P L D 1976 Karachi 966 (PLP)

This is an appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) against an order passed in appeal by the learned District Judge, Mirpurkhas whereby the order dismissing the application under section 13 of the respondent by the Rent Controller was reversed. This facts giving rise to this appeal are as under The appellant is a tenant of residential premises on the first floor of a building situated on C. S. Nos. 611 and 612, Ward B, Shahi Bazar, Mirpurkhas. This tenancy came into being through an agreement dated 15th February, 1962, between the appellant and the respondent-landlord. On 13th may, 1967, the respondent filed an application under section 13 of the Ordinance claiming that the appellant had failed to pay or tender rent since February, 1967. A prayer was made for the ejectment of the tenant/appellant. In his written statement the appellant/tenant contended that the practice was that the munshis of the respondent-landlord used to collect rent and that they failed to do so since February, 1967. He, therefore contacted the landlord himself who kept him on false promises and when he felt that something was fishy he sent the rent by money order on 15th May, 1967, which was refused. On these pleadings of the parties the learned Rent Controller framed the following issues "(1) Whether the opponent has defaulted in payment of rent ? (2) Is the opponent liable to ejectment ? (3) What should be the final order ?" The learned Rent Controller came to the conclusion that the default was not wilful and, therefore, he refused to grant the prayer made by the respondent-landlord. In appeal a contrary view was taken. The result was that the ejectment of the tenant was ordered and hence the present appeal. The first point taken by the learned counsel for the appellant is that the landlord has not cared to appear in the witness-box and, therefore, he has failed to prove his case as put forward by him in his rent application. In this connection he relies upon Choith Ram v. Khem Chand (AIR 1929Sind 7) and Sardar Gurba Khan Singh v. Gurdial Singh (AIR 1927PC230). But unfortunately the rulings laid down in the two cases cited do not support the contention of the learned counsel. In the first case, the law laid down was that where a party personally knew the circumstances of the case and chose not to appear in the witness box his case should be discredited. Here there is no allegation on the par of the tenant/appellant that the facts alleged in the rent application forming the basis of the case set up by the respondent landlord were in the exclusive knowledge of the landlord himself. That not being the case the ruling contained in A I R 1929 Sind 7, is not available. The law laid down by the Privy Council in the case cited above also does not help the case of the appellant. In this case the practice of not calling the party as witness with a view to force the other party to call him, and so to suffer the discomfiture of having such witness to be treated as a witness of the other party, was termed as a bad and discrediting practice. The principle laid down was that the only party who personally knows the whole circumstances of the case which can dispel the suspicions attached to such case should appear as witness, because the story can be subjected in all particulars to cross-examination. Here, Ranomal, manager, was fully conversant with the affairs of the property' owned by the respondent-landlord and even by the stand taken by the tenant himself it was Ranomal who was responsible for the proper collection of rent etc. The second point taken by the learned counsel for the appellant is that the rent deed itself condoned the delay for two months. The fact that default in the payment of rent for the months of February, March and April, was committed is not denied. In support of the contention raised by the learned counsel reliance is placed upon the last part of the rent-deed, which in fact is a racitation of the undertakings given by the tenant and accepted to by the landlord. This part of the rent agreement reads as follows :- "In case of making default to pay the rent of two consecutive months the claimants shall have a power to get the premises vacated through legal proceedings." There is no doubt that this clause allows a grace period of two months to the tenant/appellant. But the tenant failed to pay or tender rent even within this grace period. According to the terms of the agreement the tenant was liable to pay the rent on 1st of each month 'without being asked for it'. The rent for the months of February, March and April was not paid or tendered till 15th May, 1967. Even if this grace period was allowed the tenant was in clear default so far as the rent for the month of February, 1967 is concerned. The final argument put forward by the learned counsel for the appellant is that it is a fit case in which discretion should have been used in favour of the tenant. The facts relied upon in this connection are that the tenant had sent the rent by money order on 15th of May, 1967, and as the learned Rent Controller has found that the rent application was filed on the same day this fact should be considered as proper tender of rent by the tenant-appellant. In the first place the rent application was filed on 13th May, 1967, and the observation of the learned Rent Controller in this connection is not supported by the facts on record. The endorsement of office on the application itself indicates that it was filed on the 13th of May, 1967, and not on 15th May, 1967. Secondly, there is an admission by the tenant-appellant in cross- examination that when on 13th May, 1967, he approached the landlord for tender of rent he was told that ejectment proceedings had been filed by the landlord and, therefore, the rent could not be accepted. Thirdly, the tender of rent beyond the date when it was due does not wash out the default committed by the tenant. As observed earlier, the tenant was in clear default so far as the rent for the month of February was concerned. This tender, even if considered proper, could not have helped the tenant. In view of the fact that default in the payment of rent is proved and no circumstance has been put forward to indicate that such a default was due to causes beyond the control of the tenant, I find no force in the appeal and dismiss it with costs. The tenant shall place the landlord in possession of the premises in dispute within a period of four months, and in the meantime he shall continue to pay the rent as before failing which he shall be liable to be ejected forthwith. S. A. H. Appeal dismissed.