1986 PLP 1646 (MLD)

Date of hearing: 8th May, 1986. This rent appeal has been filed by the tenant against the order of ejectment, dated 8‑5‑1983 passed by the Rent Controller, Karachi, allowing Ejectment Application No.1977 of 1980 filed by the respondent/ landlord. The ejectment has been allowed on the ground of default. I have heard Mr. Muhammad Ashraf Bhatti, learned counsel ‑for the appellant and Mr. Sohail Muzaffar, learned counsel for the respondent/ landlord.

2. Ejectment application had been filed on 29‑3‑1980. In the ejectment application it was averred that two portions were let out by the respondent to the tenant by two separate agreements both, dated 10‑1‑1979 for eleven months at different rates of rent. According to the landlord, the rent of the premises, subject‑matter of Ejectment Case No.1977 of 1980 was Rs.40 per month. It was averred in para. 3 of the ejectment application that the appellant was habitual defaulter and had not paid rent from 1‑12‑1979. A written statement was filed by the appellant denying, the allegation of default and it was averred that the rent was first Rs.40 per month and then increased to Rs.60 per month. It was denied that the appellant was a defaulter from 1‑12‑1979 or that he was a habitual defaulter. The Rebt Controller, vide his order, dated 8‑5‑1983 held that the rate of rent was Rs.140 per month and not Rs.60 per month and finding the appellant a defaulter, ordered his ejectment.

3. Learned counsel for the parties have taken me through the R&P of the Rent Controller, which is available. Ejectment Case No.1978 of 1980, which was in respect of the other room rented out by the respondent to the appellant and the instant Rent Case No.1977 of 1980 were tried together and evidence was recorded in Rent Case No.1977 of 1980. The tenancy agreement in respect of room in question has been produced as Exh. 12 by the respondent. It is, dated 10‑1‑1979. According to the appellant, initially the agreed rent was Rs.40 and later on it was increased to Rs.60 per month. Reference may be made to the legal notice, dated 1‑3‑1980 (Exh. 7j addressed by the Advocate of We respondent to the appellant. The notice refers to two residential premises and reference was made to the two tenancy agreements both, dated 10‑1-1979. It was pointed out by the learned counsel for the appellant that in this legal notice, dated 1‑3‑1980 no reference or grievance has been made at all about the default, if any, or that the rent had not been paid, w.e.f. 1‑12‑1979. In the circumstances according to the learned counsel for the appellant, an inference may be drawn that there was no default. In, the facts of this case, the contention of the learned counsel for the appellant, has substances. A perusal of Exh. 7 legal notice, dated 1‑3‑1980, shows that in the said legal notice various grievances are made, by the respondent ,against the appellant about nuisance, using the premises for the purpose other than that for which it was let out and, picking of quarrels by the appellant with the respondent but nothing is mentioned about default. If a legal notice was given, in which allegations were made against the tenant and tenant was also threatened that ejectment proceedings would be filed against the tenant, and there .had been default in the payment of rent, it was expected of the landlord that h .A would have made grievance about the default in the payment of rent also. As noticed earlier, no such grievance has been made in the lega' notice, dated 1‑3‑1980 (Exh.7). Then another factor, which goes in favour of the appellant of the point of the default, is the renewal of tenancy, which appears at the back of Exh.

12. A perusal of the front page of Exh. 12 show, that the entire tenancy agreement is typed on the front page and the parties have also signed. On the back side of the tenancy agreement;) dated 10‑1‑1979, following lines are typed: "This agreement of tenancy is renewed further for (3) months, with effect from 1st January, 1980 to 31st March, 1980. In witness whereof the parties have agreed to set and subscribed their respective hands at Karachi, this day, month and year first abovementioned." After this, the parties have signed this endorsement. Apparently this renewal of endorsement in the tenancy agreement was made on or about 1‑1‑1980. If there had been default previously, perhaps some reference about default would have been mentioned in the renewal agreement. This renewal agreement shows that the tenancy agreement is renewed for another three, months. This perhaps show that this renewal agreement was made on or about 1‑1‑1980. If rent had not been paid for December, 1979, perhaps the renewal agreement would have referred to such arrears. There appears to be no default in the payment of rent for the period prior to 1‑1‑1980. The notice, dated 1‑3‑1980 (Exh.7) has already been referred to, which does no make any reference or grievance about the default in the payment o rent. The Jejectment application was filed on 29‑3‑1980. The tenancy agreement, dated 10‑1‑1979 had expired and even if the renewal is taken into consideration and the case of the respondent is accepted that the tenancy agreement was still in force, it is an admitted position that the time for payment of rent is not fixed by the tenancy agreement. In the circumstances, the second part of section 15 (21(ii) of the 197 Rent Ordinance is applicable, according to which, an order for ejectment on the ground of default can be passed by the Rent Controller in case the tenant has failed to‑ pay rent within 60 days after the rent ha become due for payment. In the legal notice, dated 1‑3‑1980 (Exh.7) no grievance was made that there had been any default in the payment of rent. An inference can be drawn that the rent upto February, 198 had been paid by the appellant or else the respondent would have made a reference about the non‑payment of the rent in the legal notice dated 1‑3‑1980. Even otherwise, if renewal agreement is taken into consideration it is effective from 1‑1‑1980. From this an inference can be drawn that the rent had been paid of )east upto December. 1979 or else either renewal agreement would not have been executed by the respondent or in the renewal agreement there would have been some reference to the default. It appears that the rent upto December, 1979 at least had been paid and in respect of, the rent payable for the month of January, 6 days had not expired when the ejectment application was filed on 29‑3‑1980. It may be observed there that after the legal notice, the appellant started tendering the rent by money order. Mr. Sohail Muzaffar, learned counsel for the respondent, had relied on the counterfoils of the rent receipt book. Rent Receipt Book containing counterfoils of the rent receipts does not have the signatures of the appellant on any of the counterfoils. In the facts and circumstances of this case, on the basis of these counterfoils, which do not have the signatures of the appellant, it had not been established that rent had only been paid upto November, 1979.

4. After a perusal of the record including ‑the pleadings and evidence adduced by the parties, 1 am of the view that the learned Rent Controller came to the wrong conclusion that the rate of rent mentioned in the tenancy agreement as Rs.140 per month was the rent of the premises in question. Even the respondent nowhere claimed that the rent was Rs.140 per month. He had claimed rent to be Rs.40 per month. The version of the appellant appears to be correct that 'is initially it was Rs.40 and later on it was increased to Rs.60 per month. The aforesaid discussion on the evidence also shows that there was no default on the part of the appellant in the payment of the rent.

5. As a result, First Rent Appeal No. 547 of 1983 is allowed and the order, dated 8‑5‑1983 of the Rent Controller in Rent CAse No.1977 of 1978 is set aside. There will be no order as to costs. H.B.T Appeal allowed.