2014 PLP 1695 (CLC)

ABDUL MAALIK GADDI, J.

Through this Constitutional Petition, the petitioners have assailed the legality and propriety of the order dated 30-11-2010, passed by the learned Vth Additional District and Sessions Judge, Karachi South in F.R.A. No.269 of 2006, whereby the learned Appellate Court reversed the findings of Rent Controller recorded on the point of default in payment of rent and allowed the ejectment application filed by respondent No.1 on the said ground.

2. Brief facts of the case are that the respondent No.1 filed an eviction application under section 15 of Sindh Rented Premises Ordinance, 1979 against the petitioners on three grounds viz; (i) default in payment of monthly rent from January, 1994 to March, 1994, (ii) infringed the terms and conditions of tenancy and (iii) subletting.

3. The respondent No. in his evocation application contended that he is owner/landlord of building known as Al-Noor Chambers, Plot No.PR-2/3/2, Preedy Street, Karachi, wherein the petitioners are the tenants of respondent No.1 in respect of Shop No.31, situated at ground floor of Al-Noor Chambers, at the monthly rent of Rs.491.40. It is further contended that the petitioners paid the monthly rent to respondent No.1 uptill the month of December, 1993 and thereafter from the month of January, 1994 to February, 1994 failed to pay the monthly rent to the respondent No.1. Hence according to the respondent No.1, the petitioners have committed default in payment of monthly rent. Besides the ground of default the respondent No.1 contended that the petitioners infringed the terms and conditions of tenancy on which the tenement in question was let-out to the petitioners and the petitioners were using the tenement in question for the purpose other than for which it was let-out. So also the petitioners without the written consent and permission of the respondent No.1 sublet the tenement in question to some unauthorized person.

4. The petitioners have contested the ejectment application by filing their written statement before the learned Rent Controller, wherein the petitioners though admitted the relationship of landlord and tenant between them, but opposed the ejectment application on all three grounds.

5. The learned Rent Controller, after recording of evidence of the parties and after hearing their counsel dismissed the ejectment application filed by respondent No.1 vide its order dated 27-7-2006 on all the said three grounds. Feeling aggrieved with the said order, the respondent No.1 preferred all appeal being F.R.A. No.269 of 2006 before the District and Sessions Judge Karachi South, which was subsequently transferred to learned Vth Additional District Judge, Karachi South on administrative ground, who decided the said appeal by allowing the ejectment application only on the ground of default in payment of rent, which is impugned through this Constitutional petition.

6. Heard parties advocates and perused the record.

7. It is contended by the learned counsel for the petitioners that the default alleged was never committed by the petitioners and it is clearly reflected on record that the amount of alleged default was firstly tender through money order dated 24-3-1994 and thereafter duly deposited in Court in M.R.C. No.553 of 1994 on 1-1-1995. He further contended that the findings of the learned Rent Controller is based on rational, logical and proper appreciation of evidence which was recorded before him and as such there was no reason or room for disturbing or reversing the findings of Rent Controller by the learned appellate Court. While elaborating his arguments, he has contended that the petitioners used to pay the monthly rent to the respondent No.1 in advance and the petitioners paid rent to the respondent No.1 till December, 1993, vide receipt available at page 93 of the file, he has further contended that the petitioners had sent the rent for the month of January 1994 and onwards on 24-3-1994 through money order which was refused by respondent No.1 therefore, petitioners have started depositing the rent in Misc. Rent Case No.553 of 1994 before the Rent Controller Karachi South, as such according to him the petitioners have not committed any default in payment of rent. In support of his arguments, he has relied upon case-law reported in 1995 SCMR 330, 1986 CLC 705 (Kar), 1990 MLD 1667, 1989 SCMR 1670 and 1992 SCMR 46.

8. Conversely, learned counsel for the respondent No.1 has supported the findings of the learned appellate Court on the ground of default in payment of rent by arguing that petitioners have committed willful default in payment of rent with effect from January, 1994 to March, 1994. He has further submitted that during the cross-examination the petitioner No.2 namely Shahzad Riaz Shaikh, who is attorney for the rest of the petitioners has admitted that there was a practice to pay the monthly rent in advance of 5th of every month. According to him, the said witness has also admitted the receipt and so also the contents of clause 20 printed or backside of Exh.O/1 in evidence. But the petitioners have failed to pay the requisite rent in time, therefore, he was of the view that the petitioners have committed willful default in payment of rent which cannot be washed out even by subsequent tender/depositing rent in Court. In support of his arguments he has relied upon case-law reported in 1999 YLR 230.

9. After hearing the parties advocates, and perusal of record it reveals that there exist relationship of landlord and tenant in between the parties. It is the case of the respondent No.1 that the petitioners have committed willful default in payment of rent with effect from January, 1994 to March, 1994. This fact has been denied by the petitioners in their joint written statement. In order to ascertain whether the petitioners have committed default in payment of rent as alleged by the respondent No.1 or otherwise. I have gone through the evidence of respondent No.1 in which he has stated that he has not received the rent with effect from January, 1994 to March, 1994. It is settled law that non-payment of rent is a negative fact. If landlord appearing in Court and stating on oath to have not received rent for a certain period, burden lies upon him would sufficiently discharged and shift on tenant to prove affirmatively that he paid or tender such rent.

