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First Rent Appeal No. 752 of 1984, heard on 8th October, 1984.

---Ss. 15 & 21--Ejectment--Default in payment of rent--Tenant denying allegation--No specific plea taken by tenant about payment of rent in written statement/cross-examination--Belated application to produce documentary evidence of payment left undecided by Rent Controller--Such irregularity having caused no material prejudice to appellant's case, ejectment order maintained in appeal.

Hassan Jaffer for Appellant.

Nemo for Respondent.

Date of hearing: 8th October, 1984.

The respondent filed an ejectment application against the appellant on the grounds that he has committed default in payment of rent from September, 1979 to February, 1980, and further that he has caused damage to the property. The appellant denied these allegations. However, the learned Controller held that no damage has been caused, but on issue relating to the default finding was given in the affirmative. The defence of the appellant throughout has been that he has paid the rent for the months of September, 1979 to January, 1980 therefore, the entire burden was upon him to establish this fact.

Mr. Hassan Jaffery the learned counsel for the appellant contended that the rent for September, 1979 to February, 1980 was paid in advance through a cheque dated 8-9-1979 which was encashed by the respondent. From the written statement, it seems that such a specific plea has not at all been raised. It is only vaguely stated that the appellant had paid the rent all along except the months of February, and March, 1980 which the landlord refused to receive. Again in cross-examination of the respondent no such question was put to him. In the affidavit of evidence filed by the appellant there is no such statement that the rent was paid through a cheque which had been encashed by the respondent. The respondent was examined on 27-7-1983, therefore, it was clear that he denying the receipt of rent for that period but the appellant remained silent in his affidavit of evidence.

Mr. Hassan Jaffer the learned counsel has contended that on 27-3-1983 the appellant had filed an application seeking permission to produce documents to prove the payment of rent through a cheque which included a letter from the National Bank of Pakistan dated ........ stating that Cheque No. 184648, dated 8-9-1979 was encashed on 8-9-1979. It may be stated at the outset that his application was filed on 27-3-1984 and not on 27-3-1983 as mentioned in the application. Surely it was not possible to file this application in 1983 as the document sought to be filed in Court is dated 1984. Therefore, this application was filed at belated stage after a period of one year of the examination of the respondent. If this evidence was available with the appellant, from the very beginning, then this fact should have been stated in the written statement, in the affidavit of evidence, and such question should have been put to the respondent in cross-examination. Even the bank certificate on its face value does not improve the case of the appellant. It has not been stated in the certificate that whether the cheque was a crossed-cheque and was encashed through Bank in the account of the respondent. I had specifically asked Mr. Hassan Jaffer to ascertain whether the cheque was a crossed-cheque, but from his reply it can be deduced that it was merely a bearer cheque. Bearer cheque can be issued in the name of anybody, and can be encashed by any person, and unless the cheque is produced and the party is confronted with the signature on that cheque the fact of payment cannot be proved. In these circumstances, the appellant has failed to establish that rent for this period has been paid.

It is the grievance of the learned counsel for the appellant that the application dated 27-3-1984 was not decided by the learned Controller. The appellant had filed his affidavit of evidence on 7-12-1983, he could have very well filed the affidavit of the Bank Manager alongwith his affidavit. He was cross-examined on 6-3-1984, but till that time when he closed his side he did not produce, such material evidence, which was the only defence in his case. In these circumstances, although the, learned Controller has committed some irregularity in not deciding the application, in my opinion, it has not materially prejudiced the appellant's case. The appeal has no force, and is therefore, dismissed in limine. The appellant is allowed four months time to vacate the premises.

M. I. Appeal dismissed.

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