1989 PLP 4347 (MLD)

Umar Quraishi for Respondent. Date of hearing: 5th March, 1989. Respondent Mst. Shafique Begum had sought the ejectment of the appellant on three grounds. First, that the appellant was very irregular in payment of rent since the very inception of tenancy and in proof of irregular payments she filed three rent receipts Annexures `A', `B' and `C' and that since April 1980 he had not paid rent till the date of tiling of the ejectment petition (6-5-1982). The respondent further alleged that she had to institute distress warrant proceedings in 1981 for the recovery of rent but had to abandon the same because the tenant could not be served. Second, that the respondent/landlady was suffering from heart trouble for six years prior to the filing of the ejectment petition and she had been advised to shift to the ground floor and stated that at the moment she was residing on the first floor. Third, that the appellant/tenant had impaired and was impairing the utility and the value of the premises by keeping them vacant and locked, as there were chances that some stranger may trespass into the premises and may damage them or even occupy them. In his written statement the appellant/tenant claimed that he had paid a sum of Rs.50,000 to the respondent at the time of commencement of tenancy and a written agreement was executed on 1-8-1973. According to him, the rate of rent as per rent agreement was Rs.55 per month but it was increased from time to time and now it was Rs.80 per month. He, however, did not file rent agreement or its copy with his written statement. As for default, it was stated that the rent used to be collected by the rent collector of the landlady and this the rent collector did at his convenience and there was no fixed time for payment of rent and this practice was being followed from inception of the tenancy. It was specifically denied that rent had not been paid since April 1980 and it was asserted that rent had been paid upto August 1982 and thereafter the rent collector did not come to collect the rent whereupon the respondent/tenant personally went to the landlady and offered the rent but the landlady refused to receive it and demanded enhanced rent whereupon the respondent sent the rent by money order dated 24th October, 1982 for 4 months (from September 1982 to December 1982), but this money order was not accepted by the landlady. The respondent further stated that he again remitted the rent for five months for the period from September 1982 to January 1983 but this money order was also refused and since then he was depositing rent in Court in Miscellaneous Application No. 46 of 1983. As for leaving the flat vacant, the respondent denied the allegation. Illness of the respondent/landlady was also denied and it was stated that she did not bona fide require the premises in dispute for her own use and occupation. Learned Rent Controller did not frame any .issue in respect of the allegation that the appellant/tenant had vacated the premises and had moved to some other place and was keeping the demised premises vacant and was thus impairing their value and utility. Since no objection to this effect was raised by the respondent/landlady and the learned Rent Controller was not asked to frame a issue on this point, I would conclude that respondent/landlady had abandond this ground. Issues framed in respect of default in payment of rent and personal bona fide requirement of the landlady were both decided by the learned Rent Controller in the affirmative and in favour of the respondent/landlady and the appellant was directed to vacate the premises. Hence this appeal.

2. I am of the view that the respondent/landlady has failed to prove that she required the demised premises bona fide for her own use and occupation. She filed her affidavit-in-evidence but did not submit herself for cross-examination. I am not impressed by the explanation that she was coming on every date of hearing but the case did not proceed for one reason or the other and that when the case did proceed finally she was not present because of her old age and illness. The affidavit of the respondent/landlady having thus been removed from the evidence, we are left with the affidavit-in-evidence of her attorney, Salahuddin Abdali, and of one Qutbuddin. The latter did not say anything whatsoever so far as the personal requirements of the respondent are concerned. This leaves only Salahuddin Abdali, the attorney of the respondent. He has also not said anything on the point except stating in para. 2 of his affidavit that ejectment application itself may be treated as part of his affidavit. This sort of evidence leads us nowhere. The respondent has filed photostat copy of a discharge certificate dated 29-10-1975 (Annexure `D') showing that the respondent was admitted in the Jinnah Post-Graduate Medical Centre on 15-10-1975 and was discharged therefrom on 29-10-1975. This discharge certificate is of no help to the respondent because it pertains to the year 1975 and has nothing to do with her present state of health. Annexure `E' is an out-patient chit of the same hospital and it is dated 10-9-1978. This out-patient chit shows that the respondent was suffering from certain ailments but it does not show that her ailments were such as to require her to shift from her first floor residence to ground floor. Besides, it also pertains to a very old period. As a matter of fact, both these documents arc not "Medical Certificates". Thus, there is neither any oral evidence or any documentary evidence to sustain affirmative findings of learned Rent Controller on the point of personal requirements of the respondent. Learned Rent Controller has seriously erred in relying upon the discharge-slip and the out patient slip Annexures `D' and `E'. I would, therefore, set aside the findings of learned Rent Controller under issue No. 2.

