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First Rent Appeal No. 966 of 1983, decided on 18th September, 1986.

‑‑‑Ss. 15(2)(ii) & 21(1)‑‑Default in payment of rent‑‑Proof‑‑Statement made by tenant in respect of tendering of rent of premises to landlord, fully corroborated by his witness, remained unchallenged in cross-examination by landlord‑‑Such unchallenged statement of tenant and his witness, held, would be deemed to have been accepted by landlord‑ Tenant could not be said to have committed default in payment of rent which would render him liable to be ejected in circumstances.

Muhammad Rahman Siddiqui v. Abdul Bari P L D 1981 Kar. 537; Mst. Nazeer Begum and others v. Abdul Sattar P L D 1963 Kar. 465; Muhammad Mohibur Rehman Siddiqui v . Mistri Muhammad Aslam P L D 1975 Lah. 308 and Qalandar v. Muhammad Zareen and another 1980 CLC 141 ref.

‑‑‑Ss. 10(3), 15(2)(ii) & 21(1)‑‑Default in payment of rent‑‑Proof‑ Evidence on record fully proved that tenant alongwith his witness tried to tender rent of premises to landlord personally and through money order which landlord refused to accept‑‑Tenant as last resort deposited rent with Rent Controller by making application under S.10(3)‑ Accumulation of rent being due to conduct of landlord, tenant, held, could not be deemed as defaulter in payment of rent.

Muhammad Sadiq for Appellant.

M.L. Shahanifor Respondent.

Date of hearing: 21st August, 1986.

This appeal is directed against the order, dated 13th November, 1983 passed by the learned Rent Controller/ XIIth Senior Civil Judge, Karachi in Rent Case No. 1201 of 1981 whereby the application under section 15 of the Sind Rented Premises Ordinance, 1979 filed by the appellant for ejectment of the respondent was dismissed.

1. (i) The facts briefly stated are that one Mrs. Khadija Shirazi was the tenant of the appellant in respect of Flat No.l, situated on Plot No. RB‑6/104, Arambagh Ghari Khata, Karachi on a monthly rent of Rs.27. She died on 1‑10‑1980 and left behind her husband/the respondent as the only surviving legal heir. In the ejectment application filed before the Rent Controller on 10‑3‑1981, it was pleaded by the appellant that the respondent though claimed to be the legal heir having inherited tenancy right on the death of his wife failed to pay and/or tender the rent for the disputed premises from 1‑7‑1980 and as such committed wilful default, and rendered himself liable to be evicted.

(ii) The respondent contested the said ejectment case. In the written statement filed by him, it was inter alia pleaded that the appellant refused to accept him as a tenant and did not accept the rent whenever offered to him in the presence of witnesses. According to the respondent as the appellant even refused to accept the money orders sent he filed an application on 8‑2‑1981 under section 10 of the Sind Rented Premises Ordinance, 1979 in the Court of the Rent Controller. That case was registered as Rent Application No. 1639 of 1981 in which pursuant to the order passed by the Rent Controller rent upto April, 1981 was deposited in the Court. It was accordingly pleaded that no default was committed by the respondent and that he was not liable to be ejected.

(iii) On the pleadings of the parties the learned Rent Controller framed the following two issues:‑----

"(i) Whether the opponent has committed default in the payment of rent

(ii) What should the decree be "

(iv) At the trial the appellant examined himself while the respondent besides giving his own evidence also examined one Khalilur Rehman in defence. The Rent Controller after hearing the Advocates for the parties dismissed the ejectment case filed by the appellant by the order passed on 13th November, 1983 with the observation that in the circumstances the respondent was found not to have committed any default in payment of rent.

2. Aggrieved by the aforementioned order the appellant has preferred this appeal under section 21 of the Sind Rented Premises Ordinance, 1979.

3. The learned counsel for the appellant in support of the appeal submitted that the Rent Controller committed gross error in giving the finding that on the evidence on record it was proved that the respondent had tendered the rent which the appellant avoided to accept and that the respondent was always ready and willing to pay rent. Having heard the learned counsel for the parties I find myself in agreement with the learned Rent Controller that in the circumstances of the case respondent cannot be said to have committed default in payment of rent so as to render him liable to be ejected.

