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‑‑‑‑‑ S. 13‑Eviction proceedings‑ Default‑Receipts of payment of rent appearing to have been issued simultaneously with payment of rent and sending of tyro months rent by money order found merely an attempt to create defence to neutralize plea of default Findings of Courts below found erroneous, based on mis-apprecia tion of material evidence on record‑‑Eviction of tenant ordered. .

P L D 1976 Lab. 1052 and P L D 1965 ('4V. P.) Lab, 23 ref.

Muhammad Saddiqae Mazhari for Petitioner,

Habibur Rehman for Respondent.

Date of hearing : 27th May, 1398 ._

This appeal arises out of the judgment dated 28th May, 1978 of the IV Additional District Judge, Karachi (Hamid Ali Mirza) whereby he dismissed the appeal preferred from the order of learned Rent Controller (Shahnawaz A. Awan) dated 3'st May, 1977, rejecting the ejectment application filed by the appellant.

2. The factual background of the appeal is that the appellant Fazil Khan who is the owner of the house No. 435 Block‑14. Naseerabad Federal "B" Area, Karachi, filed ejectment application No. 637/74 on 14th March, 1974 seeking ejectment of the respondent Syed Muhammad Idrees from the said premises on the ground of default in payment of rent for five months at the rate of Rs. 125 per month (from October, 1973 to February, 1974). The application was resisted by the respondent who controverted the plea of non‑payment of rent. The learned Controller after taking into consi deration the evidence adduced by the parties came to the conclusion that the appellant had not made out a case of default and accordingly he dismissed the application. When his order was taken in appeal, the Additional District Judge maintained the order of the learned Controller.

3. Mr. Muhammad Siddiq Mazhari, learned counsel for the appel lant and Mr. Habibur Rebman. learned counsel for the respondent sub mitted their arguments at the bar. The sole point on which they have differed is the default in payment of rent.

4. The appellant's case is that the respondent made default in pay ing the rent for five months i.e. October, 1973 to February, 1974. In support of his case he has examined himself.. The default attributed to the respondent has, however, been vehemently denied by him. According to his counsel, the respondent used to pay the rent every month regularly but the appellant issued receipts late, 2 to 3 months after the payment. To prove his contention, he has relied on seven receipts Exh. 6 to. Exh. 12 available in the Controller's record. It is not disputed by the learned counsel for the appellant that these ‑ receipts were issued by the latter. He however, submitted that the receipts rather support the case of the appellant. Making a pointed reference to the appellant's deposition in the Controller's Court, the learned counsel submitted, that the appellant did not mince matters and clearly stated in his evidence that in the banging of the tenancy the respondent was regular in making payments but he could not maintain his regularity in the subsequent years. He further stated that the receipts were issued as and when the payments were made.

5. In view of the fact that both the parties have placed reliance on the receipts, the fate of the case obviously hinges on interpretation of these documents. It would therefore be necessary to examine the receipts and assess their impact on the case. The last receipt Exh. 12 which is dated 27th December, 1973 shows that the rent was cleared upto September, 1973. Thus the period under dispute is from October, 1973 to the filing of ejectment application (i. e. 14th March, 1974). It was contended on behalf of the appellant that the respondent has been defaulter in respect of this period. On the other hand the learned counsel for the respondent averred that respondent had paid the rent for months of October, .1973, November, 1973 and January, 1974, but as usual the appellant had not issued receipts for the same. According to him the appellant was in the habit of issuing receipts not at the time of payment but late after lapse of 2 to 3 months from the payment. In this connection, as stated earlier, he has referred to the receipts produced by the respondent.

