1986 PLP 2029 (CLC)

The appellant filed her own affidavit‑in‑evidence besides Abdul Jaleel in support of the eviction application. In rebuttal the respondent filed his own affidavit‑in‑evidence besides affidavit‑in‑evidence of Dr. Muhammad Safi Yousuf Zai. They were cross‑examined by the learned counsel for the respective parties. The learned Rent Controller after taking into consideration the evidence adduced by the parties and taking into consideration the argument advanced by the learned counsel for the parties decided issues 1 and 2 in the negative and dismissed the eviction application vide order, dated 11‑4‑1984. The appellant being aggrieved against the order 11‑4‑1984 of the XVIII Rent Controller, Karachi, has preferred this first rent appeal on the grounds disclosed in the memo of appeal.. Mr. Haroon Ishaq Jangda the learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence. On the other hand Mr. Muhammad Anwar Tariq has submitted that the order is in accord with the evidence‑on‑record. Reverting to the contention of Mr. Haroon that the respondent had committed default in payment of rent from 1‑12‑1979 to 30‑6‑1980 amounting to Rs.3,

500. The respondent filed written statement wherein he denied contents of para. 5 of the eviction application. He also stated therein that he paid a huge amount of fixed deposit to S.M. Younus who inducted him into the premises in dispute. The appellant filed affidavit‑in evidence in support of the eviction application. She repeated the same facts that the respondent had committed default in payment of rent from 1‑12‑1979 to 30‑6‑1980. She replied to a question in cross‑examination and stated "It is not a fact that opponent has been paying rent regularly and never made default". Abdul Jaleel a relative of the appellant filed affidavit‑in‑evidence. He stated that respondent had not paid the rent since December, 1979 upto 30‑6‑1980. He admitted in his cross‑examination that "I have no knowledge, that the applicant was issuing the rent receipts or not. The applicant told me about the non‑payment of rent personally I do not know about them. It is incorrect that due to relationship with the applicant, I am deposing in her favour". As against the above evidence, the respondent filed his affidavit -in‑evidence wherein he stated that "I have paid monthly rent all along these months and so far no rent is due, the monthly rent for the month of April, 1980 was dispatched through money order receipt No. 833, dated 8 3‑1980 and the same was refused by the applicant with the result the monthly rent is being regularly deposited in Court in Miscellaneous Rent Application No. 3173 of 1980". He annexed photostat copy of the money order which was sent in April, 1980. He stated in his cross‑examination that "I sent the rent through two money orders to applicant. First rent was sent through money order in the month of April, 1979. The second money order was sent by me in the month of May, 1979. I cannot say if that money orders were sent by me in the year 1980 and not in the year 1979. I have filed photostat copy of receipt of money order alongwith my affidavit‑in‑evidence. It is correct that in my written statement I have not stated about the tender of rent by two money orders". In the case before me the admitted position is that on 3‑7‑1980. when the eviction application against the respondent was filed before the Rent Controller, the rent of the months of December, 1979 upto June, 1980 was due. It is common ground between the parties that the rent was payable according to English Calendar. The case set up by the respondent in written statement that he was regularly paying rent to the appellant and no rent was due. He started depositing the monthly rent in Court vide Miscellaneous Revision Application No. 3173 of 1980 since April 1980. The case of respondent in his affidavit that he had paid the monthly rent all along these months and so far no rent was due, the monthly rent for the month of April, 1980 was despatched through money order receipt No. 8337, dated 6‑4‑1980 and the same was refused by the appellant with the result that the monthly rent was being depositing in Court in Miscellaneous Revision Civil No. 3173 of 1980. The respondent in his cross‑examination stated that, "It is incorrect that I have not paid the rent from 1‑12‑1979 to 30‑6‑1980". He also said that first rent was sent through money order in the months of May, 1979. He then stated that he cannot say if the money orders were sent by him in the year 1980 or not in the year 1979. He also stated that he had filed photostat copy of receipt of money order alongwith his affidavit‑in‑evidence. The Rent Controller accepted the explanation for the reason that "on the other hand the opponent has deposed in his cross‑examination that he has been depositing the rent since April, 1977. But it was not suggested to him in his cross examination by the applicant that he is not depositing the rent in Court since 1979. In this way the fact has gone unchallenged. Thus it is proved that the opponent has been depositing the rent in Court, since April 1979. Therefore, in view of the deposit of rent by the opponent in Court, he cannot be said to be wilful defaulter." This view of the Rent Controller is based on a misreading of material evidence. I have perused the money order receipt No. 8337, dated 6‑4‑1980. The respondent himself stated in para. 7 of the affidavit‑in‑evidence that the monthly rent for the month of April, 1980 was dispatched through money order receipt No. 8337 dated 6‑4‑1980 The respondent himself admitted that he started depositing rent in Miscellaneous Rent Application No. 3173 of 1980. The Rent Controller arrived at the finding in disregard of a material piece of evidence, which is arbitrary or capricious, then such a finding given by the Rent Controller can be interfered with in this First Appeal. It is apparent that the landlady asserted in her eviction application that the respondent had not paid her rent for 1‑12‑1979 to 30‑6‑1980. She filed affidavit‑in‑evidence and asserted on oath that she did not receive the rent for the disputed period. The burden was discharged by her and the burden was shifted in the respondent_ The respondent explained in his written statement that he paid rent to her. The rent for the month for April was sent by money order. The respondent did not offer any explanation as to why he sent rent by money order for the month of April, 1980, when she was accepting rent from him, The fact that the rent was sent by money order in the month of April, 1980 or deposited in Court after default was committed is of little significance. The tender of rent contemplated under section 15(2) (ii) of the Sind Land Rented Premises Ordinance, 1979 should be within 15 days of the agreement or within 60 days of the rent becoming due. Mr. Muhammad Anwar Tariq the learned counsel for the respondent has contended that the respondent had paid a huge amount of fixed deposit at the time of occupation. The plea was taken in the written statement as well as in the affidavit‑in‑evidence. The learned counsel had also filed an application under section 21(3) of the Ordinance. He also filed receipt of Rs.1,575 issued by S.M. Younus who inducted him in the disputed premises. Mr. Haroon learned counsel for the appellant filed counter affidavit wherein it was stated that the original receipt of fixed deposit cannot be brought on record as it is not a proved document and its validity or genuineness has not been tested by cross‑examination. Mr. Muhamrrad Anwar learned counsel for the respondent has contended that an amount of Rs.1,575 was lying as fixed deposit and that according to the receipt issued by S.M. Younus for this amount it was by way of advance for more than three months. Proceeding on this premises the learned counsel has contended that in the face of deposit of more than three months rent the landlady could not claim any default in the payment of rent, as the amount was to be adjusted towards rent for three months. In Mirza Abdul Aziz Baig v. Mushtaq Ahmed Shaikh 1980 S C M R

