1988 PLP 1482 (MLD)

The appellant had, thereafter, made an application, stating that the Advocate had made this statement without instructions. Mr. Bashir Ahmad, for the respondent, had contested such point, but ultimately he agreed that the ex parte order may be set aside, and the matter may be heard on merits. I have, therefore, heard Mr. Hussain Shah Rashidi for admission of appeal. BY consent, appellant is given six months' time to vacate the premises. In case, the appellant fails to vacate the house on, or, before the 30th April, 1984, he shall be liable to ejectment without notice. Further, the appellant shall continue to deposit the accruing rents before the Rent Controller, and, in case of failure, this order, granting him time until 30‑4‑1984, shall stand recalled without any notice. [1‑11‑1983]. By a short order, dated 28‑8‑1983, this appeal had been dismissed, and, by consent, the appellant was granted time upto 30‑4‑1984, to vacate the premises. The reasons for such short order presently follow. This appeal was placed before me on 16‑12‑1982, when the Advocate Mr. Zaheer Hassan for the appellant made a statement that he had no instructions to proceed with the matter, and that the parties had also compromised. In such circumstances, the appeal had been dismissed for non‑prosecution. However, the appellant appeared thereafter, and made an application, stating that he had not instructed his Advocate to plead no instructions. A notice was given to the respondent, and his Advocate, Mr. Bashir Ahmad, appeared and consented to the appeal being re‑heard and disposed of on merits. I have heard Mr. Hussain Shah Rashidi for the appellant, and Mr. Bashir Ahmad for the respondent. The appellant is a tenant of the respondent in respect of a house on second floor of a building, bearing No. 212/5 in Agra Taj Colony, Karachi, on monthly rental of Rs.

250. The respondent Filed an application for eviction of the appellant on the ground that he had failed to pay rent for the months beginning December 1979 and ending November 1980, and the appellant had also sub‑let the premises without the consent of the respondent. In a written statement, the appellant denied the allegations in regard to default, and stated that he had paid the rent upto October, 1980. It was averred that the respondent did not issue any receipts. It was also averred that the respondent had asked the appellant to enhance the rent, the respondent had refused to accept the rent, so that the rent for the months of November, December 1980 and January 1981, was sent by Money Orders, but the same was refused by the respondent. In regard to the allegation of sub‑letting, no specific averment was made in the written statement though it was stated that the respondent had made the application for ejecting the appellant. On behalf of the respondent, evidence was tendered by him, and one Muhammad Younus. The respondent has set up a case that the appellant had committed default. He stated that the respondent used to give receipts of rent on plain paper. The respondent had also examined one Muhammad Rafiq, who stated that rent had not been paid. On behalf of the appellant, evidence was given by him and his son Abdul Rashid. An agreement of tenancy was produced, which showed that the appellant had given a fixed deposit of Rs. 2,000 to the respondent. Two Money Order Receipts were also produced, which showed that the rent for the months of November and December 1980, and January 1981 had been tendered by the appellant, but was, refused. Abdul Rashid, the son of the appellant, stated that he used to live with his father, the appellant, and he used to pay the rent to the respondent, who gave no receipt. He had also disclosed the name of one Mukhtar Ahmad as a person in whose presence the rent had been paid. Although an affidavit of Mukhtar Ahmed was placed on the record, yet he was not produced for cross‑examination, so that his affidavit has to be overlooked. In any case, even in the affidavit, Mukhtar Ahmad, had made a vague statement that Abdul Rashid used to pay rent to the respondent in his presence, but he did not state, whether the rent for the months, which form the evidence in this case, had been paid. . The learned Controller ordered the eviction of the appellant on the ground of default. In regard to the issue on the point of sub‑letting the Controller held in favour of the appellant. The short question is, whether the appellant committed default in payment of rent for the months beginning December 1979 and ending November, 1980. Admittedly, the appellant has no receipt in regard to payment of rent. on' that point, the respondent has stated that he always used to give receipt. The appellant, however, has set up a case that receipt was not issued. It is difficult to believe version of the appellant, particularly because of the fact that, if there is an agreement of tenancy in writing, the appellant should normally insist on a receipt being issued. There is no explanation for the appellant not insisting on a receipt. There is no document to show that the appellant ever objected to the respondent failing to' give a receipt. What is more that the only witness on the point of payment is Abdul Rashid, the son of the appellant. He has stated that rent had often. been paid in the presence of Mukhtar Ahmad, but the said Mukhtar Ahmad was not produced for cross‑examination. In these circumstances, the Controller rightly came to the conclusion that the case of the default had been proved. The next point‑for consideration is that the appellant had given a receipt of Rs. 2,000 to the respondent vide the agreement of tenancy, which had been executed on 4‑7‑1977. Even if this circumstance is taken into consideration, the inescapable conclusion is that this amount of Rs. 2,000 would be offset against rent for right months at the rate of Rs. 250 per month. The case of the respondent is that default had been committed from December 1979, so that this sum of Rs. 2,000 shall be offset by July, 1980. Still the appellant was in arrears and has been rightly held to be a defaulter in the payment of rent. For the above reasons, I see no substance in this appeal, which I dismiss in limine. By consent, the appellant is allowed time upto 30‑4‑1984 to vacate the premises, and, in case he fails to vacate, he shall be liable to be evicted without notice. MAX/2550/K Appeal dismissed.