2006 PLP 1389 (YLR)

MRS. QAISER IQBAL, J.

The appellant being aggrieved and dissatisfied with the impugned judgment dated 28-6-2000 passed by the Additional Rent Controller, Clifton, Karachi, in the Rent Case No.15 of 1998 whereby the ejectment application filed by the respondent was allowed, resorted to file the present appeal.

2. The facts leading to the appeal are that the respondent is a landlady/owner of Property bearing 18-C, Lane 3, Main Zamzama Boulevard, Phase V, Defence Housing Authority, Karachi, show-room situated on ground floor, (hereinafter referred to as demised premises) was let out to the appellant under a tenancy agreement dated 1-10-1996 at a monthly rent of Rs.19,

965. The ejectment application has been filed on the ground that the appellant had failed and neglected to pay the rent from October, 1997 to January, 1998 at the agreed rate thereby committed the default. It is also pleaded that the appellant had impaired the value and utility of the premises by making additions and alterations and damaged the same by constructing the pillars, underground water tank and a partition wall whereby changed the structure of the demised premises.

3. The appellant in the written statement denied the allegations levelled by the respondent, contended that he was a tenant of the demised premises since October, 1991 which was let out at a monthly rent of Rs. 15,000, which was regularly paid by him on quarterly basis as per arrangement between the parties. It is pleaded that the respondent wanted to enhance the rent at exorbitant rate, therefore, she had created a ground of default, the rent was regularly deposited in Misc. Rent Case No.18 of 1998 no default was committed by the tenant nor the value and utility of the demised premises was impaired.

4. The learned counsel for the appellant has raised the following contentions in support of the appeal; (i) The Learned Rent Controller has erred in law by recording evidence under his dictation through his reader, which are full of discrepancies and cuttings and cannot be relied upon for the purpose of adjudication of the controversy. (ii) The rent was tendered by the tenant to the landlady on the quarterly basis under receipts since the year 1991, only on execution of tenancy agreement, it was mentioned that the rent would be payable in advance but practice of payment of rent on quarterly basis continued, (iii) the demised premises was let out for carrying on business of boutique and parlour, a temporary partition erected, cannot be termed as major alteration whereby the structural change was made to impair the value and utility of the demised premises.

5. On the other hand, the learned counsel appearing for the respondent has raised the contentions: (i) The discrepancies in recording the evidence by the learned Rent Controller are not fatal to the case as these bear signatures of the learned Rent Controller as well as of the witnesses. The objection was neither raised before the Rent Controller nor in the memo. of appeal as such objection is liable to be ruled out of consideration. (ii) The tenancy agreement between the parties expired in the year 1997, the appellant being statutory tenant under the law was bound to pay the monthly rent on quarterly basis as warranted under the circumstances of the case. (iii) Admittedly the tenant has impaired the value and utility of the demised premises by constructing the partition wall and renovating the demised premises according to its need without the consent of the landlord.

6. I have considered the arguments advanced at bar. Adverting to the first contention, which relates to recording of evidence by the learned Rent Controller through his reader bearing cuttings and interpolations, it is admitted that the evidence was produced by the parties which was recorded by the official of the Court under the dictation of the Presiding Officer. The parties have cross-examined the witnesses of each other, the objection was not raised before the trial Court nor at the time of final hearing of the case, therefore, no prejudice would be caused to any one of the parties of the case. It will be just and proper that the case be decided on merits instead of remanding the same to the trial Court for recording the evidence afresh. In support of the above view reliance in placed on Muhammad Shaiq Hussain v. Samir Manzoor Khokhar (2003 CLC Lah.1652), Mst. Sardar Bibi v. Hameed (2000 CLC Lah.1311). It is emphatically clear from the record of this case that the initial of the Presiding Officer are available on the statements recorded by the trial Court. There is no difference between the hand written and typed material except that there is typographical error about the year available on the record of the trial Court which itself is not material to oust all evidence recorded by the trial Court.

7. Adverting to the point raised by the learned counsel for the appellant that per mutual agreement the rent regarding the demised premises was payable on quarterly basis in arrears in the year 1996 the respondent had approached the appellant for execution of a written agreement prepared for the purposes of taxes, which was executed on 1-10-1996 one year advance rent was paid by the appellant and received by the respondent per clause (1) of the agreement. In fact the rent was neither received in advance nor paid for, such period but the same was paid on quarterly basis in arrears as per memorandum of understanding between the parties. It is emphatically contended that the Cantonment Rent Restriction Act, 1963 does not prohibit or limit the period for payment of rent; it is for the party to agree either for payment of rent on daily basis, weekly basis, monthly basis, quarterly basis, half yearly basis or yearly basis. In this context, section 17(2)(i) of the Act, 1963 provides that within 15 days of the expiry of time fixed in the agreement of tenancy for payment of rent. It is urged that memorandum of understanding proves the rent was agreed to be paid and was always paid on quarterly basis which is established from the un-disputed rent receipts placed on the record. The contents of the affidavit-in-evidence of the appellant as contained in para.3(i) to (vii), the respondent did not question or challenge the documents produced by the tenant which emphatically prove that the rent was paid on quarterly basis. The respondent had filed Rent Case No.15 of 1998 in the month of February, 1998 alleging default from October, 1997 to January, 1998. It is pointed out that rent for the period from October, 1996 to 1997 was paid. The rent from October, 1996 to December, 1996 was paid on 10-2-1996, January, 1997 to March, 1997 on 3-4-1997, July, 1997 to September, 1997 on 11-10-1997. Thus, the rent for the month of October to December, 1997 was payable in the month of January, 1998 on quarterly basis. It is also contended that since the inception of the tenancy, rent was paid through cheques, subsequently, the rent was tendered through money order before filing of the rent case. In support of the above contentions reliance is placed on the case laws reported as Usman Ghani v. Gulzar (1987 CLC Kar.1753), Abdul Aziz v. Abdul Ghani (1986 SCMR 1857), Ismail v. Ahmed Bux and Sons (1998 MLD 940), Tahir Ali v. Sh. Miran Bux Karam Bux (1989 SCMR 403), Mehrban Ali v. Haji Muhammad Qasim (PLD 1976 Lah.1052), Syed Niaz Ahmad Zaidi v. Mst. Baismillah Begum (1990 CLC 1061), Mst. Saeeda Bano v. Abdul Aziz (PLD 1993 Kar.174), Pervaiz Anwar Sajjad v. Ali Muhammad Rashid Fazal Trust (PLD 1995 Kar.361) and Wajahatullah v. Mahmooddur Rab (1985 CLC 1949).

