1989 PLP 1773 (MLD)

Date of hearing: 28th February, 1989. Appellant Abdul Majeed has called in question an order dated 22-5-1986 passed by the VIIIth Senior Civil Judge and Rent Controller Karachi (South) in Rent Application No. 1762 of 1982 ordering ejectment of the appellant from the premises in litigation bearing No. 11 of Plot No. LY. 28/11, Fakir Mohammad Dura Khan Road, Karachi. .

2. In the pleadings, the parties admitted relationship of landlord and tenant. Respondent Osman Ghani filed said Rent Application for eviction of the appellant from the said premises on two grounds: viz. (i) default in payment of rent and (ii) personal bona fide need. Appellant opposed the application and filed written statement in which both the grounds were controverted. After taking down evidence, the trial Court found both the grounds proved, under the impugned order, by which ejectment of the appellant was ordered.

3. I have hard Mr. MA. Latif Qureshi, Advocate for the appellant and Mr. Mehar Hussain, Counsel for the Respondent.

4. Learned counsel for the respondent took legal objection that this appeal is time-barred as it was filed on 1-12-1986 after a period of six months of the impugned order. The impugned order was passed on 22-5-1986 but its copy was supplied to the appellant on 29-11-1986 although he applied for the same on 29-5 1986. The appeal was filed after 192 days of the impugned order but if 184 days spent in obtaining copy of the impugned order are deducted from said period, then the appeal would appear to have been filed within time. Hence the legal objection about bar of limitation is overruled.

5. On default ground, the respondent alleged in para. 2 of his rent application that the appellant had failed and neglected to pay rent from February, 1981. Case of the appellant as per the written statement was, that monthly rent was being collected every month by the respondent personally and 'that rent was paid to the appellant for the period upto January, 1981. That rent for February 1981 was demanded at the enhanced rate and it was refused at that rate. In this way it is clear from the pleadings, that rent for February, 1981 onwards has not been paid However it is to be determined if non-payment of the rent was intentional by the appellant or it was due to unreasonable attitude of the respondent, thus beyond control of the appellant. In other words it is to be determined if there was wilful default in payment of rent. Explanation furnished by the appellant in tiara. 2 of his written statement was, that the respondent during his visit at the disputed premises in February, 1981, demanded rent illegally and unilaterally at the enhanced rent of Rs. 40 per month with threats of dire consequences. That the demand being unjustified, unreasonable and illegal, was refused and the rent was offered (for February, 1981) at the usual rate of Rs. 20, which offer was refused by the respondent, who left the premises in threatening posture. This stand of the appellant taken in the written statement required to be substantiated. In his evidence appellant filed his own affidavit, where in he denied having defaulted in payment of rent since February, 1981. He said that it was the regular practise of the respondent to visit the premises and collect monthly rent personally. That the respondent visited him as usual to collect rent for February, 1981 but demanded rent at an enhanced rate of Rs. 40 p.m. which demand was unjustifiable, unreasonable and illegal and hence refused. Appellant further stated that .in view of such attitude of the respondent, the rent for February. 1981 was sent to him by money order which was refused and then the rent was deposited in Misc. Rent Case No. 1938/88. In his cross-examination the appellant stated that he was not in possession of the postal receipt regarding sending of the money order to the respondent. That he deposited the rent in the Court in second month of 1981. He produced a rent receipt Exh. No. 0/1 about the deposit of rent in Court. The appellant admitted that he did not give any notice to the respondent regarding demand of enhanced rent. Respondent Usman Ghani in his cross-examination admitted that he had sent a notice to the appellant to increase the rent to the extent of 10%. That the appellant promised to settle the matter by private "FAISLA" but he did not increase the rent. Respondent admitted that he used to got to the appellant's house to collect the rent. He further admitted that he did not go to the appellant to recover the rent as he needed the premises for personal use. He denied if rent came to him by money order and he refused to receive it. Although the respondent did not come to the appellant to collect rent but legally it was incumbent upon the tenant to tender monthly rent to the landlord. In the case of Mohammad Ally Ahmed v. Abdul Hameed (1987 C L C 492) the view taken was that it was the duty of every tenant to tender monthly rent to the landlord. A learned Single Judge of this Court Mr. Justice Dorab Patel (as he then was) took view in the case of Mohammed Alimullah (PLD 1973 Karachi 56) that a tenant is protected from eviction only as long as he is ready and willing to pay rent and the discharge of this statutory obligation by the tenant, is a condition of his protection and he can invoke discretion under Section 13 of the W.P. Urban Rent Restriction Ordinance only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances .as would have prevented a reasonable man from discharging his obligations. It was further observed in the cited case that the Rent Ordinance imposes an obligation on the tenant to pay rent at the end of every month. In the case of Ashrafuddin v. Sabir Hussain (1973 S C M R 309) it was held that the liability to pay or tender the rent due remains with the tenant, irrespective of the higher amount demanded by the, landlord. In the circumstances the appellant cannot evade the liability of paying the rent due, if there was demand of excessive rent. Non-production of the money order in Court raises a presumption that the oral evidence about having sent rent for February, 1981 by money order to the respondent is devoid of truth. In the circumstances the issue of default stood proved and finding of the trial Court on this point is maintained. In respect of the ground of personal bona fide use the respondent said in his affidavit that he was living in a rented house and was given a notice of ejectment by his landlord and hence he required the premises in litigation. In his cross-examination the respondent admitted that he was married and had two children and that the house occupied by him had two rooms. The appellant said in his affidavit that the respondent was moved by ulterior motives to acquire monetary gains by disturbing him and by disturbing other tenants in the building lie added that the premises in possession of the respondent was suit-able for hi; needs. It was argued on behalf of the appellant that the accommodation in his possession consisted of a small room, with no bath room or latrine. There is nothing on record to prove this. Respondent produced in evidence a notice received by him to vacate the house occupied by him' as tenant. He also filed affidavit of Mohammad Altaf son of hic, landlady to support the notice of eviction. In the circumstances the personal bona fide requirement of the respondent for the premises in litigation stood proved. Thus finding of the trial, Court on this point is maintained. Consequently the impugned order is maintained and the appeal stands dismissed with costs. M.Y.H./A-565/K Appeal dismissed.