1988 PLP 1061 (MLD)

This First Rent Appeal under section 21 of Sind Rented Premises Ordinance is directed against the order dated 14th January, 1985, of IXth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the rent application of the landlord Zakir Ali. Rent case under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, was filed on the grounds of default, damage to the premises. The respondent, Shaukat Ali is a tenant in respect of Shop No.9/3, Commercial Area, Liaquatabad, Karachi. The rate of rent is disputed by the respondent. The default is claimed from May, 1978, to the filing of the rent case i.e. April, 1979. Written Statement was filed in which respondent/tenans stated that rate of rent is Rs.100 per month and not Rs.200. Before the Rent Controller, appellant Zakir Ali was examined on behalf of respondent. He examined himself and one Saeed Ahmed in support of the case. MrA.M.Shah appearing for the appellant contended that Respondent has committed default and has not been able to produce any documentary evidence. It is contended by the learned counsel that in October, rent was tendered' by money‑order, which the appellant refused because default was already committed. It is argued that rate of rent is Rs.200 as respondent sent the money‑order in October of the same amount. He has referred to the cases reported in P L D 1982 (S C) 465 and submitted that rent was enhanced from Rs.100 to Rs.200 in the month of February, 1978. Mr.K.M.Nadeem appearing for the respondent argued that from May, 1978, appellant stopped issuing rent receipts with mala fide intention so as to make out the case for default and he promised to issue the rent receipts later. It is submitted that evidently on refusal to receive the money‑order, the respondent started depositing rent in Miscellaneous Rent Application No.5806 of 1978. It is argued that rent for two months at the rate of Rs.100 was sent by money‑order which also was refused by the appellant, therefore, the rent was continuously being deposited in Miscellaneous Rent Application. Appellant, Zakir Ali in his affidavit‑in‑evidence has stated that rent from May,1978, was not paid and respondent has demolished the wall between Shops Nos.9/3 and 9/8 which belongs to his father‑in‑law and amlagamated both the shops. In his cross‑examination, it is stated that respondent is a tenant of the shop since February, 1977, and tenancy agreement was not executed in writing and rent is Rs.200 per month. He has stated that it is incorrect to say that rent of October and November, 1978, was only due against the respondent. This is a case of the appellant in cross‑examination that rent was due for the months of October and November, 1978. Respondent, Shaukat Ali in his evidence stated that initially the premises were rented out at the rate of Rs.80 per month with effect from January, 1977, but subsequently the rent was enhanced to Rs.100 per month. In support, he has produced receipts Ex.0/1, Ex.0/2 Ex.0/3, and Ex.0/4, which show that rent was Rs.100 per month. These receipts have not been denied by the appellant. Shaukat Ali has stated that he paid the rent to the appellant upto September, 1978 and holds receipts upto January, 1978. Thereafter, the appellant received the rent but did not issue any receipt and since October, 1978 he is depositing the rent with Nazir. He has stated that appellant demanded the rent at the rate of Rs.200 per month in February, 1978, which was not justified and not accepted by him. The appellant accepted the rent for February, March, April, May, June, July, August and September, 1978 and promised to deliver the receipts on the note book but later on refused to do so with mala fides. Therefore, he sent the money order which was also not accepted by the appellant. He produced the money order coupon Ex.0/5. It is stated that common wall between the two shops was removed by the appellant himself as Obaidur Rehman was the previous owner of the disputed shop. In support, he has produced the Rent Receipt of Obaidur Rehman as Exs.0/8 and O/9. Witness, Saeed Ahmed stated that he was doing business in the locality where respondent was carrying on his business. The respondent is paying rent at the rate of Rs.100 per month and since February, 1978, appellant declined to accept the rent from the respondent and demanded the enhanced rent at Rs.200 per month and as such dispute was brought to his notice when some other neighbouring shopkeepers were requested to intervene and settle the dispute but the appellant did not agree. He has stated that father-in‑law of the respondent was in occupation of the Shop No.9/8, and he being the owner of the said shop had taken the disputed shop on rent and with consent of the appellant, Obaidur Rehman removed the in‑between common wall. Shaukat Ali, respondent has not removed the wall. The affidavit‑ of Muhammad Ismail was filed but he was not produced in cross‑examination. The case of appellant at the time of the argument is that rent was enhanced by the appellant from February, 1978, from Rs.100 to Rs.2W. In the rent application as well