1986 PLP 1758 (CLC)

This appeal is directed against the order of XII Senior Civil Judge and Rent Controller, Karachi, dated 5‑4‑1982. The relationship of landlord and tenant is admitted and the rate of rent is also admitted to be Rs.300 per month. The ejectment application was filed by the respondent on 8‑10‑1979 claiming that three months' rent from July, 1979 to September, 1979 was due. It was also stated that the appellant had been inducted into the said house on 15th May, 1979, under a rent agreement. Copy of the agreement was filed. In the written statement the appellant took up the position that the tenancy agreement had been entered into on 15‑5‑1971 but it was stated that on 5‑7‑1979 cash in the sum of Rs.900 had been paid to the respondent as advance rent for July to September, 1979, but no receipt for the same was issued and when the appellant went to pay the rent for October to December, 1979 in the first week of October, 1979. He was told that case had been filed.

2. Only one issue in respect of the default was framed.

3. Nawab Ali in his affidavit stated that rent from 1‑7‑1979 had not been paid till the filing of the application. He denied in cross- examination that the rent from First July, 1979 and thereafter had been paid.

4. Ehsanullah, attorney of the appellant, filed his affidavit and took up the position that the rent was payable on 15th of every month as tenancy agreement was executed on 5‑5‑1971 and that on 5‑7‑1979 the opponent had paid Rs.900 to the applicant. He stated, that there was no default as rent was payable on 15th of every month. In cross‑examination he admitted that he was not present at the time the opponent was alleged to have paid Rs.900 to the applicant.

5. The other person, who filed affidavit on behalf of the appellant, was Ghulam Samdani who stated that the appellant had paid Rs.900 to the respondent in first week of July, 1979. But in cross‑examination he admitted that when the rent was paid he was in car with them.

6. It was admitted by Ehsanullah in cross‑examination that all the rent had been paid in 1971 by cheque. The appellant did not examine himself although he had examined the person who had allegedly paid the rent of Rs.900.

7. In view of the fact that none had deposed on behalf of the appellant that the payment had actually been made to the respondent in his presence the Rent Controller disbelieved the payment of Rs.900 and allowed the ejectment application.

8. Mr. Hussain Adil Khatri has submitted that the rent was payable from 15th to the next 15th and, therefore, the rent should be calculated from 15th of July, 1979.

9. Mr. Yousuf Rafi has replied that in the written statement it had been clearly admitted that rent of July to September, 1979 had been paid in advance and, therefore, the appellant could not be allowed to take an inconsistent position. I find that on this aspect of the case there is some confusion. The rent agreement talks of tenancy from 15th to the 14th of the next month but the application filed was in respect of the rent for 3 calendar months and that was not specifically denied in the written statement. The affidavit of Nawab Ali had again alleged that default in respect of 3 calendar months and ‑he was not cross‑examined on that aspect of the case at all. But similarly Ehsanullah had taken up a clear cut position in his affidavit that the rent was payable from 15th to the next 14th and he was not cross‑examined on that aspect of the case at all.

10. The fact that the rent has not been paid for July to September, 1979 has been held to be proved against the appellant and there is nothing on record which could justify me to upset that finding. However, since the application was filed on 8‑10‑1979, therefore, till the filing of the application only one month's rent i.e. rent of July, 1979 was in default because it could have been paid by 29th of September, 1979 after allowing 60 days grace from the day that it was due on 1‑8‑1979. The rent of August, 1979 could have been paid by 30th of October, 1979 and, therefore, it was not in default on 8‑10‑1979 when the application was filed. The clear position that emerges is that there was only one month's default in the payment of rent of July, 1979. Since there was default in respect of one month's rent only, therefore, the Rent Controller should have considered the question as to whether the discretion in ejecting the tenant should be exercised against the tenant or not. But he had not considered that aspect of the case. Since the appellant had gone out of Karachi and he could not be examined, therefore, the proof in respect of payment of Rs.900 was not tendered properly. It is correct that the appellant had taken up the position of having paid 3 months' rent and he had failed to substantiate the same and, therefore, he had taken up incorrect position on a point of fact, but in view ,of the fact that the appellant, who could have proved the fact of payment was out of Karachi, therefore, a correct finding had been arrived at against the appellant. But it cannot be said that it was a completely false plea which had been taken by the appellant. The appellant had taken an incorrect plea and he had failed to substantiate the same because he had not gone into the witness‑box and the explanation of his absence is that he was out of Karachi and his failure to appear in Court was bona fide. It cannot, therefore, be said that the appellant had taken a contumacious and completely false stand and, therefore, I am of the view that the discretion in favour of the tenant could be exercised and should have been exercised in his favour in view of only one month's default in rent. 1, therefore, set aside the impugned judgment and I am of the view that the ejectment order should not have been passed and the tenant should have been allowed to pay the rent which was in arrears. The rent which has been deposited by the appellant can be withdrawn by the respondent. H. B. T. Ejectment order set aside.