1989 PLP 462 (CLC)

Mr. 'fduhammad Akmal Wasim the learned counsel for the appellant has contended that the rent for the. month of October, 1981 to December, 1981 had been paid under a receipt issued by Eijaz Malik and rent from January, 1982 to February, 1982 was paid to the same person but he did not issue any receipt, and, therefore, the question of default does not arise. In order to establish payment of rent from October, 1981 to December, 1981 the appellant has relied on photo copy of a receipt Exh.A/3 which reads as follows:‑ "Received Rs.1,905 (One thousand nine hundred and five only) for the rent of September and October,. November, 1981. On the off of Hons on 179/C P.E.C.H.S. (on) Tariq Road, Karachi. Sd/‑Malik M. Eijaz.' 15‑12‑1981. Malik Eijaz has denied having received rent or having signed this receipt. As the appellants were alleging payment of rent the burden was entirely upon them to establish this fact. The appellant examined Masood who is stated to have paid the rent collectively on behalf of all the tenants. One Yaqoob was also examined by the appellant who stated that he was residing with Eijaz Malik. As Eijaz was taken 'meals he asked him to write a receipt which was written by him and signed by Eijaz Malik. He, however, stated that he did not know whether any money had passed between Masood and Eijaz. During cross‑examination he was unable to state whether it was morning, evening or night when he had written out the receipt. Masood has also filed his affidavit in evidence and has stated that he had paid Rs.1,905 towards the rent for three months on behalf of all the tenants. Significantly enough in his affidavit of evidence he has not mentioned the presence of Yaqoob. In fact it has been stated that this amount was paid under a receipt issued by Eijaz Malik. The introduction of Yaqoob at such a late stage makes the whole story completely, suspicious. If Eijaz Malik was literate enough he could have written this receipt himself instead of asking Yaqoob to prepare it. The appellants have not produced the original receipt. Masood had produced a photo copy to which objection was raised on behalf of the respondent. For the missing original the explanation given by the appellant is that after some time in January, Eijaz Malik asked him to return the receipt as he would issue receipt on printed receipt book but neither he issued a separate receipt nor returned the original. If this was the state of affair then the appellants ought to have reacted sharply and within reasonable time‑ issued a notice to the respondent or Eijaz Malik calling upon them to issue the receipt or return the original. No steps were taken. The appellants have sent a notice dated 22‑2‑1982 to the respondent with regard to payment of rent for the months of January and February, 1982 but in this letter also no reference has been made to the payment made for the month of October to December, 1981 nor in respect of the original receipt which is alleged to have been obtained by Eijaz Malik and had not been returned to them. A reference to the receipt in this letter is only in respect of rent for the month of January which is stated to have been paid and shall be dealt with afterwards. From the record it is clear that the respondent had earlier by a notice dated 18‑5‑1981 alleged that appellants were irregular in payment of rent and that the premises was required for his personal bona fide requirement and they must vacate it. In these circumstances when the parties were sufficiently at loggerhead and dispute had arisen between them it was natural that if any attempt would have been made to defraud any party it will react sharply and try to place all facts on record. The appellant seems to have taken no action in the matter although no trust existed between the parties any more. These facts weigh heavily against the appellant. The learned Controller has compared the signature on the photo copy of receipt Exh . A /3 with the signature of Eijaz Malik on his office identity card Exh.A/4 and concluded that both the signatures are materially different. I have also examined them and the conclusion of the learned Controller cannot be disputed. The, execution of the receipt was being challenged from the very beginning and therefore, it was open to the appellant to have applied to the Controller for referring the disputed signature and the admitted signature of Eijaz Malik to a handwriting expert but this course was not adopted by him. Therefore, the learned Controller has rightly concluded that the rent for the month of October, to December, 1981 has not been proved to have been paid by the appellant. It may be mentioned that the receipt is for the rent, for the month of September, October and November, 1981 but the learned counsel for the appellant states that this was a mistake and admittedly rent had been paid upto September, 1981. This fact though a mistake does not attach any credence to Exh.A/3. Be that as it may the fact remains that its execution and payment of Rs.1,905 to Eijaz Malik has not been established. So far the default for the month of January and February, 1982 is concerned appellant has pleaded that this amount