1986 PLP 393 (CLC)

Abdur Rashid Mirza for Respondent. Date of hearing: 19th September, 1985. The appellant Zulfiqar Hussain is in possession of the disputed premises which is a residential house, a part of the building situating on Plot No. 565‑566‑C, Khushal Road, Karachi, as a tenant of Mrs. Tazeen Chowdhry, the owner and the landlady of the said house at monthly rent of Rs.150. He has filed this appeal from the judgment of Xth Senior Civil Judge and Rent Controller, Karachi, dated 14‑10‑1982 whereby he has been directed to vacate the disputed house and hand over possession thereof to the respondent within two months of the judgment. After hearing the learned counsel for the parties, the appeal was dismissed with no order as to costs directing the appellant to hand over vacant possession of the house in dispute to the respondent within one month vide short order, dated 19‑9‑1985. The ejectment application filed by the respondent on 1‑7‑1979 is based on the sole ground of default in payment of rent. The respondent's case is that the appellant has failed to pay the rent for five months from February, 1979 to June, 1979. The defence set up by the appellant is his vehement refutation of the allegations of the default. According to him he had sent the rent for the disputed months by cheques. However, the respondent refused to accept two cheques, first relating to the rent for April and May and second for June and July. Thereafter, the appellant once again sent the rent to the respondent for six months (i.e. from April to September, 1979) by money order but that too was returned unaccepted. Both the parties filed their affidavits‑in‑evidence and produced documents in support of their case. The learned Rent Controller after taking into consideration the evidentiary material produced before him believed the evidence led by the respondent and ordered the appellant to vacate the disputed house and deliver its possession to the respondent. Since the payment of the rent for the disputed period is disputed, the burden was on the appellant to prove the payment. As stated above he has contented himself with filing only his personal affidavit. The sum and substance of his case as presented before the Rent Controller is:‑ (a) That the cheque for Rs.300 as rent for the months of January and February, 1979, was sent to the respondent, which was even encashed by the latter. (b) That the rent for the month of March, 1979 was also sent to the respondent by cheque and as the same was not returned, it is presumed that the respondent had received the same. (c) That the two cheques, one relating to the rent for April and May and another with regard to June and July sent to the respondent were returned as refused. , (d) That the rent for six months from April, 1979 to September, 1979 was sent to the respondent by money order but that too was refused by the latter. As regards the rent for month of February, the contention of the learned counsel for the respondent was that the cheque by which the appellant claims to have sent the rent for the said month actually pertained to the rent for months of December, 1978 and January, 1979. No doubt this cheque was admittedly encashed but there is no evidence to show that the amount of the cheque covered even the rent for February, 1979. The appellant has neither produced the cheque itself nor copy thereof in proof of the payment. It is an admitted position that no rent receipt was ever issued by the respondent and as such the proof of the payment through production of rent receipt is also wanting. Coming to the rent for the month of March, 1979, it was conceded by the learned counsel for the appellant that only postal receipt of the registered cover containing the cheque has been produced in evidence He was however, unable to reply when he was asked as to what was the proof that the registered cover was actually received at the other end in absence of acknowledgment receipt and whether the said cove; contained the cheque of Rs.150 being the rent for the month of March 1979. So far the rent for three months namely April, May and June is concerned, it is the appellant's own case that the covers in which the cheques for these months were sent were returned as refused. Since the respondent has denied having refused to accept the rent for the above three months sent by cheques, it was the duty of the appellant to have produced the postman concerned or any other person in evidence to prove that it was the respondent who had refused to accept the registered covers containing the cheques. In absence of such evidence it cannot be held that the respondent had refused to accept the said covers. Lastly the rent for six months allegedly sent to the respondent by money order was admittedly sent after the ejectment application had already been filed and, therefore, it was of no legal consequence. Apart from above the learned counsel has drawn my attention to the case of this Court reported as Ghafoor Ahmed v. Anwar Baig PLD 1982 Kar. 403 wherein it is held that the rent sent by cheque is not a valid tender. I am in respectful agreement with the view in this behalf expressed in the above reported case. It is also not denied that the appellant has been paying the rent in lump sum for more than one month. According to the learned counsel for the appellant this was done as per practice that has evolved in due course of time. It may be observed that such practice has always been disapproved by the superior Courts which have always construed it as a sort of concession emanating from the helplessness of the landlord. The Courts have, therefore, been of the view that such condonation of the tenant's lapses by the landlord should not be interpreted as a practice giving licence to the tenant to adopt the same as if it is a perpetual arrangement made with willing consent of the landlord. For above reasons the appellant cannot but be held to have failed to prove that he had paid the rent for the disputed period. Accordingly the conclusions arrived at by the learned Rent Controller as to the appellant's default in payment of rent are correct and do not call for any interference. Therefore, the appeal was dismissed. H . B . T . Appeal dismissed.