834. The Hon'ble Supreme Court while rejecting the contention of the learned counsel for the appellant that the amount of deposit was adjustable observed as follows:‑ "Therefore, the rent of September, had to be paid within fifteen days of the first of September and the rent of October within fifteen days of the 1st of October, 1975 and as admittedly, this was not done, the lower Courts were right in holding that the appellant had failed to pay rent for two months. But, they were further of the opinion that the appellant was in default in the payment of rent for the months and Mr. Mukarim s attempted to defend this finding. We cannot agree with Mr. Mukarim's submission, because the advance rent deposited by the appellant had to be adjusted against the rent due from him, and, therefore, as rightly held by the learned Judge. The appellant was in default in the payment of rent of October, only." In the case of Muhammad Yousuf v. Abdallah P L D 1980 S C 298 the Hon'ble Supreme Court held as follows:‑ "It is true that the appellant had not demanded the return of his deposit on the expiry of his lease and further as the debtor, it was for him to find the creditor therefore, he should have informed the respondent to adjust the arrears of rent against his deposit with the respondent. This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce, if the respondent was evicted for being in debt to the respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly, even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have mo hesitation in exercising our discretion in his favour. We, therefore, set aside the eviction order passed by the three Courts below and allow the appellant's appeal. However, as the appeal turned on a question of law which had not been decided by this Court, we leave the parties to bear their own costs." The amount deposited as security or fixed deposit with the landlady for due performance of the conditions of tenancy, is not adjustable against the arrears of rent. When, however, the agreement under which the security or fixed deposit was deposited has expired and the relations between the landlady and the tenant have come to be regulated by the Ordinance, the security deposit or fixed deposit lying with the landlady would become available for adjustment against the rent due does not exceed the security deposit or fixed deposit amount, the tenant cannot be said to have defaulted in payment of rent I find no force in this contention. The order of the Rent Controller is reversed on this issue. For the foregoing reasons the appeal allowed on the ground of default and the application filed by the respondent is dismissed. However, the respondent is allowed four months time to vacate the premises in dispute. H.B.T. Appeal allowed.