1986 PLP 326 (MLD)

Date of hearing: 6th February, 1986. This appeal is directed against the Order of Miscellaneous Mahjabeen, dated 31‑1‑1983, the then XII, Senior Civil Judge/A.S.J. and Rent Controller, Karachi, whereby she allowed the ejectment application under section 15(2) Sind Rented Premises Ordinance, 1979, filed by the respondent.

2. The respondents are admittedly the owners and landlord of the building known as Makki Manzil, Mission Road, Karachi. The appellants are their tenants in respect of tenement No.9 on the monthly rent of Rs.27/50. The original tenant was their father Muhammad Amin. The tenancy has devolved upon them after his death. According to the respondents the appellants are habitual defaulter and irregular in payment of rent. They have not paid any rent whatsoever from May, 1977. Hence the prayer for their ejectment.

3. The appellants contested the case by filing a written statement in which it was denied that they were defaulter or irregular in payment of rent. It was pleaded that respondent No.7, who is the widow of the deceased tenant Muhammad Amin and mother of remaining respondents is no more the tenant of the premises in dispute as she had shifted to her own flat No.16. It was further alleged that the appellants were always ready and willing to pay the rent but the respondents themselves had refused to accept the same and had been pressing the appellants to enhance the rent. The appellants had not yield to this demand and had sent the rent by money order which was refused by them. Hence they started depositing the same, with the Controller'.

4. The main point that came for determination before the Controller related to the default in payment of rent. The learned Rent Controller after taking into consideration the evidence adduced by the parties in the shape of the affidavits and their respective cross‑examination by the other side on those affidavits as well as documents produced by the parties came to the conclusion that the appellants had committed default in payment of rent for the period of 4 years. She therefore, allowed the ejectment application.

5. I have heard Mr. M.Jamil, Advocate for the appellant and Mr. Faizuddin, Advocate for the respondent at length.

6. From the evidence that has come on record it is clear that last payment of rent was made in April. 1977. Thereafter no payment of rent nor even tender thereof was made till the filing of this rent case, on 11‑1‑1981. The money order as well as the deposit with the Controller were made after the filing of this case. Thus, there is non‑payment of rent for more than 44 months, which is a glaring instance of default. The allegation of the appellants that the respondents had refused to accept the rent and had been insisting on enhancing the rent has not been proved at all. Not only the respondents had denied this fact but they had ors the contrary alleged that the appellants were not paying the rent in spite of their repeated requests. The burden of proof that the appellants had offered the rent and the respondents had refused to accept the same was heavily upon the appellants which they had failed to discharge.

7. I, therefore, do not find any reason whatsoever to interfere with the order of the learned Controller and thereafter uphold the same. The appeal is accordingly dismissed. M.Y.H???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.