1986 PLP 1602 (MLD)

‑‑‑Ss. 15(2)(ii) a 21(1)‑‑Default in payment of rent‑‑Proof‑‑Evidence on record clearly showed that in absence of landlord his nephew used to collect rent of premises on his behalf‑‑Rent of two months tendered by tenant through money order before filing of rent case also admittedly was received by' landlord's wife and was accepted by landlord without any protest‑‑Service of notice on tenant before institution of rent case demanding arrears of rent had not been proved by landlord‑‑Finding of Rent Controller that tenant had committed default in payment of rent without taking into consideration admitted facts on record, held, could not be sustained‑‑Ejectment order on ground of default was set aside in circumstances. G.P. Shaikh for Appellant. A. Iqbal Quadri for Respondent. Date of hearing: ,13th October, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance of 1979 is filed by the tenant/ appellant against order of Rent Controller, dated 22‑11‑1982 passed in Rent Case No.709 of 1980, directing ejectment of the appellant from the premises occupied by him on the ground of default in payment of rent. The respondent instituted rent case on the allegation that the appellant has failed to pay rent from October 1977. The rent application was filed in February, 1980 and, therefore, on the date of the filing of the application the rent due against the appellant was for the months of October, 1977 to January, 1980. The appellant in his written statement denied the default and stated that the respondent is not issuing any receipt for the rent recovered by him. He also stated that as the respondent remained most of the time out of Karachi, he used to collect rent through his nephew's wife Hafiza or Mst. Hakim Zadi wife of the respondent. The appellant further asserted in the written statement that his wife used to payment of the premises to the wife or respondent's nephew but in the month of December; 1979 the rent collectors of respondents refused to accept the rent and demanded .increased rent of Rs.75 .therefore, the appellant sent the rent for December, 1979 by money order. But again remitted one month's rent in January, 1980 by money order. However, as he did not receive back the coupon of above money order he started depositing rent in Miscellaneous Rent Application No.467 of 1980. It was accordingly contended that there was no default in payment of rent. The applicant /respondent in support of his case examined himself and in his affidavit he stated that rent was due against the appellant from October, 1977.He also stated that the rent for 2 months for November, 1979 and January, 1980 was sent by the appellant through money order and, therefore, arrears against him on 2‑2‑1980 stood at Rs.1,

560. He denied the allegations that the opponent paid rent to applicant upto March, 1980. In cross‑examination respondent admitted that the premises was let out for about 8 to 10 years back. He further stated that his nephew Muhammad Hussain used to receive rent of this premises but Mst. Hafiza never collected rent on his behalf. He stated that he used to issue rent receipts to appellant but did not retain any counterfoils as these receipts were issued on plain paper. He further stated that in his absence his nephew Muhammad Hussain whenever received the rent, passed receipt to appellant. He admitted that occasionally he remained out of Karachi. He also admitted that the rent tendered by the appellant through money order was accepted by his wife and this tender of rent was before the filing of the rent case. He also stated in cross‑examination that he had served a written notice demanding arrears of rent on the appellant but failed to produce the copy of notice. He also admitted that he did not obtain signature of appellant on the copy of that notice. He denied the suggestion that he was not issuing any rent receipt and that he had received rent upto October, 1979. It is clear from the cross‑examination of the respondent that rent of the premises in his absence used to be recovered by his nephew Muhammad Hussain. It is also admitted by respondent that 2 months rent was tendered by the appellant before institution of the rent case by money orders which was accepted by his wife. The appellant in his evidence stated that he tendered rent for December, 1979 in rite December, 1979 and January, 1980 rent in January, 1980 which was accepted by, the wife of respondent. This part of the statement of appellant was not disputed in cross‑examination. The respondent in cross‑examination though claimed that he had given a written notice to appellant demanding arrears of rent but he admitted that he had not obtained his signature on the copy of that notice and he also failed to produce copy of the same in Court. Appellant in his evidence stated that he used to pay rent through Hafiza wife of Muhammad Hussain and Hakim Zadi wife of the applicant through his wife as the applicant is not personally residing at Karachi. The appellant also examined his wife Mst. Munni Bibi who supported the statement of appellant. From the evidence produced before the Rent Controller it is clear that before the institution of the rent case, the appellant had tendered 2 months rent for December, 1979 and January, 1980, which was accepted by the wife of the respondent. There is nothing on record to show that there was any protest either by the respondent or his wife that the rent tendered by the appellant in December, 1979 and January, 1980 did not relate to those months. It is significant that the respondent claimed that he had served a written notice on the appellant before institution of the rent case demanding arrears of rent but the copy of that notice was never produced. The respondent also failed to examine his nephew Muhammad Hussain, who according to the statement of appellant used to recover rent of the premises on behalf of respondent. In these circumstances, the preponderance of evidence clearly supports the stand taken by the appellant, which also find support from the conduct of appellant. The Rent Controller while holding that tenant has committed default in payment of rent did not consider these facts at all. I accordingly accept the appeal, and set aside the order of Rent Controller. The application filed by the respondent for ejectment of appellant on the ground of default in payment of rent accordingly of appellant on the ground of default in payment of rent accordingly stands dismissed. There will, however, be no order as to costs. H.B.T. Appeal accepted.