8. The learned counsel for the appellant has contended that it is settled law that no date is fixed for payment of rent, the tender of rent within 60 days following the period for which rent is due would be deemed to be a proper tender under the law. It is next urged that the rent being payable on quarterly basis in arrears could have been paid up to 30-2-1998, therefore, the eviction application filed in 10-2-1998 on the ground of default was itself pre-mature and not maintainable in law.

9. Learned counsel for the respondent has controverted the above position and contended that after the expiry of the tenancy agreement dated 1-10-1996, the tenancy was governed on the basis of terms of said agreement the tenant was statutory tenant and was liable to pay the rent on monthly basis. The plea of the tenant that the agreement was executed for the purpose of tax authorities is not sustainable in law. The memo of understanding permitted the tenant to pay rent after three months for one year which came to an end, tenancy agreement existed in order to facilitate the appellant to pay the rent within the stipulated period provided under the law. The alleged practice of payment of rent on quarterly basis cannot be substantiated as a ground of agreement to save the default which has occurred. It is next urged that in my view of the matter the default is apparent from October, 1997 to December, 1997, which is explicitly admitted by tenant and his counsel during the course of arguments, therefore, no benefit can be extended in favour of the tenant on the premises that the rent due was paid in lump sum. In support of the above contention reliance is placed on the case of Muhammad Alimullah v. Ziaul Islam (PLD 1973 Kar.56). It has been laid down in the above cited case "that the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready to pay rent". The discharge of this statutory obligation by the tenant is a condition of its protection and in my humble opinion, he could invoke the discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations".

10. In case of Alima Ahmad v. Amir Ali (PLD 1984 SC 32), the practice of attorney of landlord in collecting accumulated rent was held to be of no avail. The view expressed in Syed Waris Ali Tirmizi v. Liaquat Begum (1980 SCMR 601) was reaffirmed and it was held that alleged practice of attorney of landlord of collecting accumulated rent was of no avail in explaining delay and default as held by the Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period of October to December, 1997 after receipt of the notice. The Rent Controller was clearly in error in holding that there was no persistent or wilful default by ignoring the law laid down by this Court in Tirmizi's case.

11. In the present case no doubt there was in vogue practice for collection of rent by the landlord. The receipts referred to in preceding paras. demonstrate such practice and the respondent had also admitted such practice. The tenant had offered explanation to the effect that the tenancy agreement dated 1-10-1966 was executed just to facilitate the respondent. Conversely, he had tried to achieve benefit of memorandum of understanding with reference to the above tenancy. The tenant had sent rent through money order but no acknowledgement receipt had been placed on record to establish that rent tendered was refused by the respondent. The appellant had taken plea that he had sent a cheque dated 28th December, 1997 the copy of the cheque was not produced to substantiate the above plea. The appellant during the cross-examination had admitted that no endorsement of the refusal of the rent was available in the acknowledgement receipt of the money order. It is manifestly clear from the statement filed by the appellant that on 18-2-1998, vide challan No.118, a sum of Rs.136768 was deposited towards the rent from October, 1997 to March, 1998, which shows that the rent of six months was deposited after it became due and payable, from October, 1997. The appellant had deposited the rent in Court after the expiry of 60 days from the due date.

12. The promptness in payment of rent with the option to the tenant deposited with Rent Controller is a condition precedent for protection against eviction, the appellant was required to deposit the rent in Court on refusal by the landlady or on any other pretext, therefore, I am of the view that the findings of the learned Rent Controller on the point of default is proper and needs no interference.

13. Adverting to the second condition, which pertains to impairing value and utility of the demised premises on account of the structural change, the appellant has candidly admitted that he had not sought any written permission from the respondent for erecting the partition wall. He had changed the flooring of the bath-room. In the written statement, the appellant had taken altogether a different version by stating that no alteration or addition was made in the demised premises. In support of the above contention, reliance is placed in the case of (PLD 1987 Kar.116), the dictum laid down is that the tenant only making minor alteration, which was not likely to impair material value or utility of the premises, the order of the eviction passed by the Rent Controller on the ground of impairment of material value or utility of the premises was set aside. This view finds support from the case reported in (PLD 1983 Kar.166, 167). The respondent, did not examine any expert to prove that the value of her property had been diminished on account of the additions and alterations made without the consent of the landlady. In the absence of evidence, impairing value and utility of the demised premises without the consent of the landlord cannot be a good ground for ejectment. On account of non-availability of evidence in this context, the issue is answered in favour of the appellant. In view of the above discussion on the point of default, the First Rent Appeal No.1176 of 2000 is hereby dismissed. The demised premises in possession of the appellant is commercial in nature, therefore, four months time is allowed to vacate the premises subject to the payment of rent. H.B.T./S-23/K Appeal dismissed.