3. Issue No. 1 pertains to the allegation of default in the payment of rent from April 1980 till the filing of the ejectment application on 6-5-1982. Before proceeding to determine as to whether the appellant had or had not committed default as alleged, I would first deal with the dispute with regard to the incorrect recording of a sentence in the cross-examination of A.W. 2 Salahuddin Abdali, attorney of the respondent. The following sentence occurs in the cross- examination of Salahuddin Abdali "one receipt has been signed by me while the other receipts have not been signed by me". The cross-examination was recorded on 5-1-1985 and on 26-1-1985 the respondent/landlady had moved an application before the learned Rent Controller praying that Salahuddin Abdali may be recalled and re-examined because his evidence was wrongly recorded and that there were certain discrepancies which called for clarification. The application was rather ambiguous as it did not point out what portion of the cross- examination had been incorrectly recorded or what discrepancies necessitated clarification. The application was contested, as usual, and was rejected by the learned Rent Controller vide order dated 9-5-1985, written on the back of the application. The order is written in an illegible handwriting and it could not be satisfactorily read but the gist of it appears to be that the respondent/landlady wanted to fill in lacuna in her evidence and any incorrect recording of cross -examination should have been brought to the notice of the Court at that very moment. Now, it was argued by the learned counsel for the respondent/landlady that all that was desired through this application was that the abovequoted sentence, which had been incorrectly recorded, inasmuch as the witness had stated "one receipt has not been signed by me while the other receipts have been signed by me", should be corrected. In other words, his contention is that word "not" referred to one receipt and, therefore, it should have been placed in the earlier part of the sentence but by inadvertence it was placed in the latter part of the sentence with the result that the sentence gave a totally different version than the one intended by the witness. I am of the view that the correct procedure for the learned Rent Controller to follow under these circumstances was that he should have asked the respondent/landlady to specifically give the points which required clarification and if all that was desired by her was the correction of the above sentence then the witness should have been called for clarification of that point. After all, to err is human and a mistake like this can very easily crop in while recording the statement of a witness. Even so, I have examined this statement and have also considered the circumstances of the case. All the receipts except one pertain to the period prior to the alleged default and they were given on printed receipt-forms. Only one receipt differed from the rest of the receipts in two important respects. First, that it was not on the printed receipt form but on a plain paper. Second, that it bears a date subsequent to the filing of the ejectment application and, although it does not mention the period to which it pertains, it nevertheless purports to be in respect of the period for which default is alleged. It therefore appeals to reason that witness (the attorney of the respondent /landlady) had admitted his signatures on all the receipts except one. I would, therefore, read the above quoted sentence as follows:-- "One receipt has not been signed by me while the other receipts have been signed by me."

4. As noted above, default is alleged from April, 1980, upto 6-5-1982 the ejectment petition was filed. Receipts Exh. A/9 to Exh. A/22 pertain to the period 1975-1979 and are, therefore, not relevant for determining the default for the abovenoted period, We then come to last receipt Exh. A/23. Conceding for the sake of arguments that this is a genuine receipt and upto-date rent had been paid through it on 10-5-1982, it still follows that the appellant was defaulter for the period given in the ejectment petition. Rate of rent was admittedly Rs.80 per month and this receipt is for Rs.2,

160. This means -that this receipt represented the rent for 27 months. The receipt is dated 10-5-1982, which means that the rent tendered through this receipt pertained to the period February 1980 to April 1982. Thus, the appellant was a defaulter for 27 months when the ejectment petition was filed.

