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First Rent Appeal No. 137 of 1985, decided on 25th January, 1986.

‑‑‑Ss.15(2) (ii) a 21‑‑Eviction of tenant‑‑Wilful default‑‑Proof‑‑Wilful and deliberate default committed by tenant in payment of rent having .been proved by unrebutted evidence on record, Rent Controller, held, rightly‑ a‑allowed eviction application of landlady on ground of default.

Nazir Ahmad Siddiqui for Appellants.

Muhammad Hanif Khudai Ansari for Respondent.

Date of hearing: 15th January, 1986.

This First Rent Appeal is directed against the order, dated 28‑1‑1985 passed by the Xth Senior Civil Judge and Rent Controller, Karachi whereby allowing the eviction application filed by the respondent and directing the appellants to hand over the vacant possession of the shop in case to the respondent within two months from date of the order.

The facts which give rise to this appeal are that the respondent is an owner and landlady of shop situated on Plot No.25‑RC‑IV, Ali Budha Street, Gazdarabad, Ranchore Lines, Karachi and Anwar Beg was tenant in respect thereof at the monthly rent of Rs.17. The respondent filed eviction application No.1765 of 1971 on the grounds of (a) default fox‑ the period 1‑10‑1966 to 31‑7‑1971 amounting to Rs.748, (b) bona fide need for her grown up sons, and, (c) conversion and use of the shop in case as residential premises. The original tenant filed written statement and resisted the eviction application. During pendency of the eviction application, he died on 1‑6‑1973. After his death, his legal representatives were brought on record.

The respondent filed an affidavit‑in‑evidence of Muhammad Hail in support of the eviction application. In rebuttal the appellants filed an affidavit‑in‑evidence of Nasir Baig eldest son of the original tenant. They were cross‑examined by the learned counsel for the respective parties.

The learned Rent Controller after taking into consideration the eviction adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.1 in the affirmative and issues Nos.2 and 3 in the negative and allowed the eviction application only on the ground of default vide order, dated 28‑1‑1985.

The appellants being aggrieved against the order, dated 28‑1‑1985 of the Xth Senior Civil Judge and Rent Controller, Karachi, has preferred this first rent appeal on the grounds mentioned in the memo. of appeal.

Mr.Nazir Ahmad Siddiqui, the learned counsel for the appellant has contended that the order of eviction is based on surmises and conjectures and finds no support from the evidence on record.

On the other hand Mr. Muhammad Hanif Khudai Ansari, the learned counsel for the respondent has submitted that the order of eviction is in accord with the evidence on record and finds support from the evidence on record.

I have taken into consideration the arguments and have also gone through the impugned order. I have also perused the record of the learned Rent Controller with the assistance of the learned counsel for both the parties.

I see no merit in the contention. The respondent in para. 3 of her eviction application averred that the predecessor‑in‑interest of the appellant was in arrears of rent from 1‑10‑1966 upto 31‑7‑197) amounting to Rs.748 and confirmed wilful defaulter. He made wilful default in the Miscellaneous Rent Application No.2 of 1367 filed by him. The original tenant filed written statement. He denied contents of para. 3 of the eviction application. He stated therein that the respondent was on enimical terms with him. He further stated that "because of enmity, the applicant failed to collect rent and ultimately the same was deposited in Court. The upto date payment of rent has been made in Court and there is no arrears against the opponent.".

The duly constituted attorney of the respondent filed affidavit -in‑evidence in support of the eviction application. He reiterated the same facts in his affidavit‑in‑evidence. He also stated therein that the original tenant committed wilful default in rent case No.2 of 1967. It is pertinent to note that even the attorney was cross‑examined but no suggestion was made to him that the original tenant was not a defaulter.

In rebuttal the son of the original tenant filed and affidavit‑in-evidence. He stated therein that his father and after his death he had been depositing rent regularly without any default. He also stated that rent receipts and rent account already filed in the Court.

The Nazir submitted his report, dated 29‑4‑1972. It is advantageous to reproduce the same which is as follows:---

The original tenant filed rent account on 24‑11‑1972. I perused the same. According to that rent account deposited arrears of rent upto 20‑7‑1968 vide Receipt No.2021, dated 20‑7‑1968 Rs.260. It is pertinent to note that Miscellaneous Rent Application No.2 of 1967 was filed on 2‑12‑1967. This application was granted on 26‑2‑1968 and he was allowed to deposit Rs.221. But he did not deposit the amount on 26‑2‑1968. He deposited Rs.260 on 20‑7‑1968 after lapse of five months. On 17‑11‑1981 the appellants filed objections to application under section 16(2) of the Sind Rented Premises Ordinance 1979 and stated therein that out of Rs.2,958. Rent for 174 months, they deposited a sum of Rs.1,147 as per Nazir's reports, dated 29‑4‑72 and 26‑7‑1977. As per Nazir's report, dated 16‑2‑1982 that the appellants and, or the original tenant did not deposit any rent in Miscellaneous Rent Application No.2 of 1967. According to this report the appellants deposited Rs.260, vide receipt No.2021 on 20‑7‑1968. This payment pertains to arrears of rent upto 20‑7‑1968. After 20‑7‑1968, he deposited Rs.34 vide Receipt No.748, dated 9‑10‑1968. This clearly shows that no payment was deposited in August or September, 1968. He deposited Rs.34 on 21‑11‑1968 vide, receipt No.10106. It seems that the original tenant was not regular in depositing rent as he asserted in the written statement. It seems that the original tenant committed wilful default.

It seems that the learned Rent Controller has rightly, held that the original tenant wilfully and deliberately not only failed to pay rent to the respondent but he committed default in depositing rent regularly even in the Miscellaneous Rent Application.

For the foregoing reasons, I do not find any merit in this appeal and the same was dismissed by short order, dated 15‑1‑1986 and above are the reasons for the same.

H . B . T . Appeal dismissed.

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