1986 PLP 1502 (CLC)

Shabbir Ahmed Shaikh for Appellant. S. Qutubuddin Ahmed for Respondent. Dates of hearing: 14th,15th, 16th, 20th and 22nd October, 1985 The appellant filed an ejectment application on 31‑5‑1981 against the respondent for ejectment from house bearing No. 235/A, Pir Ellahi Bukhsh Colony on the ground of default in payment of rent for the months of February, March and April at the rate of Rs.200 p.m. The respondent pleaded that he has regularly been paying rent. The rent for the months of February, March and April was offered on due dates but the appellant with ulterior motive avoided to receive it and demanded the rent from February, 1980 at the rate of Rs.500 p.m. to which the respondent did not agree. When the rent was again tendered on or about 10th May, 1980 and was refused he sent it by money order which was also refused. The learned Controller by the impugned order held that no default has been committed and dismissed the ejectment application. Mr. Shabbir Ahmed Sheikh the learned counsel for the appellant has contended that under section 15(2) of Sind Rented Premises Ordinance the Controller has no discretion to condone the delay and has, therefore to be examined whether the respondent has committed default. In view of the plea taken by the respondent the entire burden was upon him to establish that the rent was paid or tendered in due time. In this regard the respondent has examined himself in which he has repeated the averments made in his written statement. He has however given the names of the witnesses also in the affidavit of evidence in whose presence rent was offered and refused and demanded for enhanced rent at Rs. 500 p.m. was made by the appellant. In cross‑examination also he has maintained that he had offered the rent in due time and paid the rent for the months of February, March in the month of March but it was declined. He has also stated that in May the appellant refused to accept the rent which was offered on 10‑5‑1980 and finally money orders were remitted which were refused. The money order coupons have been produced in evidence by the respondent to corroborate this statement. The respondent also examined one Muhammad Ibrahim but as pointed out by Mr. Sheikh, in cross‑examination he admits that he does not know anything about the contents of the affidavits. He has also made contradictory statement regarding the period of his acquaintance with the respondent. I am, therefore, unable to accept his statement. The second witness is Khalid Anwar who has stated that in the first week of April, 1980 in his presence the respondent had offered the rent for three months which was refused by the appellant and he had demanded rent at the rate of Rs.500 p.m. On this aspect of the case there seems to be no cross‑examination by the appellant. This statement has, therefore, gone unchallenged. Mr. Sheikh has contended that his statement does not corroborate the facts stated by the respondent as he has stated to have witnessed in the month of April but in his cross‑examination he has stated that lastly he saw the appellant in May, 1980 in the house of the respondent. There does not seem to be any material contradiction as in respect of his visit in May he does not state that the rent was tendered in his presence. The learned counsel for the appellant has referred to cross‑examination of the respondent where he has stated that lastly he had paid the rent to the landlord in March, 1980 and contended that no rent had been paid or offered after March and there is a clear default in payment of rent. As the ejectment application was filed on 31‑5‑1980 and the respondent was entitled to pay rent within 60 days from the date when rent became due, the appellant could only complain of default in respect of the rent for the month of February, 1980. The respondent has stated that he paid the rent for February in March and again tendered the rent for February, and March in March. The respondent, therefore, tendered rent for February twice in the month of March. As the appellant refused to accept the rent for February tendered in March the respondent cannot be held to be a defaulter on 31‑5‑1980 when the ejectment application was filed. The learned counsel for the appellant contended that the statement of Khalid Anwar does not support the respondent as this witness has stated that in the month of April the respondent had paid rent for three months but this fact has not been stated by the respondent himself. It is correct that the respondent has not specifically stated this fact about payment made in the month of April for three months but in para. 2 of his affidavit he has stated that the rent for February, March and April were paid on due dates but it was refused. From this statement it can be assumed that the rent for these months was paid from time to time whenever it became due. In the face of this evidence the respondent has established that the rent was offered and was refused by the appellant. In view of this factual position, the default has not been established. The appeal is, therefore, dismissed with no order as to costs. H.B.T. Appeal dismissed