5. The execution of the receipt Exh. A.23 was denied by the attorney of the respondent/landlady and this denial has been mentioned by the learned Rent Controller in the impugned order. He has, however, not given his definite finding as to whether this receipt was forged or genuine and in this connection learned counsel for the appellant has referred me to 1986 M L D 1519 Idrees Ahmad v. Muhammad Shafiq Khan wherein it has been held that when forgery is alleged in respect of some document bearing upon the default of the tenant, then it is the duty of Rent Controller to decide conclusively as to whether the document in question is forged or otherwise and on the strength of this authority it was argued that the case might be remanded to the learned Rent Controller for the decision of this point and for fresh adjudication of the ejectment petition. I agree with the learned counsel for the appellant that learned Rent Controller should have given a definite and specific finding as to whether this receipt was genuine or forged but I do not agree with the learned counsel that the case should be remanded as suggested by him. This aspect can be decided in this appeal. I find that all the receipts from Exh. A/9 to Exh. A/22 were issued by the attorney of the respondent/landlady from printed receipt-book and it looks rather strange that only this receipt should have been issued on a plain paper. Secondly, the appellant admitted in his cross-examination that this receipt was written by him and the attorney of the respondent/landlady had only signed it. The question is as to why the receipt was written by the appellant and not by the attorney himself when he is a literate person. Thirdly, the receipt is dated 10-5-1982. By this date the ejectment petition had already been filed. It does not appeal to reason that the attorney of the respondent/landlady should receive the rent and execute the receipt only four or five days after the filing of the ejectment petition and should jeopardise ejectment petition. Besides, it was not filed with the written statement. I am, therefore, satisfied that receipt Exh. A/23 is a forged document and no rent was paid to the respondent/landlady through it.

6. On the strength of the receipt Exh. A/23, the appellant had claimed that upto date rent had been paid on 10-5-1982 and that there was a practice between the parties whereby the rent collector himself went to the appellant to collect the rent and this he did not regularly and every month, but after many months and collected the rent of many months together. Perhaps the receipts Exh. A/9 to -Exh. A/22 were brought on record to prove this practice. A perusal of these receipts shows that each of them pertains to a period of four or five months. Even if a practice to this effect is accepted, the appellant cannot be excused for not paying rent for 27 months. None of these receipts shows that there ever had been practice between the parties whereby rent for 27 months was collected by the respondent at one time. Therefore, while it may be said that there was a practice between the parties that cumulative rent for three or four months way paid at a time without any protest on the part of the landlady, the default for 27 months is not covered by such a practice.

7. Learned counsel for the appellant had referred me to 1988 C L C 1552 on the point of prevalent practice between the parties for the payment of accumulated rent after two or three months and it was held in this authority that if this practice is proved on record then the tenant cannot be accused of wilful default in the payment of rent. However, learned counsel for the respondent has referred me to 1984 C L C 2332 Syed Muhammad Ali v. Mst. Aisha in which it is held that tenant's plea that practice had developed between the parties for the collection of cumulative rent is of no avail in explaining the default. Another authority referred on the point is 1985 C L C 1941' Mst. Mariam Bai v. Mst. Mehrunnissa Begum. The facts of this authority are that the landlord used to collect rent after intervals of four to six months and it was held that such practice notwithstanding, the tenant could still not absolve himself from the responsibility of paying rent every month. I was then referred to a Supreme Court authority reported as P L D 1984 S C 32 Mrs. Alima Ahmad v. Amir Ali. The facts of the case of this authority are almost exactly the same as the facts of the present appeal. The tenant had pleaded a practice whereby the attorney of the landlord collected cumulated rents but the Full Bench of the Supreme Court observed that such practice was of no avail to the tenant and it did not explain default in the payment of rent. I am, therefore, of the considered opinion that the appellant cannot take the plea that the rent collector of the respondent/landlady usually collected rent after many months together because, firstly, this practice has not been established for the colossal period of 27 months and, secondly, that in view of the authorities just referred above, this plea is not available to the appellant.

8. I would, therefore, hold that the respondent/landlady had proved beyond doubt that the appellant was wilful defaulter for the period from April 1980 upto the date of the filing of the ejectment petition. Findings under issue No. 1 are, therefore, maintained with the result that the appeal is dismissed with costs. The appellant is granted two months time to put the petitioner into possession of premises. H.B.T./F-106/K Appeal dismissed.