1995 PLP 852 (MLD)

The respondent is the tenant of the appellant in respect of Shops Nos.l and 2 on the ground floor of the building situated on Plot No. 9‑B, Usmania Colony, Nazimabad on monthly rental of Rs.450 payable on 5th of each month in advance by virtue of agreement of tenancy dated 30‑9‑1980. The appellant filed an eviction application against the respondent seeking his ejectment from the shop premises on the ground of default in payment of rent for the period referred to above. He also urged the ground of infringement of conditions of tenancy in his rent application. The respondent resisted the eviction application and denied the commission of default as well as infringement of the conditions of tenancy. He pleaded that he was inducted as tenant by Safdar Ali son of Aitemad Ashiq Ali who used to recover the rent from him. He has produced a copy of the' lease agreement dated 3‑10‑1973 executed between him and said Safdar Ali as Attorney of Aitemad Ishaq Ali father of the present appellant. While denying the commission of default he stated that the appellant has permanently settled at Kuwait and he resides there with his family members. Some times his wife visits Karachi all alone; some times with her two sons and some times with entire family for short visits. On their visit to Karachi on their demand he used to pay the rent to them but none of the family members issued any receipt to him. He added that during their absence for long period one Ahmed Ali Thanawala used to collect the rent from him in cash and some times by way of cheque. He pleaded that he had paid the rent upto February, 1988 when the appellant visited Karachi. In the end of February, 1988 appellant demanded rent from him and he paid the same for the month of March, 1988 by way of cheque. Besides Ahmed Ali Thanawala also paid by cheque a sum of Rs.42,000 to the appellant towards the rents collected by him including the rent paid by the respondent. The respondent further pleaded that after the collection of rent upto‑date from him as well as other tenants the appellant called them and asked them to pay huge amount towards Pugree as the shops constructed on the adjacent plot had been let out on payment of huge Pugree. On his refusal to pay, the present application was filed against him. In support of his case appellant filed his own affidavit‑in‑evidence and was cross examined on behalf of the respondent. On the other hand, respondent appeared as his own witness and was subjected to lengthy cross examination. Upon assessment of the evidence on record, learned Rent Controller came to the conclusion that there was no default in payment of rent and that the respondent had not infringed the terms and conditions of the tenancy. Consequently the ejectment application was dismissed vide order, dated 31‑10‑1991. It is as against this judgment of the learned Ist Senior Civil Judge and Rent Controller, Karachi (Central) that the present appeal was filed. With the assistance of the learned counsel for the parties I have gone through the relevant evidence on record and heard both of them at sufficient length in support of their respective contentions. In his evidence, appellant Noor Ali has admitted that he alongwith his family is living in Kuwait since last 35 years and that he used to visit Pakistan after a year or two. He denied the suggestion that on his visit to Pakistan he used to collect the rent from the tenants or that whenever his wife and children visited Pakistan they collected the rent from the tenants including the respondent. Without mentioning in his affidavit‑in‑evidence whether Ahmed Ali Thanawala was authorised by him to collect the rent on his behalf from the respondent, in his cross‑examination in the first instance he pleaded no knowledge whether the said Ahmed Ali Thanawala was collecting rent prior to the year 1978 but in the same breath he stated that Ahmed Ali Thanawala was collecting the rent in his absence. He admitted the suggestion that the respondent used to tender the rent to him some times in cash and some times by cheque. Without being asked whether the cheques were honoured he voluntarily stated that the cheques were dishonoured. On being questioned as to how many cheques were dishonoured he was unable to mention any number of such cheques. He denied the suggestion that his Rent Collector Ahmed Ali Thanawala had received the rent upto January, 1988 but hastened to say that said Ahmed Ali Thanawala had given him a statement in the month of March, 1988 that the respondent had not paid the rent for the last 46 months. In his cross‑examination, he admitted that the said Ahmed Ali Thanawala had given him the cheque for Rs.42,000 which was deposited in his account but again he voluntarily stated that this amount did not pertain to the present opponent. He denied the suggestion that the amount paid by Ahmed Ali Thanawala included the rent paid by the respondent u0to January, 1988. On his part the respondent/tenant has reiterated in his evidence that the appellant having permanently settled at Kuwait with his entire family, some times his wife and some times the entire family used to visit Karachi and stay on the first floor of the shops under his tenancy. He has further stated that whenever they visited Karachi each one of them used to ask for money from him. He testified that some times the wife of the appellant and some times his one son or the other used to take money from him but they never executed any receipt. This statement of the respondent has not been challenged in the cross‑examination and by legal implication it is deemed to have been accepted by the appellant. Again the respondent stated in his evidence that during the absence of the appellant and his family for long period the rent used to be collected from him by Ahmed Ali Thanawala. He claimed that he had paid the rent to said Ahmed Ali Thanawala upto January, 1988 and mentioned seven cheques for payment of different amounts in para. 5 of his affidavit‑in‑evidence to substantiate his statement. Now the appellant having admitted that Ahmed Ali Thanawala was his Rent Collector it does not lie in his mouth to say that the respondent had not paid the rent for a period of 46 months. The appellant in his evidence claimed that Ahmed Ali Thanawala had given him the cheque for Rs.42,000 which was deposited in his account but the said amount did not pertain to the present opponent. He voluntarily stated that in the month of March Ahmed Ali Thanawala had given him the statement that the respondent had not paid the rent for a period of 46 months. This statement having been