10. Here in this case the landlord has stated that he has not received the rent for a period of January, 1994 to March, 1994, therefore, burden shift on tenant to prove that he has paid rent for a particular period. In this connection, I have gone through the evidence of petitioner No.2 namely Shahzad Riaz Shaikh, who in his cross-examination categorically admitted the rent receipt Exh.O/1 in evidence. So also admitted the contents at the back of the said receipt. This witness during his cross-examination also deposed that he always used to pay/tender the rent in advance since inception of tenancy. He also admitted the terms and conditions written on the back side of the said receipt. For the sake of convenience, it would be proper to reproduce relevant piece of cross-examination of the said witness which reads as under: "I paid the monthly rent uptill the month of December, 1993 for which applicant issued me the rent receipt. I see the rent receipt dated 13-2-1993 and say that this is the same receipt. I see back of the said receipt as Exh.O/1. I admit the contents of clause 20 printed on back side of the Exh.O/1. Vol. stated that I always used to tender the rent in advance since the inception at the tenancy. It is correct that for the first time I sent the monthly rent for the month of January, 1994 to the applicant through postal money order on 24-3-1994. I produce the certified copy of money order as Exh.O/2. It is correct that on 11-4-1994 I had filed M.R.C. 553 of 94 before the Court of Ist Rent Controller Karachi South for deposit of monthly rent for the month of January, 1994. I produce the certified copy of M.R.C. No.553 of 94 as Exh.O/3. It is correct that for the first time I deposited the monthly rent for the month of January, 1994 in MRC No.553 of 94 and the same was deposited by me on 1-1-1995. "

11. From the above piece of evidence, it is revealed that the rent was to be paid in advance every month by the 5th of each Colander month, whereas the petitioner No.2 during his cross-examination admitted that he first time sent the monthly rent of January, 1994 and onward to the respondent No.1 through postal money order on 24-3-1994, which was refused by respondent No.1. This fact has been denied by the respondent No.1.

12. In order to meet such situation, I have gone through the following case-law:

(1) Ghulam Nabi v. Noushad Ali and 2 others 2010 MLD 1543. (2) Razia Sultana v. Muhammad Hasan Khan 1991 CLC 632. (3) Mst. Shabana and another v. Messrs N.P. Cotton Mills (Pvt.) Ltd. 1999 YLR

230. In the case of Ghulam Nabi v. Noushad Ali and 2 others 2010 MLD 1543 (Kar), it has been held that tenant plea having sent rent through money order denied by landlord-Effect-burden to prove payment of rent of defaulting period would shift upon tenant, but in the present case the tenant admitted that he first time deposited the monthly rent of January 1994, in M.R.C. No.553 of 1994 on 1-1-1995 after the delay of about one year.

13. It is argued by the learned counsel for the petitioners that the petitioners have sent rent of the disputed period through money order, which was refused by respondent No.1 and this fact has been denied by the respondent No.1. Under this situation I am of the view that where payment of rent by money order was disputed, it was proper to examine postal authorities to establish remittance, delivery and acceptance or refusal of such amount. Procedure prevalent for remitting money order required that money order should be tendered with a Form by the postman and if it was accepted, a receipt was given by the payee and if it was refused, same was returned to the remitter with an endorsement of refusal and in case of acceptance receipt would be delivered to remitter. Mere receipt for remittance of money order, photocopy of which was filed by tenant, could not be created as an authentic document to prove that money order was remitted.

14. Here in this case, it is an established practice by the tenant to pay rent in advance on every 5th of the calendar month and this fact has admitted by the attorney of the petitioners in his evidence, therefore, under the circumstances, the petitioners were required to pay/tender the rent as admitted practice but here in this case admittedly the tenants have sent rent for the month of January, 1994 to March, 1994 on 24-3-1994 through money order, which was also not received by landlord and thereafter the tenants have started to deposit the rent of the disputed period and onward in M.R.C. No.553 of 1994 on 1-1-1995 after committing willful default. The similar situation was came under discussion in the case of Razia Sultana v. Muhammad Hasan Khan reported as 1991 CLC 632 in which the Honourable High Court of Sindh has held as under:

"Default in payment of rent

Mode of payment of rent

Payment made in miscellaneous application at time when default was already committed, could not save tenant from consequence of default in payment of rent

Where Money Orders sent by tenant were refused by landlord, tenant was under obligation to immediately avail alternative mode for legal tender of rent prescribed under S.10 of Ordinance for enjoyment of protection provided to tenants by the Ordinance."

15. For the sake of argument, if it is assumed that respondent No.1 has refused the money order sent by the petitioners, even then it was the duty of the tenants to deposit the rent of the disputed period in M.R.C. just immediate after refusal of the money order. But here in this case admittedly the tenants have started depositing the rent in M.R.C. w.e.f. 1-1-1995 after committing willful default.

16. The evidence produced by the tenants in support of their plea appears to not convincing, hence cannot be relied.

17. It is settled law that payment or tender of rent after committing of default of no avail to the tenant. In this regard I am supported with case law reported in 1999 YLR 230.

18. In view of the foregoing reasons, I am of the view that the judgment of the learned appellate Court is not open to exception and the view taken by her on the question of default is based on correct appreciation of evidence. The case-law relied upon by the learned counsel for the petitioners are not applicable to the facts and circumstances of the instant case.

19. In the result this Constitutional Petition is dismissed with no order as to cost. Since the petitioners are old tenants of the premises in question, therefore, they are granted 90 days' time to vacate the premises in question and handover its vacant possession to the respondent No.1 subject to payment of rent.

20. This petition was dismissed along with listed application by me by my short order announced in open Court on 28-1-2014. These are the detailed reasons for the same. JJK/M-13/Sindh Petition dismissed.