1986 PLP 726, (CLC)

2. The facts of the case in brief are, that the appellant is the tenant of the respondent in respect of IInd floor of the building on plot No. 2/53‑B, Block 2, P.E.C.H.S., Karachi, on a monthly rent of Rs. 200 plus water and conservancy charges. The appellant wilfully failed and neglected to pay the rent in respect of the said premises rom August, 1978, and also failed to pay the water and conservancy charges from 1974. The respondent also claims, that she requires the premises for the personal use of her son, and therefore, she filed rent application for the ejectment of the appellant. The appellant in his written‑‑statement denied to have committed any default in payment of e rent or payment of the water and conservancy charges. He claims to have paid the rent upto September 1980, for which he obtained receipts from the respondent and he also paid the share of the water and conservancy charges for which no receipt was given to him by the respondent He also denies, that the premises are required for personal bona fide use of the respondent on her son in good faith.

3. On the pleadings of the parties the learned Rent Controller of framed the following issues:‑

(1) Whether the opponent has committed default in payment of rent and conservancy charges? (2) Whether the applicant requires the premises in good faith for the use of her son? . (3) What should the order be': Learned; Rent Controller decided the first two issues in favour of the respondent and on issue No.3, ordered the ejectment of the appellant. Hence this appeal.

4. I have heard the learned counsels for the parties at length, and also perused the record and proceedings of the trial Court.

5. The learned counsel for the appellant, Mr. Ameer Ahmed Khan, hay relied upon the receipts produced by the appellant, which are exhibited 2/1 to 2/3 to show, that the rent was paid by the appellant uptil September, 1980. The signatures on the receipts were denied by the respondent, and at the request of the appellant, the same were sent to the Handwriting Expert. As Handwriting Expert took too much time to give his opinion, the learned Rent Controller himself compared the signatures on these three receipts, with the signatures of the respondent on receipts, which are exhibits 1/4 to 1/15, on which signature of the respondent are admitted. The learned Rent Controller came to the conclusion, that the handwriting on receipts exhibited to 1/15, and those on Exhs. 2/1 to 2/3 appears to have been written by the same hand. The signatures of both the groups of receipts tallied with one another, therefore, he held, that the rent of the premises stood paid upto September 1980. The learned Rent Controller was of the opinion, that these three receipts showed, that the appellant has not been paying the rent month to month in accordance with the rent‑agreement, or if rent‑agreement had expired in accordance with till‑ fixed under the relevant law but was paying in lumpsum for seven or eight months. He, therefore, opined, that the appellant has been consistently committed default in payment of rent of these months, which he had paid after due date.

6. On the other hand, it is contended by the learned counsel for the appellant, that once having accepted rent even after commission of default, the respondent would be deemed to have waived her right that accrued to her because of default by the appellant and now is estopped from claiming eviction on the ground of default. The last receipt which Exh. 2/3 is dated 9th September, 1980, shows, that she accepted the rent even after the ejectment application was filed on 8‑9‑1980.

7. Mrs. Rasheeda Patel, learned counsel for the respondent hay argued, that even the date of last receipt itself belies the contentions of the appellant, that these receipts are signed by the respondent, because respondent could not have accepted the rent from the appellant after filing ejectment application claiming eviction on the ground of default.

8. The receipt, Exh. 2/1, shows the payment of rent from August, 1978 to May, 1979 on 9‑8‑1979. Receipt, Exh. 2/2, shows payment of rent from June, 1979 to April, 1980 on 5‑4‑1980. The receipt, Exh. 2/3, shows payment of rent from May, 1980 to September, 1980 on 9‑9‑1980. According to the agreement of tenancy entered into by the parties, the rent had to be paid on third of each month in advance. This agreement was to commence from 8‑6‑1972. It does not disclose as to for what period this agreement was in force, but it provides, that it can be terminated after one month's notice by either party to the agreement. This agreement is not registered, therefore, it will be valid only for eleven months, as any tenancy agreement for 12 months or more would require compulsory registration. This agreement, therefore, would not be deemed to be in force, when the alleged default was committed. The relation between the parties would be governed by the relevant law which would be Sind Rented Premises Ordinance, 1979. Under section 10(1) of the said Ordinance, in the absence of any date fixed by mutual agreement, the rent shall be paid not later than the 10th of the next following month for which it is due. Under section 15(2)(ii) "the Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that the tenant has failed to pay rest in respect of the premises in his possession within 15 days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of rent or in the absence of such agreement within sixty days after the rent has become due for payment." Even according to the receipts produced by the appellant which are Exhs. 2/1 to 2/3, he did not pay the rent of the premises from August, 1978 till the application for ejectment was filed either in accordance with the agreement or in accordance with the law. The rent for the months of August, 1978 to April, 1979, was not paid within due dates. Similarly, the rents for the months of June, 1979 to August, 1979, were also not paid within due dates. The rent from May, 1980 to August, 1980, was admittedly not paid before the application for ejectment was filed. The learned Advocate for the appellant has not been able to show any law, that acceptance of the rent by the landlady after the due date, would save the tenant from the consequences of the default p in accordance with law. The law on this point is laid down by the Supreme Court of Pakistan in the case of Abdul Rasheed v. Saleh Muh.4mmad reported in 1980 S C M R 506 is very clear. In the above case their Lordships have observed as follows:‑

"The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collect it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre‑occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having deliberate non‑payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."