In order to appreciate the submission made by the learned counsel for the appellant the material placed on record by the parties may be examined.

On behalf of the appellant was examined Mr. Abdul Rehman, who deposed that Mrs. Khadija Shirazi was the tenant and that on her death on 1‑10‑1981 the respondent/her husband claimed to have become the tenant as her sole surviving heir but no rent was paid by him since 1‑7‑1980.

In rebuttal of the case thus set up by the appellant, the respondent in his evidence stated that during the lifetime of his wife/the original tenant from 1‑7‑1980 to 1‑10‑1980 the appellant had refused to collect the rent from the respondent deliberately and without any justification even though he went to pay and tendered the rent to the appellant several times alongwith Khalilur Rehman his neighbour. According to the respondent tender of rent made by the respondent even after the death of his wife was refused every time by the appellant for the reason that he did not accept him as the legal heir of Mrs. Khadija Shirazi the original tenant. Khalilur Rehman the witness named by the respondent, in whose presence the rent according to the respondent was tendered was also examined. This witness deposed that during the sickness of Mrs. Khadija Shirazi once he went to tender the rent to the appellant in July, 1980 (Exh.27 for one month) and that on the second occasion he tendered the rent for July and August, 1980 when he had gone alongwith Shirazi but the appellant each time did not receive the rent. He also deposed that finally he went personally to tender the rent for July to October, 1980 but this time also the landlord refused to accept the rent.

The respondent was cross‑examined by the Advocate for the appellant but the statement made by him as above were not challenged. The statement made by the respondent as to tenders of rent made was fully corroborated by Khalilur Rehman who expressly deposed that he himself tendered rent in July, 1980 and thereafter went to tender the rent to the appellant alongwith Shirazi/the respondent for July and August, 1980 and that he thereafter once again personally had gone to tender the rent for July to October, 1980 but each time rent tendered was refused. This statement of Khalilur Rehman was not challenged in cross‑examination.

The inescapable conclusion in the circumstances, would be that the statements made by the respondent and his witness Khalilur Rehman as to tender of rent in the manner as stated by them shall be deemed to have been accepted by the appellant. The view thus taken finds support by the principle laid down in the case of Muhammad Rahman Siddiqui v. Abdul Bari P L D 1981 Kar. 537 wherein placing reliance upon the cases reported as Mst. Nazeer Begum and others v . Abdul Sattar P L D 1963 Kar. 465, Muhammad Mohibur Rehman Siddiqui v. Mistri Muhammad Aslam P L D 1975 Lah. 308 and Qalandar v. Muhammad Zareen and another 1980 C L C 141 it was held that the statement in evidence which has not been challenged in the cross‑examination shall be deemed to have been accepted.

4. Another aspect of the case of which notice may also be taken is that though in the written statement the respondent had expressly pleaded that the landlord had refused to accept him as a tenant and thus did not accept rent whenever offered to him in the presence of the witnesses, the landlord's witness Abdul Rehman in his evidence did not say a single word that no rent was ever tendered to him by the respondent personally or in the company of any witness. The fact that the appellant was not ready to accept rent from the respondent finds support also from the conduct of the appellant who in his cross examination expressly stated that the respondent is not his tenant. Here reference may also be made to the legal notice, dated 17‑2‑1981 sent on behalf of the respondent in which also it was expressly stated that every time the respondent went to pay rent the appellant refused to collect the same and, therefore, he was constrained to send it through money order which was also refused by the appellant. This statement made in the notice was also not rebutted by sending any reply to it. It has already been noted above that the respondent as a last resort deposited rent in the Court of the Rent Controller by making an application under section 10(3) of the Ordinance of 1979.

For the aforementioned reasons I am satisfied that the accumulation of rent was due to the appellant's own creation while the respondent (tenant) could not be described as a default in payment of rent.

5. The upshot of the above discussion is that the order of the Rent Controller does not call for any interference and agreeing with his finding that the respondent cannot be held guilty of committing any wilful default, dismiss this appeal.

H . B . T . ‑‑‑‑‑ Appeal dismissed.

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