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First Rent Appeal No.667 of 1981, decided on 1st January, 1987.

---Ss.15 & 21--Default in payment of rent--Rent Controller taking into consideration evidence in justification of plea of lump sum payment and receiving of cash by landlord in lieu of cheque in respect of rent for disputed period, while tenant not pleading same Cheque issued by tenant dishonoured on presentation and tenant failing to establish by cogent evidence that he paid cash in lieu of cheque which was dishonoured--Default, held, was committed in circumstances--Eviction application, allowed.

---Pleadings--No evidence, held, could be led or looked into in support of plea that had not been pleaded in pleadings.

A I R 1930 P C 57(1) and 1984 C L C 1061 rel.

---Ss.15 & 21--Default in payment of rent--Cheque--Legal tender--If rent was tendered through cheque and landlord accepted same without any objection and cheque was honoured and encashed on presentation, it would be a legal tender--When cheque was dishonoured on presentation it would not be considered as valid tender and tenant would be liable for default.

H.A. Rehmani for Appellant.

Dilawar Hussain for Respondent.

Date of hearing: 12th October, 1986.

This First Rent Appeal is directed against the order, dated 31-10-1981 passed by the VIIIth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction application filed by the appellant.

The facts giving rise to this appeal are that the appellant is the owner of building situated on Plot No.III-C, 3/11, Nazimabad, Karachi and the Respondent is the tenant of the appellant in respect of Flat No.3 of the said building at the monthly rent of Rs.150 excluding other charges. The appellant filed eviction application being rent case No.425 of 1975 on the ground of default in payment of rent since May, 1975. The respondent resisted the eviction application.

On the pleadings of the parties, the learned Controller framed the following issues:--

(1) Whether the opponent committed default in payment of monthly rent or not

(2) What should the decree be

In support of the eviction application the appellant examined her attorney Muhammad Junaid Nawab. The Respondent filed his own affidavit-in-evidence in rebuttal. He was cross-examined by the learned counsel for the appellant.

The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties decided Issue No.1 in the negative and dismissed the eviction application vide order, dated 31-10-1981.

The appellant being aggrieved against the order, dated 31-10-1981 of the VIIIth Senior Civil Judge and Controller, Karachi has preferred the above First Rent Appeal on the grounds mentioned in the memo of appeal.

I have heard the learned counsel for the parties and perused the R & P with the assistance of the learned counsel for the parties and gone through the impugned order.

The appellant in para. 3 of the eviction application averred that "the opponent has failed and neglected to pay the monthly rent at Rs.150 to the applicant for the last 7 months and an amount of Rs.1,050 becomes due and payable by the opponent the applicant". The appellant further averred in her eviction application that on account of the default committed by the respondent, notice were given to him verbally and in writing for the payment of the same and after great efforts on the part of the appellant, the respondent gave a- cheque being No. CY 251561, dated 31-7-1975, drawn on the United Bank Limited, Campbell Street Branch, Karachi for a sum of Rs.450 which on presentation to the said bank was dishonoured. The respondent filed his written statement wherein he took the following pleas:

(a) The appellant disposed of the property and the respondent has not been communicated the whereabouts of the new owner but to avoid delay the respondent is depositing rent in Misc. Rent Case No.198/76.

(b) The cheque for Rs.450 which was in collusion with the tank was dishonoured.

(c) The attorney of the appellant refused to accept the rent despite the fact that the respondent personally went to his Office to deposit the same on the pretext that the property does not belong to the appellant.

(d) The 'appellant refused to accept the rent deliberately with ulterior motive of raising the rent.

(e) An amount of Rs.1,000 is still lying with the appellant.

The attorney of the appellant has deposed in his examination -in-chief that the respondent had paid the rent upto the month of April 1975 but since then "he has not paid the rent to the applicant till the filing of this case. The opponent had paid the rent for May, June, July 1975 by cheque but that cheque was dishonoured. I informed the opponent about. it and sent back the said cheque to him with covering letter under registered cover A/D. The said letter was received by the wife of the opponent".

The attorney was not cross-examined by the respondent.

