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First Rent Appeal No.567 of 1981, decided on 3rd December, 1986.

---Ss.15 & 21--Default in payment of rent--Tenant stating that he sent cheques to landlord from time to time towards payment of rent but landlord had not presented same to bank--Tenant failing to produce any receipt or signatures of landlord on counterfoils of cheques--No witness produced in support of tenant's claim--Evidence on record also not showing that tenant sent any cheques to landlord or examined any person from bank--Evidence existing to the effect that tenant committed a wilful default--Order of Rent Controller allowing ejectment application was upheld in circumstances.

Sohail Muzaffar for Appellant.

Ismail Padhiar for Respondent.

Date of hearing: 3rd December, 1986.

By this first rent appeal the judgment of the Rent Controller, dated 12th October, 1981 of X Senior Civil Judge and Rent Controller, Karachi, has been challenged.

2. The rent case No. 889 of 1979 was filed by Respondent Muhammad Ismail against Lt. Col. S.M. Afzal, who is now dead, on the ground of default in payment of rent for 16 months with effect from 1-10-1977 to 31st January, 1979 amounting to Rs.6,400 as the rate of rent is Rs.400 per month.

3. In written statement it is stated that appellant had been paying the rent by cross cheques and after some time on refusal to accept the rent the same was deposited in Court.

4. S.M. Afzal, tenant, in his evidence, Ex.2, stated the same thing as mentioned in the written statement but took the plea that he has given the details of the cheques in his affidavit filed in reply togs the application of respondent under section 16(1) of the Ordinance.

5. On the other hand, Muhammad Ismail, landlord, examined himself and corroborated the version as given in the application in respect of arrears of 16 months. He has stated that no rent was tendered in time and appellant committed default.

6. I have heard Mr. Sohail Muzaffar appearing for the appellant at length. It is argued that rent for 16 months was tendered by cross cheques but respondent deliberately not presented those cheques in the bank, therefore, there is no wilful default. It is contended that relations between the landlord and tenant were very cordial, therefore, the appellant did not care to verify whether the cheques were presented in the bank or not.

7. Mr. Ismail Padhiar has argued that there is a clear default in payment of rent for 16 months and Rent Collector has rightly allowed his rent application.

8. The default is for 16 months. Only question which requires the consideration is whether the cheques were given to the respondent from time to time as alleged. The appellant has not been able to produce any receipt or signature of the respondent on the counter-foils of the cheques. He has also not examined any other witness to support his case that cheques were being given to the respondent from time to time. After all, in the present case. there is allegation of default of 16 months. The appellant has not produced any receipt relating to the rent issued by the respondent. It is suggested in the cross examination by the appellant to Muhammad Ismail from which it is clear that the defence of the appellant is that there was an understanding that appellant will deposit the rent in his bank account and that respondent told his banker not to accept the cheque from the appellant regarding the rent. The relevant para in the cross is as under:-

"It is incorrect to suggest that I had understanding with the opponent that he will deposit the monthly rent in the bank account. It is wrong to suggest that I had told my banker not to accept the cheque from the opponent regarding rent."

9. From the assessment of the entire evidence, there is nothing on the record to show that the cheques were actually handed over to the respondent and who deliberately not presented in the bank fort encashment. The appellant has not summoned any person from the bank in support. There is evidence that appellant has committed wilful default and in the circumstances the Rent Controller has rightly allowed the rent application of the landlord.

10. In the alternate, Mr. Suhail Muzaffar requested that in case his appeal is dismissed one year's time be granted to the appellant to vacate the premises. He stated that Lt.-Col. S: M. Afzal has died and his widow is presently residing in the premises and will require time to find out some house. Mr. Ismail Padhiar has no objection if time as requested is allowed. In these circumstances, I allow one year's time to appellant to vacate the premises subject to payment of rent regularly.

M.Y.H./S-30/K Appeal dismissed.

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