9. This decision has been followed by a Single Bench of this Court in the case of Aba Hussain v. Mehrunnissa reported in 1985 C L C 2109. It is held therein, "that the admission of the tenant that he used to pay rent after intervals of four to six months was by itself is sufficient to prove, that he was a defaulter. Even if it is admitted, that the landlady had tolerated and accepted the rent at intervals of four to six months, it would not absolve the tenant of his responsibility of paying rent each month."

10. I have already pointed, that the landlady as well as her son have denied the fact, that the receipts, Exhs. 2/1 to 2/3, bear the signature of the respondent or they have received any rent for the month shown in the receipts. The learned Rent Controller at the request and cost of appellant had sent the receipts, Exhs. 2/1 to 2/3, to the Handwriting, Expert for the comparison of signature on the receipts Witt the admitted signatures of the respondent. It would have been more proper and fair to the parties, if the learned Rent Controller should have awaited the receipt of opinion of Handwriting Expert, and should have examined him, instead of taking upon himself the task of comparing the signatures. He had enough powers to compel the attendance of the Handwriting Expert, if he was of opinion, that the Handwriting Expert was adopting delaying tactics. The order‑sheet shows, that the order to send the documents to the Handwriting Expert was passed on l3-9‑1984, whereas the Judgment was announced on 7‑11‑1984. Therefore; it cannot be said that the Handwriting Expert took too much time to send his opinion.

11. The learned Rent Controller came to the conclusion, that the appellant has not paid the water and conservancy charges because he could not produce any receipt to show the payment of water and conservancy charges. It is observed by the learned Rent Controller and I think he is right in his observation, that the appellant, who was careful enough to obtain receipts when he paid the rent, would have also obtained the receipts for payment of the water and conservancy charges. This observation looks more plausible, specially in view o1 the clause in writing in the agreement, that the water anti conservancy charges would be paid by the tenant. The appellant allege to have paid the water and conservancy charges to P.W. Najeeb son of respondent, but Najeeb, who has been examined has denied to have received such payments. The respondent has also denied the receipt of the water and conservancy charges. The learned counsel for the appellant has pointed to a sentence in para. 3 of the rent application that the appellant has failed to pay the charges from June, 1978. The learned counsel for the respondent has argued, that this was a clerical error but in fact the respondent has failed to pay the water and conservancy charges from 1974 and the details of the arrears are specifically shown year-wise clearly in para. 4 of the rent application, and so also total amount due as arrears of water and conservancy charges There appears to be only word of the appellant, regarding the payment of the water and conservancy charges, as against the word of respondent and her son, who do not admit to have received the same. The burden of proof of the payment was upon the appellant. In the absence of any receipt, he cannot be said to have discharged the burden of proof.

12. Be that as it may, whether the receipts, Exhs. 2/1 to 2/3, are signed by the respondent or not, whether the tenancy agreement is still in operation or the relation between the parties is governed by the relevant law, the appellant is a defaulter on his own admission as discussed above. Under the circumstances, I see no reason to interfere with the findings of the learned Rent Controller on Issue No.l, that appellant has committed default in payment of rent as well as water and conservancy charges.

13. It is a settled law, that onus lies heavily on the landlord to prove, that he requires the premises in good faith for bona fide use of the landlord or for her children. Admittedly, the respondent is living with her son, three daughters and one niece in a rented house in P. E. C.H.S., Karachi. It is also admitted fact, that during the pendency of these proceedings, ground floor in the building, in which the demised premises are situated on the second floor, was vacated, but it has not been occupied by the respondent as yet.

14. It was argued by the learned counsel for the appellant, that the house which has been vacated was not be sufficient for the family of the respondent. It was further argued, that the respondent alongwith her daughters and niece, who are all ladies, cannot shift to the vacated premises, unless their only male member, Najeeb son of respondent, also gets the premises vacated to live in the same building. Admittedly, at present P.W., Najeeb is staying with his mother and sisters. It is also stated during the course of arguments, that the rented house presently occupied by the respondent, is a two‑roomed house, whereas the premises which have been vacated has four rooms. Therefore, the vacated premises are quite sufficient and the respondent could have shifted alongwith P.W., Najeeb, who is staying with his mother and sisters in the rented house. There is no reason, as to why he could not stay with them in the vacated premises, till decision of this appeal or till he gets demised premises vacated. Only reason, as to why P.W., Najeeb wants to live separately from his mother and sisters is, that he wants to marry and live independently. The respondent has so stated in her application as well as in her statement before the Rent Controller. Strangely, P.W., Najeeb, who has also been examined, does not state that he wants to live separately because he wants to marry or that he is married. Under the circumstances, this ground also looks suspicious. In the application the applicant has stated, that she wants premises for the personal use of her son. She has not stated, that she require the premises for her personal use. If it be so, and even if her son wants to live independently, his needs now stand satisfied after the vacation of the premises on the ground‑floor. Under the, circumstances, in my opinion, the respondent has not proved her case, that she requires the premises in good faith for the bona fide use of her son. The findings of the learned Rent Controller on the issue is hereby reversed.

15. However, in view of the findings of this Court, that appellant has committed default in payment of rent as well as water and conservancy charges, the order of the Rent Controller ordering the ejectment of the appellant is upheld and appeal is dismissed to that extent. The appellant is directed to hand over peaceful possession of the premises to the respondent within three months by this judgment. H.B.T. Appeal dismissed.