1986 PLP 1481 (CLC)

Muhammad Yousaf's case P L D 1980 S C 298 and P L D 1984 S C 17 ref. Khurshid Ahmad Qureshi for Appellant. Nooruddin N. Ramzan for Respondent. Dates of hearing: 18th and 19th August, 1985. Under the agreement of tenancy dated 28‑5‑1978 premises No.341, B‑Block, 13 Federal 'B' Area, Karachi was leased out to the appellant for a term of months w.e.f. Ist June, 1978. After the expiry of the agreement, the appellant paid rent upto the month of July, and continued to be the tenant. The respondent filed ejectment application on the grounds of default in payment of rent for the month of August, September and October, 1979, subletting and that the premises is required bona fide for the family of his son Gule Riaz Hyder Naqvi who is the owner of the said premises. The appellant filed written statement denying that default has beer. committed. He pleaded that he has paid the rent for the month of August, but no receipt was issued. He further pleaded that he had offered the rent for September, but it was not accepted, and therefore, he sent a money order on 27‑10‑1979 towards the rent of September, but it was refused, and finally he started depositing rent in Court from 12‑11‑1979. He also denied that the premises is bona fide required by the respondent. The learned Controller held that the respondent does not require the premises bona fide for the use and occupation of the family of his son, but granted ejectment on the ground of default in payment of rent for the month of August. The finding on issue relating to subletting was in the negative. Mr. Khursheed Ahmad Qureshi, the learned counsel for the appellant has contended that the evidence on record has not been correctly appreciated by the Controller. According to him after the expiry of the agreement on 31‑5‑1979, the appellant became the statutory tenant and paid the rent for the month of August. In the face of the pleading the burden is entirely on the appellant to establish that the rent for the month of August was paid by him. Besides his statement the appellant examined one Mohammad Aslam, but he has not stated a word about the payment of rent. His statement is restricted to the issue relating to subletting which has not been believed by the Controller, therefore, there remains the statement of the appellant himself and the statement of the respondent on this issue. The dispute relates to only rent for the month of August, 1979. The appellant has alleged and pleaded in the written statement that in the month of August, 1979, the respondent wanted to increase the rent to Rs.200 to which he did not agree and when the rent for the month of August was paid no receipt was issued. These facts clearly establish that from the month of August when the rent had not been paid the dispute between the parties had started. If in this background the respondent had not issued a receipt for payment of rent the normal course of conduct would be to at least demand the receipt or serve a notice demanding the receipt. Nothing has been shown by the appellant to establish such facts. Again the money order was remitted specifically for the month of September. On the money order coupon the appellant has put a note but has not made any reference to the payment of rent for the month of August and respondent's failure to send the receipt. This lapse on the part of the appellant is an additional circumstance which does not justify the conclusion that the appellant had paid the rent for the month of August. No other evidence has been produced to establish the payment of rent, and therefore, the finding of the learned Controller cannot be disturbed. The learned counsel for the appellant then contended that under the agreement the appellant had disposited Rs.5,000 with the respondent which has remained with him after the expiry of the lease and should have been adjusted towards the rent and once such adjustment is granted, there would be no question of any default; on the contrary the respondent would be indebted to a considerable amount. In this regard the learned counsel has referred to Mohammad Yousuf s case PLD 1980 S C

298. Mr. Nooruddin Ramzan the learned counsel for .the respondent contended that this plea was not raised by the appellant in the written statement nor any question was asked from the respondent in the cross-examination. The appellant has also not taken this plea in the affidavit of evidence. In the circumstances, the learned counsel contended that this plea may not be allowed to be raised at this stage. He has referred to P L D 1984 S C 17 where such a plea of adjustment was not allowed to be raised for the first time before the Supreme Court. A party is entitled to raise a plea in the first appeal which may be legal in nature and does not require any evidence for its determination. But where any plea raised for the first time in appeal requires determination of certain facts then unless the memo. of appeal is amended and/or additional evidence recorded it may not be possible to agitate such plea. From the agreement it is not clear that Rs.5,000 were paid to the respondent. The relevant clause of the agreement reads as follows: "That the lessee will pay to the Lessor Rs.5,000 (Rupees five thousand only) as deposit which will be refunded to him after his handing over the vacant possession of the premise to the lessor, after deducting the cost of any damages to the sittings and fixtures and other such dues as outstanding, water, Gas and electricity bills." This clause clearly states that lessee i.e. the appellant will pay to the respondent, Rs.5,000 as deposit. No evidence has been produced to show that this amount has been paid. Again this amount is refundable after adjustment and deduction towards cost of any damages to the fittings, fixture and other outstanding dues. After deducting such amount the balance would be payable at the time of vacating the premises. It is not known whether the appellant has caused any damage and is liable to compensation for that, nor it has been brought on record that there are any outstanding dues towards water, gas and electricity bills. In these circumstances it is not possible to permit the respondent to raise this plea and take advantage of a clause in the agreement which requires determination of several facts. Mohammad Yousuf's case is distinguishable on facts as there, it was admitted that security deposit was lying with the landlord and no dues were to be deducted from it. In view of these facts I am not inclined to permit the appellant to raise this plea or to allow adjustment from the alleged deposit. The appeal is dismissed. The appellant is granted three months time to vacate and hand over vacant possession of the disputed premises to the respondent. H . B. T . Appeal dismissed.