as in the evidence of Zakir Ali, it is nowhere stated that he enhanced the rent from February, 1978. It is only stated that rate of rent is Rs.200 per month. The respondent has produced the rent receipts upto January, 1978, that rate of rent was Rs.100. the appellant has submitted that respondent has sent money‑order for Rs.200 being the rent of one month, therefore, the rate of rent is Rs.200. Ex.O/5, is a money order coupon for Rs.200 but nowhere it is stated that it was a rent for one month or two months and case of respondent is that it was rent for two months i.e. October, and November, because this money- order was sent on 4th December, 1978. Shaukat Ali in his cross‑examination has stated that he has sent rent bf September and October, 1978, Ex.0/5, and he mentioned in Ex.0/1, that it was the rent of previous month. It is not clear but he admitted in para.No.2, of the application that he had paid the rent to the appellant upto September 1978. The Advocate for the appellant has relied on this contradiction. I do not agree because in the rent application or in the evidence, it is not the case of the appellant that rent was enhanced froth Rs.100 to Rs.200 but is only stated that rate of rent was Rs.200 whereas there is sufficient documentary evidence that premises were rented out according to the agreement at the rate of Rs.80 and rent was enhanced to Rs.100 for which receipts have been produced. The appellant could have easily said that rent was enhanced from Rs.100 to Rs.200 in both the documents. In these circumstances, the Rent Controller, has rightly come to the conclusion that rate of rent is Rs.100 per month and I have no reason to disagree with the Rent Controller on this point. Now I come to the default in payment of rent, from May, 1978 to the filing of the rent application. Appellant examined himself and stated that respondent has not paid the rent to him from May,1978. The respondent in his written statement denied this .allegation and stated that appellant with ulterior motive and mala fide intention retained the rent receipts from March, 1978, uptu September, 1978, to create false ground of default. In affidavit‑in‑evidence, Shaukat Ali in para. 2 has clearly stated that he paid the rent to the appellant upto September and holds the receipts upto January, 1978, thereafter appellant did not issue the receipts. This is an important contradiction between the two documents. On the one hand, he stated that receipts were not issued from March, on the other hand, he states that he holds the receipts upto January, 1978. The respondent has produced the rent receipts upto January, 1978, paid in February. Whatever the position may be but it is an admitted fact that whenever the rent was tendered, the receipt on plain paper was being acknowledged by the respondent and such receipts upto January, have been produced in support of the contention. Thereafter, no receipts have been .produced. Therefore, the burden lies on the tenant to establish that the rent was being paid every month. In my opinion, there is no evidence to show that rent was paid and receipts were not issued. There is only a word of the respondent in this respect. Had it been so, he could have sent the rent by money‑order or deposited m Miscellaneous Rent Application as he did in October, 1978. The Rent Controller has dispelled the plea of the appellant on the ground that he has failed to produce the counterfoil of the Rent Receipts in support of the case. It may be mentioned that Rent'', Receipts produced by the respondent Ex.0/1 to Ex.0/4, are on plain papers and there are no printed rent receipts of which counterfoil has to b: kept. He has over‑looked this fact. I am of the view that respondent has not been able to discharge his burden on payment of rent from May, 1978 to September, 1978. I have also considered another aspect that respondent being a statutory tenant can get some grace period of 60 days but in spite of that rent of May which was due in August, 1978, even then there is a default. On this issue. I reverse the findings of the Rent Controller. There is an allegation that respondent removed the wall of the shop. During the arguments, MrA.M.Shah candidly admitted that the removal took place in the year, 1977, when respondent was inducted as tenant. On the other. hand, there is an evidence that previous tenant who is father‑in‑law of the respondent, namely, Obaidur Rehman, with the consent of the appellant removed the wall. The Rent Controller has rightly decided this issue m favour of the respondent/tenant. The upshot of the above discussion is that appellant has been able to prove the default as stated above and on this only issue, I set aside the order of the Rent Controller and direct the respondent to hand over the vacant possession of the premises to the appellant. This appeal is partly allowed on Issue No.2. The respondent is an old tenant of 10 years old. I, therefore, grant him six months time to vacate the premises with these observations. appeal is allowed with no order as to costs. M.Y.H./Z‑50/K Appeal partly allowed,