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First Rent Appeal No. 515 of 1986, decided on 18th September, 1986.

‑‑‑S. 15 (2)(ii)‑‑Default in payment of rent‑‑Proof‑‑Tenant pleaded that he was advised by landlord not to remit rent for alleged period of default, but to accumulate, as landlord would be out of country‑‑Plea of tenant denied by landlord‑‑Burden to prove being on tenant which he failed to discharge, Rent Controller, held, rightly concluded that tenant had committed default in payment of rent.

‑‑‑Ss. 15(2)(iii) & 21(1)‑‑Misuse and subletting‑‑Proof‑‑Evidence on record unrebuttedly proved that premises in dispute let out to sole tenant for residential use only, was converted by tenant alongwith his partners into commercial use without permission of landlord‑‑No misreading of evidence by Rent Controller was pointed out by tenant‑ Findings of Rent Controller on grounds of misuse, conversion and subletting being based on evidence on record, were upheld by High Court in appellate jurisdiction.

Ajmal Haider for Appellant.

Date of hearing:31st August, 1986.

This First Rent Appeal is directed against the order, dated 12‑7‑1986 passed by the Vth Senior Civil Judge/Rent Controller, Karachi, whereby she allowed the eviction application filed by the respondent and directed the appellant to handover vacant possession of the premises in question to the respondent in one month from the date of the order.

The facts giving rise to this appeal are that the respondent is the owner of residential house No.487 PIB Colony, Karachi, and the appellant No.l is the tenant in respect thereof at the monthly rental of Rs.500 payable in advance on the first of every month. The respondent filed Eviction No. 646/85 on the ground of default in payment of rent from 1‑7‑1983 to 31‑12‑1983 amounting to Rs.3,000, (2) handed over possession of the part premises to respondents 2 and 3, (3) for conversion of the premises from residential to commercial use of the premises, (4) impaired the value and utility of the premises and personal bona fide use. The appellant No.l resisted the eviction application.

The respondent filed affidavit in evidence of her attorney Dr. S.M. Taqi in support of the eviction application. In rebuttal the appellant filed his own affidavit in evidence. They were cross‑examined by the learned counsel for the partuies. The appellant filed affidavit of Abdul Salam and Muhammad Tariq but they did not submit for cross‑examination.

The learned Rent Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction on all the grounds vide order, dated 12‑7‑1986.

The appellant being aggrieved against the order, dated 12:7‑1986 of the Vth Senior Civil Judge/Rent Controller, Karachi on the grounds mentioned in the memo of appeal. ,

I have heard the learned counsel for the appellant and perused the R & P and the impugned order.

It is an admitted position that the appellant had paid rent upto June, 1983. The respondent had averred in her eviction application that the appellant had committed default in payment of rent from 1‑7‑1983 to 31‑12‑1983. The appellant had stated in his written statement that the respondent had advised him not to remit the rent upto December 1983, as she was leaving for Saudi Arabia. The appellant came to know that the respondent was in Karachi so the rent for six months was remitted through money order and there after, he started depositing rent with the Nazir under Rent Miscellaneous Case No. 65 of 1984. The attorney of the respondent filed affidavit in evidence and stated therein that no such advice as alleged by the appellant was ever given by him or the respondent to the appellant. The attorney further stated that actually he was practising as a doctor and cannot go out of Karachi for such a long time. It was further stated that the rent for the disputed period was remitted in December 1983. It is pertinent to note that the attorney of the respondent denied the suggestion that he advised the appellant that "as I will not be available in Pakistan as such he should accumulate the rent of the tenement and I will receive the rent from abroad." The opponent No. 3 Abdul Salam though filed his affidavit in evidence but he did not submit himself for cross examination. In this view of the evidence, the statement of the appellant does not help him as he does not know personally about the advice.

The appellant filed his affidavit in evidence and he submitted himself for cross‑examination. The appellant admitted in his cross- examination that "I do not know that Dr.Taqi has his clinic at Lawrence Road. I tried to enquire about the whereabouts of Dr. Taqi from January 1983 to December 1983. The burden was on him which failed to discharge. It seems that the conclusion of the learned Rent Controller is correct on this ground.

As regards ground of parting possession of the premises in question, it is an admitted fact that the appellant entered into partnership with Abdul Salam and Muhammad Taqi. The appellant admitted in his cross‑examination that the partnership had been dissolved but no such deed was produced. A perusal of Miscellaneous Rent Application shows that the rent was deposited by Messrs Pakistan Fruit Company through Abdul Salam. I have perused the tenancy agreement clause 4 thereof which provides that the appellant would not sublet, assign transfer to any other person or convert into commercial premises but would use it for residential purpose only. The appellant also undertook that he would use the premises for residential purpose and it is an admitted position that he converted it into commercial use without the permission of the respondent. It seems that the findings on these grounds are in accord with the evidence on the record. The learned counsel for the appellant is unable to show that the learned Rent Controller has misread the evidence.

The appeal was dismissed in limine by a short order, dated 31‑8‑1986 and the above are the reasons for the same. The appellant is allowed four months time to vacate the premises from 31‑8‑1986 and failure to hand over possession thereof, the writ of possession will be issued without any notice to the appellant.

H . B . T Appeal dismissed

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