6. Examining the receipts, it would appear that the receipt dated 20th July, 1972 (Exh. 1) is for Rs. 625 and covers the period of five months upto June, 1972, (i. e. February, 1972 to June, 1972). Similarly the receipt dated, 6th November, 1972 (Exh. 9) is for Rs. 375 and relates to the period of three months upto September. 1972 (i. e. July, 1972, August, 1972 and September, 1972). Again the receipt dated 22nd March, . 1973 (Exh. 10) is for Rs. 500 and pertains to the period of four months upto January, 1973 (i. e. October, 1972, November, 1972, .December, 1972 and January, 1973). Still another receipt dated 21st July, 1973 (Exh. 11) is for Rs. 375 and is in respect of three months period upto June, 1973 (f. e. April, 1973, May, 1973 and June, 1973). The last receipt dated 27th December, 1973 (Exh. 12) is for Rs. 375 and reflects the three months period upto September, 1973 (i. e. July, 1973, August, 1973 and September 1973). No doubt it is proved from these receipts that lump sum payment for three to five months has been made under each of the receipts.‑ But I am unable to accept the contention that they provide any proof for their being issued late after the actual payment. In ordinary course it cannot be believed that the receipts would be issued not at the time of payment but 2 to 3 months thereafter. It would be reasonable to presume that the receipts were ‑issued simultaneously with the payments they had acknowledged. Of course the presumption to this effect is rebut table. But the question is what evidence the respondent has produced to rebut the presumption. In this connection the learned counsel for the respon dent has placed reliance on the money order form produced by the respon dent as Exh. 13 in the Controller's file. The learned counsel submitted that as is clear from this document, on the appellant's refusal to accept the rent for the months of February, 1974 and March, 1974, the respon dent had to send it by the money order but that too was not accepted by the appellant. He further averred that the appellant was also sounded by the endorsement on the money order form that he should issue receipts for the payments already made for the months of October, 1973, November, 1973, December, 1973 and January, 1974, which he had not issued so far. The learned counsel however, frankly admitted that the money order was sent after institution of the ejectment proceedings. His only explanation in this regard was that the respondent was unaware of the ejectment application when he sent two months' rent by money order in view of his plea that he used to pay rent every month regularly, he had to explain why he did not send the rent for month of February, 1974 which was refused by the respondent immediately after his refusal by the money order and why he waited for the rent for the month of March, 1974 to become due before sending the money order. There being no explana tion in this regard, by the time he sent the money order some time in the beginning of April, 1974, he was clearly in default so far the month of February, 1974 was concerned.

7. The contention of the learned counsel for the appellant with regard to the money order was that it was nothing more than a rule to cover the default on the part of the respondent. He further submitted that in the beginning of the tenancy the respondent was regular in dis charging his liability for payment of the rent but from February, 1972 onward he failed to keep his regularity. In support of his contention he made reference to the receipt Exh. 7 dated 9th December, 1970, which relates to the month of December, 1970. It is obvious that not only the payment was made in time but also the receipt was issued simultaneously with the payment. The next receipt Exh. 8 which is dated 20th July, 1972 is in respect of the period from February, 1972 to June, 1972. There is however no receipt relating to the period preceding February, 1972. In other words the respondent has not produced any receipt for the period between January, 1971 to January, 1972. There is also no receipt pro duced for the months of February. 1973 and March, 1973. 1 am inclined to agree with the view that omission to produce the receipts for these months would raise a presumption that during this .period receipt was issued simultaneously with the payment for each month separately, as was done in the case December, 1970. Thus the appellant's version is strengthened to the effect that in the early period of the tenancy, the respon dent was regular in paying the rent. It seems after he became irregular in making the payments the appellant showed him indulgence and allowed him to pay the rent for more than a month collectively. This explains how each of the receipts produced by the respondents and referred to above covers the period for more than one month. 1 cannot believe that though the rents covered by these receipts were paid regularly on time, the issuance of the receipts was postponed until after two to three months from the payment. The evidence of the respondent and his only witness in this behalf does not inspire confidence. The findings of the two lower Courts are clearly erroneous and are based on mis-appreciation of the material available on record. I have no doubt in, my mind that the receipts produced by the respondent do not advance his case. They appeared to have been issued simultaneously with the payment and not at the later stage as has bean averred by the respondent. The sending of two months' rent by money order was merely an attempt to create defence to neutralize the plea of the default.

8. In view of the above reasoning, I am convinced that the receipts were issued as and when the payments were made. Since this is not a case of doubt, the two authorities: P L D 1976 Lah. 1052 and P L D 1965 (W. P.) Lah. 23 cited by the learned counsel for the respondent on the ‑point when definite conclusion cannot be drawn as to the truthfulness of the case of either party, are inapplicable in the instant case and are not of any help. to him.

9. The upshot of the above discussion is that the respondent has defaulted in paying the rent for the period from October, 1973 to February, 1974, and has consequently rendered himself liable for ejectment. Accord ingly while allowing the appeal with no order as to costs, the impugned orders of the two Courts below are hereby set aside. It is further directed that the respondent will vacate the disputed premises and hand over the possession thereof to the appellant within three months ofl this order.

M.Y.M.

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