1992 PLP 1029 (MLD)

The facts out of which this appeal tiled under section 21 of the Sindh Rented Premises Ordinance, 1979, arises are simple which might be summarized below.

2. The respondent is the owner/landlord of the building known as Islam Manzil situated at Muhammad Shah Street, Jodia Bazar, Karachi. The appellant is the tenant of respondent in respect of commercial premises, being tenement No.79 of this building at the rate of Rs.300 P.M. plus Rs.10 P.M. as additional tax. It. is alleged that the appellant defaulted in payment of rent with effect from March, 1986 and he was in arrears till .27‑8‑1986 when the application for his eviction was filed on the aforesaid ground.

3. The appellant has resisted his ejectment mainly on the ground that the default, if any, was contributed by the respondent who was in the habit of collecting rent in lump sum and in order to create a ground he avoided to receive the rent for this period, when offered to him. The liability to pay an additional amount of Rs.10 P.M. as tax was also questioned.

4. The parties went to trial on the following issues:‑ (i) Whether the opponent has committed default in payment of rent from the month of March, 1980 till riling of this rent case, i.e. 27‑8‑1986? (ii) What should the order be?

5. To prove his case the respondent tendered his evidence through affidavit (P.W.1), while in rebuttal the appellant riled his affidavit‑in‑evidence (D.W.1) and that of Zulifqar Ali (D.W. 2).

6. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided issue No.1 against the appellant and as a result thereof directed his eviction from demised premises within.60 days. This order, dated 14‑2‑1988 is the subject‑matter of this appeal.

7. I have heard Mr. Zafar Hadi Shah, learned counsel for the appellant and Mr. H.A. Rahmani, learned counsel for the respondent. 1 have also gone through the record of this case carefully.

8. Admittedly there is no agreement of tenancy between the parties within the ‑meanings of section 5 of the Sindh Rented Premises Ordinance, 1979. The tenancy is, however, regulated by the terms and conditions printed at the back of rent receipts issued by the respondent. Appellant Ibrahim has himself admitted this position in the following words:‑ "It is a fact that I received the disputed premises on rent on the terms and conditions mentioned in Exh.A/2." According to terms of lease as mentioned on (Exh‑A/2), the appellant had undertaken to pay any additional water charges, or any other taxes, etc., if levied, along with the rent which was fixed at Rs.300 P.M. The appellant had been paying this additional amount of Rs.10 P.M. It, therefore, does not lie in his mouth to say today that he was not liable to pay this additional amount.

9. It is also the case of the appellant that the respondent used to collect rent periodically at his own convenience and the default, if any, was contributed by him. He has placed reliance upon two receipts (EXhA/1) and (Exh.0/1) in support of the defence set up by him. The first receipt (Exh.A/1) is in respect of rent for the months of April to June 1983 and the other relates to the rent for the months of June to November 1985. There is, however, clear evidence on record to prove that the respondent who himself collects the rent from all the tenants was visiting every month for the said purpose. The appellant has himself admitted this position in the following words:‑ "It is a fact that applicant Muhammad Ilyas used to receive rent personally. It is a fact that for this purpose applicant used to come in the building every month:"

10. The respondent as his own witness (P.W.1) made it clear that he used to collect rent himself every month and except the three tenants including the appellant the rest were regular in making payment. He has placed on record number of receipts in respect of other tenants (ExhA/5 to ExhA/22) to support his plea. To rebut this strong oral and documentary evidence the appellant has simply pleaded that the responded avoided to receive the rent for the months of March to July 1986, when offered to him. He, however, tried to improve his case in his cross‑examination by a stating as under:‑‑ "I had paid the rent of March, 1986 to the applicant in the month of April, 1986. The applicant received the rent from me for the month of March 1986, but he did not pass on rent receipt to me. I paid rent for April 1986 to the applicant in May 1986. The applicant did not issue rent receipt to me. I paid rent of May 1980 in June 1986, and the rent of June 1986 in July 1986. I paid rent for July 1986 in August 1986:"

11. On the face of the record this plea is inconsistent with the defence set up by the appellant in his written statement and in his affidavit‑in‑evidence. The appellant who was a defaulter has tried to cover up the same by taking inconsistent stands at different stages. His contention that the respondent had deliberately created difficulties for him by not accepting rent from him is not borne out from the record. Consequently the rule laid down by the Supreme Court in the case of Inayat Ullah v. Zahoor‑ud‑Din and another, reported in 1987 SCMR 1313, has got no application to the facts of the present case. It may be added that the appellant did not tender rent through money order immediately after the receipt of notice sent by the respondent and he remitted the same after the ejectment application was filed.

12. The appellant has also tried to introduce irrelevant issue about the dangerous condition of the building and the desire of the respondent to: reconstruct it, with a view to side‑track the real issue of default. The perusal of the record shows that the building where the disputed premises is situated ha ' been declared as dangerous by the competent authority and according to the respondent 67 tenants have already vacated their respective tenements. This fact, however, did not absolve the appellant to pay the agreed rent.

13. Admittedly, the tenancy was from month to month and consequently acceptance of rent in lump sum on few occasions in past cannot absolve the appellant from his liability to pay rent regularly. The cases reported as Mrs. Alima Ahmad v. Amir Ali (PLD 1984 SC 32) and Shaharyar Ali Patudi and 3 others v. Messrs Decora Furnisher‑ (PLD 1985 Kar. 47) are self‑explanatory.

14. The appellant was thus a defaulter despite the statutory allowance and once the landlord proved the essentials for ejectment the Rent Controller had to order his ejectment. No exception can, therefore, be taken to the finding of the Rent Controller.

15. In the result the appeal fails and is dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises. H.B.T./I‑177/K Appeal dismissed.