challenged in the cross‑examination of the appellant as well as in the evidence of the respondent it was incumbent upon the appellant to lead the evidence of said Ahmed Ali Thanawala to discharge his burden but for the reasons best known to him the said Rent Collector was not summoned to step into the witness‑box. Non- examination of said Ahmed Ali Thanawala gives rise to a legitimate inference that had he been examined before the Controller his evidence would have been unfavourable to the appellant. Even otherwise silence on the part of the appellant for a period of nearly four years and approaching the Rent Controller after a lapse of 46 months would show that there is sufficient force in the statement of the respondent that he had been paying rent to the appellant and his family members on his visit to Pakistan and during his long absence to his Rent Collector Ahmed Ali Thanawala. The fact that Ahmed Ali Thanawala had paid a cheque for Rs.42,000 to the appellant towards the rent collected by him from the tenants and non‑production of the alleged statement furnished by Rent Controller showing default in payment of rent on the part of the respondent would tend to show that the statement of the appellant in all probability was not correct. Absence of the appellant from the country for a long period and his non‑availability was by itself sufficient to persuade the respondent to pay the rent in lump sum by way of cheque or in cash to his Rent Collector and no exception can be taken to it in the peculiar circumstances of the case. It would thus appear that the payment of rent upto January, 1988 to the appellant or his Rent Collector has been proved by sufficient evidence on record. With regard to the rent for the month of February, 1988 it is the stand of the respondent that he had paid it to the appellant in cash. This statement of the respondent was not challenged in the cross‑examination which by implication of law is deemed to have been accepted by the landlord. A suggestion of this effect was also made to the appellant in his evidence who obviously denied the same but in view of his denial in respect of payment of rent for March, 1988 by way of a cheque and its deposit into his account fully established by photo‑copy of the cheque duly cleared coupled with the letter of the respondent addressed to the Manager of the Bank Exh.O/6 it can be safely concluded that the appellant was not telling the truth when he denied the receipt of rent for the month of February, 1988. Learned Rent Controller was, therefore, justified in concluding that there was no default on the part of the respondent and that the rent had been duly paid to the landlord. Learned counsel for the appellant has also agitated the non‑payment of rent subsequent to the filing of the ejectment application on 9‑3‑1988. Now as regards the rent for the month of March, 1988 it has already been observed that on his demand the respondent had paid the rent to the appellant by way of cheque dated 5‑3‑1988. Exh.O/5 which was duly collected and the amount credited into the account of the appellant yet he dishonestly denied the receipt of rent for this month. As regards the rent for the subsequent period during the pendency of the rent case the respondent had remitted the rent by way of cheques which were sent to the appellant by registered envelopes Exh.O/7 to O/14 which were returned to him undelivered with the endorsement that the addressee was out of country. On some of the envelopes which were opened before the Rent Controller during the course of evidence it was written by the postal authorities that the premises were locked. Learned counsel for the appellant has taken exception to these cheques stating that in the absence of the landlord these should have been sent to the Rent Collector and in any case these were not confronted to the appellant at the time of his cross‑examination. No doubt these cheques were neither sent to the Rent Collector nor confronted to the appellant during the course of his examination the fact remains that these were produced in evidence by the respondent and envelopes opened in presence of the Controller. Authority reported in 1991 CLC 1068 has no bearing on the facts of this case and thus does not improve the case of the appellant. At any rate these cheques covered the period subsequent to the filing of the ejectment application which furnished a fresh cause of action to the landlord for seeking an ejectment. Learned counsel for the respondent has rightly referred to the judgment in the case of Nasir Jamal v. Zubeda Begum 1990 CLC 1069. In this case relying upon the judgment of the Supreme Court in the case of Mst. Amina Begum v. Mehar Ghulam Dastgir PLD 1978 SC 220 a Single Judge of this Court held that notwithstanding the fact that in proper cases a discretion is vested in the Court to take note of the subsequent events and grant relief to the parties accordingly, if by doing so it can shorten litigation and best attain the ends of justice. But it is to be exercised only in proper cases in order to avoid multiplicity of proceedings, shorten litigation and to do complete justice between the parties. Dealing with the facts of the case learned Single Judge pointed out that the Rent Controller having specifically held that the claim of .the respondent in regard to the default in payment of rent for the period from March, 1986 to April, 1987 was in correct, held that he committed error in law in allowing the application for ejectment on the ground of default for the period subsequent to the filing of the ejectment application when no effort was made by the respondent to amend the application. In the present case it has been found that there was no default in so far the period prior to the filing of the ejectment application is concerned, therefore, no eviction can appropriately be ordered on the basis of non -payment or late payment of rent subsequent to the filing of the ejectment application as contended by learned counsel appearing for the appellant. Needless to say failing in his efforts to remit the rent by cheques, the respondent started depositing the rent due in Miscellaneous Rent Case No.545 of 1989 which has not been disputed. Thus there was no default in payment of rent due even after the filing of the eviction application. Authorities reported in 1984 SCMR 755; 1986 CLC 555; 1987 CLC 333; 1987 CLC 364; 1987 CLC 496 and 1973 SCMR 598 are therefore of no avail to the appellant. In view of the above discussion, there is no merit in this appeal which must fail and is hereby dismissed with no order as to costs. N‑540/K Appeal dismissed.