1988 PLP 981 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Petitioner Riaz Mahmood who was the tenant of the respondent has brought. this petition for leave to appeal to call in question the judgment of a learned single Judge of the Sind High Court, dated 1‑1‑1987 whereby the order of the Rent Controller dismissing the ejectment application of the respondent was set aside and the appeal of the respondent was allowed, with the result that petitioner was ordered to be ejected.

2. The rate of rent was admittedly Rs.150 per month and the case of the landlady (respondent) was that the tenant (petitioner). paid rent upto April, 1975 and had stopped paying rent with effect from May, 1975 for 7 months. The tenant admitted that he had paid rent upto April, 1975 but his plea was that the rent for May, June and July, 1975 was paid by him through cheque. According to him this cheque was dishonoured by the Bank for want of funds in collusion with the landlady, He also relied upon a rent receipt for these three months, claiming that cash payment was made. Although the landlady asserted in her evidence that the receipt pertains to cheque which was dishonoured, the leaned Rent Controller held that it was issued in lieu of a separate cash payment. Additionally the learned Rent Controller held that the security deposit of Rs.1,000 tying with the landlady was adjustable to arrears of rent as the rent agreement had expired by lapse of time. In All according to the finding of the Rent Controller, rent for 4 months was due and payable which was paid or adjusted in the aforesaid manner. The plea of the tenant that the rent was being collected in lump sum by intervals as a practice was also accepted. For these three reasons the learned Rent Controller held the tenant not to be a wilful defaulter.

3. On appeal, however, the learned Judge was of the opinion that the tenant was not entitled to set up a different case from his pleading on facts and observed: "Evidence was, however, led to establish the defence namely, the rent in respect of disputed period was paid through receipt dated, 2‑8‑1975, the cheque was dishonoured because the rent was received in cash, the appellant was in the habit of receiving rent in lump sum and did not come to collect the rent from him every month, the appellant adjusted the expenses of repairs x out of rent, the brother‑in‑law of the attorney used to come to collect rent from the respondent and he gave permission about installation of Sui gas and adjustment of rent from the expenses incurred for installation of gas and lastly the respondent issued a cheque for Rs.450 which the appellant did not encash. This evidence evidently was irrelevant to the pleadings, it was not the case of the respondent in his pleadings. " Excluding the evidence on pleas not set up in the written statement of the tenant, the remaining pleas were considered by the learned judge in the following manner: "Such being the position, the inescapable conclusion follows that the Controller committed the error of taking into consideration evidence which he ought not to have done so. Once the evidence in justification of the plea of lump sum payment, receiving of cash in lieu of cheque in respect of the rent for disputed period is ruled out of consideration as already observed, had not been pleaded, then the plea that survives or the defence that services is that he issued a cheque which was dishonoured in collusion with bank staff and the deposit of rent in Misc. Rent Case No.198 of 1975. It is an admitted position that the cheque was dishonoured. It is also an admitted position that the cheque alongwith the bank slip was sent to the respondent through registered letter which was duly received by his wife. If the rent is tendered through cheque and the landlord accepts it without any objection and the same is honoured or encashed on presentation, then it is legal tender and if the cheque is dishonoured on presentation, then the same will not be considered as valid and the tenant will be liable for the default. In the present case as I have already observed that the cheque was dishonoured. The burden is on ' the tenant to establish by cogent evidence that he paid the cash amount in lieu of the cheque. This burden is not discharged by the respondent. I hold that in the instant case the respondent had committed default because the cheque which was tendered to the appellant, was dishonoured. The other defence is that he started depositing the rent in Miscellaneous Rent Case. The appellant averred in his eviction application that the rent for the months of May, June and July 1975 was payable by the respondent. It is also an admitted position that the eviction application was presented on 2‑12‑1975 and it is also admitted position that respondent started depositing rent in Miscellaneous Rent Case No.198 of 1976, that is, after the default already committed by the respondent. In this view of the matter the respondent had already committed default. It seems that the learned Controller has not adverted to this aspect of the case." We have heard the learned counsel for the petitioner who has mainly urged that the law of pleadings is not strictly applicable to rent control proceedings and therefore, the High Court was not justified in excluding the evidence on pleas not specifically taken in the written statement. We cannot, however, accept this argument. Both parties are required to lead evidence on issues framed by the Rent Controller and as a measure of minimum requirement of the rule of natural justice the parties should have notice of each other's case on facts. In any case the three grounds on which the learned Rent Controller dismissed the ejectment application, are not tenable. The High Court found as a fact that the cheque given by the tenant was dishonoured and no cogent evidence of cash payment was produced. Besides, no plea was taken by the petitioner in his pleadings that he made any cash payment in lieu of the dishonoured cheque. Normally if the cash payment had been made in lieu of the cheque, the same would have been returned to the petitioner before he made cash payment of the same amount. But no such circumstance has been shown from the evidence. As regards the ground that security deposit was adjustable towards the arrears of rent, we have perused the tenancy agreement and we find that the relevant clause clearly stipulates that the amount was repayable at the time of vacating the demised premises. The language of the clause clearly excludes the adjustment of the amount towards the rent arrears. The last ground that prevailed with the Rent Controller is also of no avail to the petitioner, as it has been laid down repeatedly by this Court that the statutory obligation of the tenant is not wiped off merely because the landlord on one or two occasions accepts rent as a matter of grace after the prescribed period for payment either in the agreement of tenancy or the statutory provisions. There is no evidence on the record to show that the landlord in any way agreed to receive rent with intervals.

4. For all the aforesaid reasons we find no merit in this petition which is accordingly dismissed.