rent Controller is not only based on perverse appreciation of evidence but is also based on fallacious .reasoning. It was equally disgusting to note that the learned counsel for the respondent in spite of realising the falsity of the stand taken by him before the Rent Controller that the respondent. had paid the rents from October 1978 to December, 1978 through receipt No. 4 dated 2‑2‑1978, persisted to justify the same by contending that the counterfoils of the Rent receipts were admitted on record surreptitiously before the Rent Controller behind the back of respondent. When it was pointed out to the learned counsel that further cross‑examination of appellant before the Rent Controller was reserved at hip request for produc tion of counterfoil and these counterfoil were brought on record at his instance on the next date, he pleaded his ignorance about the same .although he represented the respondent before the Rent Controller. Similarly when asked about the bank statement Annexure 'D' produced by his client (respondent) before the Rent Controller, the learned counsel to my utter surprise contended that the cheque, dated 6‑2‑1978 represented the rent for April, 1978 and as such the cheque, dated 7‑10‑1978 was towards the rent of October, 1978.. This deliberate attempt on the part of learned counsel for the respondent to mislead the Court .is regrettable as the respondent in his cross‑examination admitted that the cheque, dated 6‑2‑1978 represented the rent for February, 1978 and the subsequent cheques for subsequent month which means that the cheque dated 7‑10‑1978 was paid towards the rent of August, 1978. Not only this, the respondent who was present in Court when asked in presence .of his counsel confirmed before me that cheque dated 6‑2‑1978 in the bank statement (Annexure 'D') was towards rent of February, 1978 and subsequent cheques were for subsequent months. Confronted in this situation the learned counsel turned round and stated that if be is given time he can produce evidence to show that two cheques issued by respondent were not entered in the bank statement. The conduct of the learned counsel in the case is deploreable. In view of the above discussed evidence there is no room for any doubt that on the date the appellant instituted the rent case, rent from October, 1978 to December, 1978 was not paid. The learned counsel for the respondent also raised an alternate argument before me that the applica tion on the ground of default in payment of rent was premature on the date of its presentation as there was no agreement between the parties for payment of rent in advance by any specified date. The appellant in his ejectment application in para. 2 pleaded as follows :‑ "

2. That the opponent named above is the tenant in respect of that No. 2 Mustafa Building, B. S. 15/3, Karimabad, F. B. Area, Karachi at a monthly rental of Rs. 250 on advance rent basis, commencing from 15th October, 1972 under a written Agreement, dated 15‑10‑1972, A photostat copy of the Agreement is annexed herewith and marked as Exh. 'A for the perusal of this Hon'ble Court. The tenancy is at will and not for any particular period is agreed upon:" The respondent in his written statement dill not dispute the content of para. 2 reproduced above but stated that the writing Annexure 'A' to application was only money receipt and it did not fulfil the requirement of an agreement. The writing Annexure `A' relied by the appellant reads as follows :‑ "Received from Syed Muhammad Yousuf son of Syed Nazirul Hussain Rs. 750 (Rupees Seven Hundred Fifty only) cash being payment as security deposit to be refunded upon vacation of the premises and after adjustment of dues if any. Syed Muhammad Yousuf shall pay the rent Rs. 250 (Rupees Two Hundred Fifty only) per month on advance rent basis commencing from 15th October, 1972. This receipt is for the Flat No. 2, of Mustafa Building B. S. 15/3, Federal 'B' Area Karachi. Consisting three rooms one hall, one bathroom and one laterine and one kitchen and open courtyard., Syed Muhammad Yousuf shall pay the rent regularly every month in advance on the first week of every calendar mouth and to pay for electrical energy consumed in the `Demised premises' (and addition Rs. 25 for sui gas if used). Landlord Witness : (Muhammad Mustafa) Dated October, 1972, ‑ Tenant (Syed Muhammad Yousuf).' A reading of the above writing which is admitted by the patties, will show that payment of rent was contemplated in advance in the first week of every month. The learned counsel for the respondent was unable to advance any argument in support of his contention that the above writing did not fulfil the requirement of agreement between the parties to pay rent of the premises in advance. No particular form is prescribed under any law for entering into such agreement and, therefore, there is no valid C ground to hold that the writing reproduce above did not constitute an agreement between the parties to pay rent of the premises in advance. I will now take up the default alleged by the appellant against the respondent in complying with the direction of Rent Controller under section i 13 (6) of the repealed Ordinance VI of 1959. The tentative rent order was passed by the Rent Controller on 1‑8‑1979. The respondent was required to deposit in terms of the above order a sum of Rs. 2,000 fro October. 1978 to July, 1979 in Court before 30‑9‑1979. The respondent was allowed to adjust the rent already deposited by him in Miscellaneous Rent Case No. 1056/1979 from the above amount. The respondent was also D directed to deposit future monthly rent from August 1979 before 15th o each month. The respondent deposited until 13‑9‑1979 in Rent Case No. 1056 of 1979 a sum of Rs. 1,750 only. He further deposited a sum o 250 in the rent case instituted by the appellant on 30‑9‑1979. In this manner, the respondent only complied the direction of Rent Controller relating to deposit of arrears of rent but committed default in payment of rent for August, 1979. This petition is almost admitted as would appear from the order of remand, dated 19‑12 1983 passed by this Court in F.R.A. No. 107 of 1983. No attempt was made by the respondent after remand of case to Rent Controller, to establish that the rent for August, 1979 was paid or deposited by him. in Court or that the default for August, 1979 was .for reason beyond the control of respondent. The respondent, therefore, also committed the default in complying the direction of Rent Controller. For the above reasons the appeal is allowed and the order of Re n Controller is set aside. The ejectment application of appellant is granted on the ground of default in payment of rent from October to December, 1978 and for non‑deposit of rent for August 1979 in Court as directed by Rent Controller. The respondent will also bear the costs of this appeal. In view of the fact that the respondent had raised a false plea of payment of rent. I was inclined to grant him only one month to vacate the premises but the learned counsel for the respondent stated that he proposes to file an appeal against the order to Supreme Court and for that purpose he needed longer time. I accordingly grant four months to respondent to vacate the premises subject to condition that he will continue to deposit monthly rent in Court during that period. The appeal was disposed of by a short order, dated 28‑11‑1985 and these are the detailed reasons for the short order. M.Y.H. Appeal accepted.