As against the above evidence, the respondent stated in his evidence that the rent for the months of May June and July 1975 was paid to the appellant as per receipt, dated 2-8--1975. The respondent also stated that he issued a cheque for Rs. 450 and the same was dishonoured on the ground that the respondent had already paid rent in cash for the said months. The respondent further stated that the appellant was in the habit to collect the rent for 3 and 6 months from the respondent and the appellant never came to collect the rent from him on every month. The respondent also stated that the appellant adjusted the expenses of repairs out of rent spent by the respondent. Lastly the respondent stated that the brother-in-law of the attorney Chirag Din used to come to collect rent from the respondent and he gave in writing "if the opponent with instal the sui-gas and separate electric meter in his flat, all the hills in this connection will be paid to the opponent or adjusted from the future rent of the opponent". Thus the respondent has installed separate electric meter and the expenses incurred be adjusted from the future rent of the respondent. The respondent also gave cheque for Rs.450 to the appellant which was not encashed by the appellant.

A perusal of the aforesaid pleadings would indicate that the respondent took the defence that the appellant disposed of the property in dispute, cheque which was issued got dishonoured in collusion with the staff of the bank, the appellant refused to accept the rent deliberately with ulterior motives of raising the rent and an amount of Rs.1,000 was lying with the appellant.

Evidence was, however, led-'to establish the defence namely, the rent in respect of disputed period was paid through receipt, dated 2-8-1975, the cheque was dishonoured because the rent was received in cash, the appellant was in the habit of receiving rent in lumpsum and did not come to collect the rent from him every month, the appellant adjusted the expenses of repairs out of rent, the brother-in-law of the attorney used to come to collect rent from the respondent and he gave permission about installation of sui-gas and adjustment of rent from the expenses incurred for installation of gas and lastly the respondent issued a cheque for Rs.450 which the appellant .did not encash. This evidence evidently was irrelevant to the pleadings, it was not the case of the respondent in his pleadings.

It is established principle of law that no evidence can be led or looked into in support of plea that had not been pleaded in the pleadings. (See A I R 1930 P C 57(1) and 1984 C L C 1061 and F.R.A. 1127/982).

Such being the position, the inescapable conclusion follows that the Controller committed the error-of taking into consideration evidence which he ought not to have done so. Once the evidence in justification of the plea of lumpsum payment, receiving of cash in lieu of cheque in respect of the rent for disputed period is ruled out of consideration as already observed, had not been pleaded, then the plea that survives or the defence that survives is that he issued a cheque which was dishonoured in collusion with bank staff and the deposit of rent in Misc. Rent Case No.198/76.

It is an admitted position that the cheque was dishonoured. It is also an admitted position that the cheque alongwith the bank slip was sent to the respondent through registered letter which was duly received by his wife. If the rent is tendered through cheque and the landlord accepts it without any objection and the same is honoured or encashed on presentation, then it is legal tender and if the cheque is dishonoured on presentation, then the same will not be considered) as valid and the tenant will be liable for the default. In the present case as I have already observed that the cheque was dishonoured. The burden is on the tenant to establish by cogent evidence that he paid the cash amount in lieu of the cheque. This burden is not, discharged by the respondent. I hold that in the instant case the respondent had committed default because the cheque which was tendered to the appellant, was dishonoured.

The other defence is that he started depositing the rent in Misc. Rent Case. The appellant averred in his eviction application that the rent for the months of May, June and July 1975 was payable by the respondent. It is also an admitted position that the eviction application was presented on 2-12-1975 and it is also admitted position that respondent started depositing rent in Misc. Rent Case No.198 of 1976, that is, after the default already committed by the respondent. In this view of the matter the respondent had already committed default. It seems that the learned Controller has not adverted to this.

In view of the above discussion I accept this appeal and reverse the impugned order of the Controller and grant the eviction application for eviction of the respondent. The respondent is directed to put the appellant in possession of Flat No.3 of building standing on Plot No.III-C, 3/11, Nazimabad, Karachi within three months subject to deposit of rent as ordered by the Controller. In the circumstances of the case, the parties will bear their own costs.

M.Y.H./B-18/K Appeal accepted.

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