P L D 1986 Karachi 344 (PLP)

These. are two First Rent Appeals in which the parties are same and only the tenements are different. F. R. A. No. 205/83 arises from Rent Case No. 3625/81 and the number of tenement is

19. F. R. A. No: 206/83 arises from Rent Case No. 3625/81 in which the number of tenement is

31. Tenant in respect of both these proceedings is Suleman and the landlord is Kareem. In both these cases impugned order of ejectment has been passed on 31‑1‑1983 by the learned XIVth Rent Controller, Karachi on the ground of default. Since parties are same and the evidence produced is same and plea taken by the parties is also same, I propose to dispose of both these appeals by this common judgment. Briefly stated the relevant facts giving rise to these appeals are that tenant Suleman is in occupation of tenement No. 19 at the rate of Rs. 52‑50 and tenement No. 31 at the rate of Rs. 10‑50 p. m. which are situated. in the same building owned by the landlord Karim. Landlord filed two ejectment cases Dearing Rent Case No. 3626/81 in respect of tenement No. 19 and Rent Case No. 3625/81 in respect of tenement No.

31. In Rent Case No. 3626/81 default was alleged from 1‑4‑1981 to 31‑7‑1981 for four months. In Rent Case No. 3625/81 default was alleged for the period from 1‑12‑1980 to 31.7‑1981 for 8 months. Plea was taken by the tenant in written statement that no default is committed by him and he continued paying rent to the landlord, who did not issue receipts for the periods of default alleged for the reason that he demanded enhanced rent and refused to issue receipts insisting on the tenant to pay up the balance between the rent demanded and the rent already paid which the tenant was not ready to do. In the evidence landlord Kareem filed his affidavit of evidence and was cross‑examined by the tenant. Similarly tenant Suleman produced his affidavit of evidence and alongwith it annexed nine rent receipts relating to other tenement showing that landlord in those cases had accepted enhanced rent. Tenant did not produce any receipt in respect of disputed tenements. It appears from the cross‑examination of the landlord that his brother Ghulam Abbas used to collect rent and issue receipts to the tenants. He has admitted that he has about 34 tenants including the tenant in both these cases. He has also admitted that rent has been increased in case of some tenants but so far the present cases are concerned, he has insisted that he had not demanded increased rent in both these cases. He has also asserted that tenant has failed to pay rent for the period of default as alleged. The correct legal position in this regard is that even if landlord demands enhanced rent, it is not open to the tenant to withhold payment of old agreed rent between the parties simply on the ground that the landlord has demanded enhanced rent. It is the legal duty of the tenant to see that he does not commit default and he must pay the agreed rent. If landlord refuses to accept the agreed rent for the reason that he wants increased rent as demanded then it is the duty of the tenant to send the rent through money order and he can also deposit the rent in the A Court but the tenant must collect evidence to show that the landlord has refused to accept the agreed rent. In support of the proposition mentioned above, reliance is placed on the case of Haji Ashraf‑ud‑din v. Sabir Hussain and another (1973SCMR309) in which it is held that liability to pay or tender rent regularly lies with tenant irrespective of higher amount demanded by landlord and the tenant is not absolved of his liability to~ pay even contractual rent simply because of landlord's demand of higher rent. Now this plea as stated above is taken by the tenant that he has not committed default and he continued paying the rent at the old rate but the landlord did not issue receipt because he insisted on the payment of rent at the enhanced rent. In Rent Case No. 3626/81 default is for four months. In Rent Case No. 3625/81 default alleged is for eight months. Tenant has failed to produce any evidence to show that he consistently paid the rent for the period of default alleged by the landlord and the landlord did not issue receipts for the reason stated by him. Now if the landlord accepted rent at the old rate from the tenant and refused to issue receipts and insisted on tenant to make the payment of the balance amount then the tenant should have sent the agreed rent by money order and he could have also sent the notice to the landlord stating the factual position therein and he could have deposited the rent in the Court in order to save himself from default on the basis of which ejectment can be granted by the Court but he did nothing of the sort and according to his own assertion he went on paying the rent to the landlord without, getting back from him receipts. The duty is upon the tenant to. produce evidence to satisfy the Court that he has not committed default. Not only that but be did not even produce witnesses in whose presence he g paid the rent for the period of default and the landlord refused to issue receipts and demanded enhanced rent. In Rent Case No. 3626/81 tenant stated in his cross‑examination that in the month of June,' 1980 landlord asked him for increase in monthly rent and such demand was also made by Ghulam Abbas. Second demand was made in July, 1980. It appears that period of default alleged is from 1‑12‑1980 to 31‑7‑1981. Tenant further stated in the cross‑examination that he went on paying the rent to landlord every month and on every occasion landlord made a demand for increased rent. It is very strange that for eight months tenant went on paying the rent for every month and landlord accepted the old tent but did not issue receipts and also on every such occasion renewed demand for increased rent but tenant is unable to produce any witness before whom landlord refused to issue receipt on the ground that he demanded increased rent. Undoubtedly the burden is upon the tenant to produce evidence in respect of the plea he has himself taken and he has produced no such evidence of satisfactory nature in proof of his assertion. It, therefore, clearly appears from the evidence produced by the parties that the tenant has commuted default for the period alleged and he has not been able to convince the Court that his plea is correct to the effect that he went on paying the rent regularly at the old rate to the landlord who accepted the same but did not issue receipts demanding increased rent. For the facts and reasons stated above, 1 do not find any justification to interfere with the impugned orders of ejectment, which are hereby upheld and the appeals filed against them are dismissed with no order as to costs. Tenant is directed to hand over vacant possession of the tenement to land lord within three months from the date of this Order. M. B. A. Appeal dismissed.