was also paid to Eijaz Malik but no receipt had been issued by him. On my query the learned counsel for the appellant stated that this rent had been paid in February, 1982. As discussed earlier the relation between the parties had not been cordial. The respondent had already served a notice of ejectment and Ejaz Malik according to the appellant had deceitfully obtained the original receipt of rent paid upto December, 1981 and had neither issued a proper receipt nor returned the same, therefore, in such circumstances it is difficult to believe that a normal human being with proper understanding would again pay the rent without obtaining any receipt. In order to establish this payment Mr. Akmal Waseem has referred to appellant's .letter dated 22‑2‑1982 Exh.A/32 which according to him was sent by registered post acknowledgment receipt to the respondent and was delivered at his address. To prove these facts the learned counsel has referred to postal acknowledgment receipt and despatch receipt, original of which were shown to me in Court and photo copies of which were produced before the Controller and are on record. According to the appellant as rent was paid on 8th February, 1982, but no receipt was issued the appellant sent a letter dated 22‑2‑1982. However, this letter does not seem to be a genuine letter reflecting the correct position. The letter was written on 22‑2‑1982 but according to despatch receipt it was sent on 24‑2‑1982. These two dates are very material. From the record it is clear that ejectment case was filed on 13‑2‑1982 and notice was served on the appellant on 24‑2‑1982. The appellant prepared this letter keeping in mind the date of service, put 22=2‑1982 on it and despatched it on 24‑2‑1982. Therefore, in my view this letter was ante‑dated and was written after the notice of ejectment had been served through the Court. This is a self‑serving letter prepared with a view to create a defence for the default alleged by the respondent. In view of this discussion so far the default for the months of October, November, December and January is concerned the appellant has failed to ‑prove that payment was made to the respondent. The next ground for ejectment is personal bona fide requirement of the respondent and his son. In the application the only fact alleged is that the premises is required for him and for his son for business purpose. In the affidavit of evidence the same has been repeated by the respondent but no details of his sons or the business they want to start have been mentioned. The appellants have cross- examined to show that one of his sons is fully established in business. The vague and slipshod manner in which the personal requirement has been pleaded and evidence has been produced does not establish this plea. Therefore, on this ground the finding of the learned Controller cannot be sustained. So far other sets of cases viz. F.R.A.966/86 to F.R.A.970/86 are concerned they relate to default in payment of rent from March, 1982 to May, 1983. It has been pleaded by the respondent that after ejectment application was filed the appellant failed to pay or deposit the rent in Court. On the other hand Mr. Akmal Waseem has contended that the rent for the month of March, 1982, was remitted through money order, but it was refused. The respondent had already filed ejectment application in which application under section 16(1) had been filed. Therefore, the appellant could not have deposited the rent in Court firstly because the order for deposit had not been passed and secondly, as the ejectment case had been filed the provisions of section 10 could not be invoked. It is further contended that the appellant had no option but to wait till such time the order was passed and therefore, there was no default on the part of the appellant. . The contention of learned counsel for the appellant does not seem to be correct. Section 10 lays down the mode of payment of rent by the tenant. It also provides such modes which may be adopted by the tenant if the landlord refuses to accept the rent, viz. remittance by postal money order or deposit in Court. If A no order has been passed for deposit of rent the tenant is free to adopt any of these modes provided the landlord refuses or avoids to accept the rent. The proviso to section 10 makes this section inapplicable to cases which were pending before the Controller on the commencement of the Sind Rented Premises Ordinance. The present ejectment was filed after the promulgation of the Ordinance and was not pending on the date of the commencement of the Ordinance. There was no bar under law prohibiting the deposit of rent in Court by the appellant. It is the statutory duty of the tenant to pay the rent regularly. F The pendency of ejectment case does not give a right to stop payment of rent. After order under section 16(1) was passed the appellant deposited the rent in Court. However, no valid ground for non‑payment from March till the order was passed has been given. . All the appeals are. dismissed. The appellant is allowed six months time to vacate and hand over vacant possession of the disputed premises to the respondent. M.BA./1‑62/K Appeals dismissed.