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RAFIULLAH KHAN--Appellant
versus
IQBAL HUSSAIN--Respondent
First Regular Appeal No.1167 of 1984, decided on 2nd July, 1987.
(a) Sind Rented Premises Ordinance (XVII of 1979)--
---S. 15--Ejectment of tenant for default in payment of rent--Practice of payment of rent in lump sum not proved--Effect--Burden to prove practice of payment of rent in lump sum on tenant--Tenant failing to discharge such burden by producing reliable evidence--Tenant not taking plea of payment of rent in lump sum in writton statement but taking same in affidavit of evidence for first time by way of improvement--Acceptance of rent in lump sum on two occasions, held was not sufficient to prove such practice.
Tar Muhammad Janoo and others 1981 S C M R 93 and Abdul Aziz v. Abdul Ghani. 1986 S C ,M R 1857 distinguished
(b) Sind Rented Premises Ordinance (XVII of 1979)--
---S. 15--Ejectment of tenant--Acceptance of "Pugree" by landlord- Plea of tenant not established--Effect--Matter of acceptance of "Pugree" though raised by tenant in written statement but failed to substantiate or support such plea with evidence before Rent Controller--Tenant also failed to produce receipt showing acceptance of amount of Pugree--In view of clear and categorical admission from tenant in cross-examination that he could not produce any evidence in proof of assertion that landlprd accepted from him "Pugree", plea of tenant, held, fell flat and stood manifestly not proved--Plea of Pugree to be proved by producing sufficient and satisfactory evidence--Failure of tenant to prove such plea would not oblige Court to take judicial notice thereof, to f]ill in, lacunae, and condone failure of tenant to support his own plea.
(c) Sind Rented Premises Ordinance (XVII of 1979)--
---Ss. 13 & 21--Appeal, against ejectment--Tenant's default in payment of rent having been 'proved, his appeal against eviction being devoid of merit was dismissed.
S.A. Wadood or Appellant.
Sajjad Halal for Respondent.
Dates of hearing: 18th and 19th May, 1987.
This first rent appeal is directed against order of eviction dated 29-11-1984 passed by XIV Rent Controller Karachi under Section 15 of the Sind Rented Premises Ordinance, 1979.
Briefly stated the relevant facts giving rise to this appeal are that appellant Rafiullah is tenant and respondent Iqbal Hussain is landlord (hereinafter to be referred as such) in respect of tenement No. 3 Iqbal Market Bandukwala building situate on Marriot Road Karachi. Landlord filed application for ejectment on the ground of default in the payment of rent f pr 19 months and subletting. Rent was claimed at the rate of Rs.40/- and Rs.10/- as electric charges per month. It was alleged that tenement which was an office, had been unauthorisedly handed over to some one else, who is using the same for storing goods.
Tenant Rafiullah Khan filed written statement and explained 'that initially he and Fayaz Khan were joint tenants carrying on business in partnership but subsequently after dissolution of partnership, he became sole tenant. He also claimed that before the commencement of tenancy, landlord accepted for them Rs.23,000/- as Pugree and Rs.5,000/- as security deposit. Rate of rent as Rs.40/- per month was admitted but Rs.10/- as electric charges per month was disputed. Default was denied on the ground that for the alleged period of default it was agreed between the parties that rent was to be adjusted against security deposit.
In the Court of learned Rent Controller landlord examined his attorney Hussaini Bandukwalla and tenant Rafiullah examined himself. Now so far default is concerned, it was alleged by the landlord that rent was not paid for 19 months from January 1981 upto June 1982 and the arrears amounted to Rs.1,650/-. About electric charges it was averred that there was joint electric meter on each floor and all the tenants of that floor, who occupy offices share payment of charges equally. On this point claim of the tenant as made in the affidavit of his evidence is rather dubious and self-contradictory because he has stated that landlord was to provide electric connection but he failed to do so, although he was paid electric charges for the electric meter. This is so stated in para. 6 of the affidavit. It is admitted that electric charges were being paid, now why would tenant pay electric charges in the absence of electric connection. On this point not a single question was put by tenant to the attorney of landlord in his cross-examination. In cross-examination tenant admitted that Rs.10/- were electric charges payable to the landlord excluding monthly rent but further claimed that electricity had been disconnected since past three years and he produced rent receipt as Ex.5-B. Perusal of this exhibit on the record shows that it is dated 9-8-1979 and on its back there is a note in some one's handwriting that from August to December for five months electric charges of Rs.50/- were paid. This receipt is in the name of tenant showing rent at the rate of Rs.40/- per month amounting to Rs.200/- for five months was paid. This receipt was issued in the month of August 1979. Cross-examination of tenant was recorded on 24-10-1984 in which he claimed that electricity was disconnected since past three years and that would take back disconnection to October 1981. Ex.5-B was issued earlier than that in 1979 and it does not help the tenant to prove his claim that electricity was disconnected three years ago. On the other hand tenant has stated in his cross-examination that his premises in question remained locked as he had stopped his business there for the past two or three years.
