2000 PLP 498 (SCMR)

KAMAL MANSUR ALAM, J.

The petitioner is seeking leave to appeal from the judgment, dated 15-9-1999 of learned Judge of the High Court of Sindh, allowing respondents' F.R.A. No.375 of 1992 challenging the order, dated 5-7-1992 of the VIII Senior Civil Judge and Rent Controller, Karachi South, dismissing respondents' application filed under section 15 of the Sindh Rented Premises Ordinance, 1979 for the eviction of the petitioner.

2. The respondents, by their eviction application, sought eviction of the petitioner on two grounds, namely, default in the payment of rent and making unauthorised additions and alterations in the premises, thereby impairing its material value and utility. The application was resisted by the petitioner who denied both the allegations. With regard to the allegation of default in the payment of rent, it was averred that rent up to April, 1990 was paid to the respondents against receipt, however, after April, 1990', the respondents refused to accept the rent, whereupon the same was deposited in Court in M.R.C. No. 1088 of 1990. It was further claimed that the petitioner had paid a sum of Rs.1,50,000 by way of Pugri. Both the parties produced their respective evidence before the learned Rent Controller who, by order, dated 5-7-1992, dismissed the eviction application. Aggrieved by the dismissal of the eviction petition, the respondent approached the High Court in appeal, which was allowed by the judgment now impugned. The learned Judge in Chambers found that the petitioner had deposited a sum of Rs.1,120 being rent for the months from September, 1990 to March, 1991 -at the rate of Rs.160 in the aforesaid M.R.C. No.1088 of 1990 on 14-2-1990, and therefore, default in the payment of rent for the months of September, October and November was committed.

3. Mr. Shafaat Hussain, the learned Advocate Supreme Court appearing for the petitioner, did not dispute this finding, however, he submitted that the petitioner had paid a sum of Rs.1,50,000 to the landlord by way of Pugri, and therefore, following the dicta laid down by this Court in the case of M.K. Muhammad and another v. Muhammad Abu Bakar (1993 SCMR 200), the rent for the defaulted period could be adjusted against such Pugri. The contention has no force. The case relied upon by the learned counsel is clearly distinguishable and has no application to the facts of the present case. In the referred case the landlord had himself received Pugri from the tenant, and therefore, it was held by this Court that as he was not entitled to receive such amount under the law, the same could be adjusted towards the arrears of rent. In the present case, on the other hand, admittedly, the alleged amount of Pugri was not paid by the petitioner to the respondents-landlords, this amount is claimed to have been paid to the previous owner of the building, from whom it was purchased by the present respondents. From the evidence it appears that the respondents were not even aware of such Pugri having ever been paid to their predecessor-in-interest. There is also an admission of the petitioner that he had not informed the respondents about the payment of Pugri to the previous owner of the building. The learned counsel, however, submits that the respondent in his cross-examination admitted the payment of Pugri to the previous owner in the following words:-- "It is incorrect that I had received Pagri of Rs.1,50,000 from opponents. But first landlord of the building had received Pugri. " There appears to be some typing mistake in the recording of this portion of the cross-examination, for, during the same cross-examination, the respondent has categorically stated: "It is incorrect that first landlord told me about the Pugri given by opponents to him. " It is therefore, apparent that neither the previous landlord had informed the respondents about the receipt of Pugrt nor had the petitioner provided him such information, as such the respondents could not be said to have reliable information about the payment of Pugri by the petitioner to the previous owner. This position further finds support from the fact that in the cross-examination of the petitioner as also that of his witness it was put to them that no Pugri had been paid by the petitioner to the previous landlord. 4. -It is. thus, fully established that no Pugri was ever paid by the petitioner to the respondents and even the allegation about the payment of Pugri to the previous owner remains in doubt. This being so, there could hardly be any question of the adjustment of the arrears of rent against Pugri. Even assuming, for the sake of argument, that Pugri had been paid to the previous owner, as contended by the learned counsel, then too no adjustment of the arrears of rent against such Pugri can be claimed, when the property has already been sold to the present respondents; surely these respondents cannot, by any streteh, be made to suffer for the unlawful doings of others. In the result, we find no merit in the petition which is accordingly dismissed and leave is refused. However, we allow one year's time to the petitioner to vacate the premises and as such the vacant possession' of the premises will be handed over by the petitioner to the respondents by 2-1-2001 subject, of course, to the continued regular payment/deposit of rent of the premises by the petitioner and in case of any delay of default in delivering the possession of the premises to the respondents within the time aforesaid or in payment/deposit of rent, writ of eviction would issue without notice and with police aid, if necessary. M.B.A./M-3/S ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.