Find a Lawyer

First Rent Appeal No.76 of 1983, decided on 29th November, 1984.

Sind Rented Premises Ordinance (XVII of 1978)--

---Ss. 14, 15 & 21--Evidence Act (I of 1872), S.138--Ejectment for default and personal requirement--Statement of landlord that there was default for specified period remaining unchallenged in cross-examina tion--Grounds of default, held, proved and finding of Rent Controller was in consonance with evidence.

Hashim Khashkeli for Appellant.

Muzafferul Haque for Respondent.

Date of hearing: 29th November, 1984.

This first rent appeal arises out of the order, dated 23-9-1982 passed by the Senior Civil Judge and Rent Controller, Shahdadpur, whereby the eviction application was allowed and appellant was directed to hand over vacant possession of the house in question within ninety days.

The briefs which give rise to this appeal are as follows:-

The respondent is owner of premises bearing City Survey No.795 Ward 'B' a house situated in Kishanpura, Sawai Road, Shahdadpur and the appellant is tenant in respect thereof at the monthly rent of Rs.25 which was enhanced to Rs.500 per month.

The respondent filed ejectment application on the ground that he was due to retire and tie required the premises for his personal use and also on the ground of default from 15-10-1977. The appellant resisted the ejectment applic6tion and averred that the respondent was not requiring the premises nor his use. It was an excuse for enhancement of rent. It was further averred that Iqrarnama, dated 15-9-1977 alleged to nave been executed by the appellant was got executed by coercive mean. The respondent being in police service brought army pressure to cause harassment for getting ejectment forcibly and it was under the threat, the respondent had been able to obtain the said agreement executed. The appellant, filed suit fort declarational injunction which was withdrawn by him.

The learned Rent Controller after recording evidence and after hearing the learned counsel for the parties allowed the eviction application on the ground of default only. The appellant being aggrieved with the aforesaid order, dated 23-9-1982, -has preferred this appeal on the grounds mentioned in the memo of appeal.

Mr. Hashim Khashkeli has contended that the learned Rent Controller erred in holding the appellant as a defaulter.

On the other hand Mr. Muzaffarul Haq, the learned counsel for the respondent has contended that the order of learned Rent Controller is legal and proper and has. not erred in holding the appellant as defaulter.

I have gone through the affidavit of the respondent, and the cross-examination and I find that the statement of the respondents that there was default for the period in question remained unchallenged in the cross-examination. No question was put to suggest that the rent for the above period was tendered to him it is true that in the cross-examination a question was put to him which was denied. It is advantageous to reproduce the reply "it is not a fact that I refused to receive money order but my son informed me that postman has come but I was not present in my house." The appellant in his affidavit has averred that he sent Rs.332 to the respondent on 20-2-1980 which was refused. It is averred in the memo. of appeal that the tenant had installed sui gas on which he spent Rs.853. It was agreed that the appellant may adjust this amount towards rent. This amount respondents that rent for 34 months and had covered period from March, 1978 to November, 1978. The explanation in the appeal is that the respondent being in service had always remained out of Shadadpur and as such the rent beyond December, 1978 could not be paid. It is clear to me that upon asserting in the evidence that the respondent had not received the rent for the premises in question for the disputed period, the respondent had successfully discharged the burden of proof and the onus was shifted to the respondent. The respondent did not state that he paid the rent for the disputed period to the respondent but stated that money order was sent in February, 1980. It seems default has already been committed by him. I am of the view that since the statement of the respondent has not been challenged in the cross-examination, in, my view it will not be just and proper to re-open the question o fl default by allowing the tenant to challenge the agreement, dated 15-9-1977. The suit for declaration that the agreement was got executed by coercion was withdrawn. In these circumstances the agreement cannot be challenged at this late stage.

I am of the view that the ground of default stands proved and,, therefore, the finding of the learned Rent Controller seems to be in consonance with the evidence.

For the aforesaid reason the appeal was dismissed with no order as to costs by short order, dated 29-10-1984. However, I allow six months time on the condition that appellant shall deposit arrears of rent amounting to Rs.1,375 within one month from 29-10-1984 and shall continue to deposit rent at the rate of 85.2.5 on or before 10th of each succeeding month failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of the above period of six months, the learned Rent Controller shall issue writ of ejectment without any notice to the appellant.

A.A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.