On the question of default on behalf of landlord counterfoil of last rent receipt is produced as Annexure 'C' which is dated 1-1-1980 and it shows that tenant had paid rent upto December 1980. Tenant has not produced any other receipt to show that rent was paid by him after December 1980. On the other hand stand taken by the tenant is two-fold. Firstly that in January 1981 he tendered rent but landlord refused on the ground that rent would be adjusted against security deposit and secondly that landlord used to accept rent in lump sum. It is not understandable why all of a sudden landlord would refuse to accept the rent and tell the tenant that rent would be adjusted against the security deposit. No proof has been produced by the tenant in support of this claim. Photo copy of this receipt is produced by the tenant himself as Annexure 'A' alongwith his written statement and perusal thereof clearly shows that the amount is not adjustable towards monthly rent but is returnable to the tenant of the time of handing over of the possession. Tenant has admitted in his cross that he has no written proof showing that landlord had agreed for adjustment of monthly rent against security deposit. He has also admitted that Annexure 'A' specifically stipulates that deposit is not adjustable against monthly rent. In the circumstances tenant has failed in this plea.
About the plea that landlord is in the habit of collecting rent in lump sum, tenant has failed miserably as he has not produced satisfactory evidence in support of that claim. For such plea burden of proof lies on tenant. In the written statement tenant has not taken this plea but in the affidavit of his evidence in para. 7 tenant has for the first time taken this plea by way of improvement. He has produced one receipt Annexure 'B' issued in his name on 9-8-1979 which shows that rent was accepted for five months. He' has produced three other receipts Annexures 'C', 'D' and 'E' but they are of other tenants and those tenants have not been examined. Other receipt on which reliance is placed by the tenant is Ex.5-A, which shows rent accepted from the tenant for 12 months, counterfoil of which has been produced by the attorney of landlord himself. These two occasions are not sufficient to prove that practice. Supreme Court of Pakistan has held in case of Tar Muhammad Janoo and others (1981 S C M R 93) as under:-
"Mere fact that a tenant has made it a habit not to pay rent regularly every month and that the landlord has tolerated his default for sometime and accepted the rent paid at irregular intervals cannot in any way be deemed to have established a practice of payment whenever the tenant pleases or affects the liability of tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying rent every month. A landlord's acceptance of rent paid to him at irregular intervals does not in any way show that he does not expect it to be paid regularly every month as reason for receiving delayed payment might be his decency, his desire to accommodate his tenant his pre-occupation with his own work, his hesitation to go to the Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
Mr. Wadood, counsel for tenant in the case under consideration, while arguing in favour of practice of accepting rent in lump sum by the landlord, cited the case of Abdul Aziz v. Abdul Ghani (1986 SCMR 1857, in which the Supreme Court has held that if the landlord himself adopted practice of accepting rent in lump sum and such practice is in vogue from beginning of tenancy then conduct of the ullah Khan v. Iqba (Sajjad Ali Shah, landlord provides justification to tenant to take such a plea in the case of default. In the reported case cited above the facts were entirely different. Tenant had succeeded in producing overwhelming evidence including rent receipts to show that on innumerable occasions right from the beginning of tenancy and contrary to the terms and conditions printed on the back of the rent receipts landlord accepted rent after long intervals. Relevant observation from the reported case is reproduced as under:-
"There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition."
The facts of the reported case as stated above are distinguishable from the facts of the instant case. In the reported case seven rent receipts were produced to show persistent conduct of landlord to accept rent periodically right from the beginning of tenancy but in the instant case tenant has relied on only two receipts g showing the landlord accepted rent in lump sum, he could not produce any other evidence to prove that landlord persistently indulged in accepting rent after long intervals from the beginning of tenancy. I, therefore, hold that tenant has failed to prove the existence of practice of acceptance of rent by landlord in lump sum.
Mr. Wadood then submitted that in the instant case landlord has accepted 'Pugree' from the tenant and on that ground his application for ejectment should be rejected. It was further submitted in this regard that premises in question are situate in the area of Marriot Road, which is hub of commercial activity and beyond dispute the rent is as low as Rs.40/- per month, hence the Court should take judicial notice of the 'fact as contemplated under section 57 of the Evidence Act that landlord has accepted Pugree. This argument is not acceptable for the reason that this is a matter of pleadings of the parties and such plea that landlord accepted Pugree was raised by the tenant in his written statement but he could not substantiate it or support it with evidence in the Court of Rent Controller. Tenant failed to produce receipt showing acceptance of amount of Pugree. Further he admitted in his cross-examination that he could not produce any proof regarding payment of Pugree. He could not show even from his own account books that such amount was paid to the landlord. He even did not assert properly on this point as to when, where and before whom payment of Pugree was made, whether payment was made in cash or by way of cheque. No evidence whatsoever was produced by the tenant. He even did not produce other tenants in the same building to say that landlord accepted Pugree from them. Even to prove custom some evidence is to be adduced. In the circumstances in view of clear and categorical admission from the tenant that he could not produce any evidence in proof of assertion that landlord accepted from him Pugree the plea of tenant falls flat and stands manifestly not proved. Plea of Pugree can be taken by the tenant and he has to prove it to the Court by producing sufficient and satisfactory evidence and if he fails in that attempt then it cannot be expected of the Court to take judicial notice of that fact to fill in lacunae and condone the failure of tenant to support his own plea.
Issue of subletting could not be proved by the landlord before the Rent Controller and was found against the landlord and in favour of tenant. For the facts and reasons stated above, I uphold the D impugned order of ejectment and dismiss the appeal being devoid of merit. There will be no order as to costs. Tenant is directed to hand over vacant possession of the premises to the landlord within three months subject to the payment of rent.
A.A./R-18/K Appeal dismissed.
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