1994 PLP 2248 (MLD)

By this first rent appeal the order, dated 28th March, 1983 of XIIth Senior Civil Judge and Rent Controller, Karachi, has been challenged.

2. Appellant, Feroze-ud-Din, fled Rent Case No. 3787/76 under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) against the appellant on the ground of default in payment of rent for the period of four months from May, 1976 to August, 1976 amounting to Rs.1,

600. In Written Statement the default has been denied and stated that the rent was being regularly paid through cheques but no receipts were issued for the months of March, April, May and June, 1976. It is stated that cheques were not presented by the respondent for encashment, therefore, no wilful default has been committed.

3. Appellant examined his rent collector, Abdul Majid, whereas opponent examined himself and-in support examined Khalil Ahmed and Shafiq Ahmed. There is only one issue of default which has been decided against the appellant thereby his rent case was dismissed.

4. I have heard Mr. Rehmat Ellahi for the appellant. It is contended by the learned counsel that cheques were not handed over by the respondent to the appellant or his rent collector and all along the rent was paid in cash for which receipts were acknowledged. It is argued that even for the default of one month the tenant is liable to be evicted. He has referred to the cases reported in 1982 CLC 1789; 1972 SCMR 262; 1983 CLC 302 and PLD 1982 SC 465.

5. Mr. S. Inayat Ali, appearing for the respondent, argued that no default has been committed and the respondent is a tenant since 1971. He has argued that rent was tendered by cheques which were not presented by the appellant and that the accounts books were summoned which appellant deliberately did not produce as there were entries about the rents paid by the respondent from time to time. It is also contended that appellant has not examined himself otherwise the respondent could have chance to cross-examine him. It is argued that in view of case reported in 1985 CLC 937 the burden lies on the landlord to prove the default. In view of 1985 CLC 1392 evidence as a whole is to be considered.

6. Abdul Majeed, attorney of appellant, in his evidence stated that respondent is a defaulter and not paid the rent since May, 1976` to August, 1976 for 4 months till filing of ejectment application. He has also stated that he had been demanding the rent from the appellant but he failed to pay the same. He has denied to have collected any cheques from the appellant and that he used to issue receipts for the rent from time to time. He has denied to have received the letters dated 25-8-1976 and 17-9-1976.from the respondent.

7. On the other hand, one Khalil Ahmed and Shafiq Ahmed were examined on behalf of the respondent and they have stated that an amount of Rs.3,300 was paid as a deposit to the appellant at the time he rented out the premises. Shahid Hussain, respondent, has stated that appellant was directed to produce the cheques and the accounts books for the period commencing from 1-9-1971 till June, 1976 but he failed to produce the same. He has stated that appellant did not issue the receipts for the months of March, April, May and June, 1976.

8. The Rent Controller considering all these points decided that respondent has not committed default as alleged.

9. The default in payment of rent at the time of filing of rent case was alleged for four months from 1st May, 1976 to August, 1976. The rent case was filed on 10th September, 1976. Before filing of the rent case an amount of Rs.2,800 was deposited by the respondent in Miscellaneous Rent Application on 24-8-1976 pertaining to the rent from March, 1976 to January, 1977 at the rate of Rs.400 per month and also was informed the respondent by letter dated 17-9-1976 when he came to know that rent case has been filed. The appellant has denied to have received this letter but fact is that Rs.2,800 were deposited in Misc. Rent Application which has not been denied by the appellant. A copy of letter dated 25th August addressed to the appellant has also been produced though denied to have been received. In this letter appellant was informed that his Munshi collected the cheques for the months of March till June, 1976 but no valid receipt was given and that when he came to tender the rent for the month of July, 1976, you refused to accept it. On enquiry from the bank he came to know that cheques were not presented for encashment. H;., therefore, filed Miscellaneous Rent Application 3545/76 in the Court of IIIrd Rent Controller, Karachi, and after obtaining the order deposited Rs.2,800 vide Receipt No.9375, dated 24th August, 1976 an:? this amount pertains to the rent for the months of March, April, May, June, July, August and September, 1976.

10. I am of the view that this argument has a force as rent was tendered before filing of the rent case and matter was a controversial one. The appellant has not mentioned this fact in his rent application but filed rent case on the grounds of default in payment of rent for four months.

11. The appellant is a tenant and residing in the flat since 1971 and there is no allegation against him for any irregular payment in respect of the rent. The number of cheques and particulars are given by the appellant and such plea was taken in the written statement and evidence has been led by the parties.

12. I am of the view that respondent has not committed wilful default in payment of rent and he went and tried to tender the rent and on the refusal of the appellant to accept the rent he deposited in the miscellaneous rent case. There is no written agreement, therefore, rent of May, 1976 was due on 1-8-1976 whereas rent of June, July, August 1976 was due on 1-9-1976, 1-10-1976 and 1-11-1976, therefore, default even otherwise is for one month i.e. of May, 1976 as on 25-8-1976 Rs.2,800 were deposited in miscellaneous rent application as precaution. This amount was deposited before filing of rent case.

13. Moreover, the appellant failed to produce the record in respect of payment of rent and deposit which fact has also been taken into consideration. Mad he produced the record which normally is available with the landlord, the matter would have been more clear. The Rent Controller has rightly exercised the discretion in favour of the respondent. The appeal is dismissed with no order as to costs. H.B.T./S-1079/K Appeal dismissed.