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First Rent Appeal No.580 of 1983, decided on 27th July, 1986.

‑‑S. 15(2)(ii)‑‑Default in payment of rent‑‑Proof‑‑Landlord in ejectment application without disclosing particular month from which rent was not paid to him, simply mentioning total period for which rent was not paid‑‑Period for which default was alleged by landlord, covered period for which tenant had been depositing rent with Rent Controller on alleged refusal of landlord to receive same‑ Deposit of rent with Rent Controller within specified period of 60 days, held, would be valid tender of rent‑‑No legal default in payment of rent was committed by tenant in circumstances.

1984 S C M R 406; 1985 C L C 1445; 1984 C L C 265; 1982 CLC 1444 and 1983 C L C 468 ref.

‑‑‑Ss. 15 & 21(1)‑‑Ejectment of tenant‑‑Grounds for‑‑Proof‑‑Grounds on which landlord sought ejectment of tenant could only be proved by cogent and sufficient evidence‑‑Mere word of landlord, held, would not ' be sufficient evidence to prove such grounds of ejectment.

Sami Ahmad for Petitioner.

Syed Naqi Meerza for Respondent.

Appellant Mrs. Aziz Sultana is owner/landlady of shop No.3, in a building on Plot No. 881‑C, Central Commercial Area, P.E.C.H.S. Karachi. The respondent Abdul Jabbar Khan is in occupation of the said shop as a tenant since September, 1971. The rent of the shop was settled at Rs.125 per month payable in advance in the first week of every calendar month. It is, however, disputed whether the rent was inclusive or exclusive of water, electricity and conservancy charges.

The appellant filed Rent Case No.3627 of 1976 before First Controller, Karachi, on 24‑8‑1976, for ejectment of the respondent from the rented shop on the grounds, firstly that he had failed to pay rent which had accumulated to the tune of Rs.1,000, and water conservancy and electricity charges amounting to Rs.480; and, secondly, that he had made material unauthorised additions and alterations in the shop; and, thirdly, that the appellant needed the shop for her use and that of her son. The respondent resisted the ejectment case at all fronts. He alleged that the appellant had filed ejectment case malafidely. He took the plea that the rent had been d posited with the Controller under Rent Application No. 1376 of 1976 on the landlady's refusal to receive the rent unless enhanced. He alleged that the appellant had withdrawn necessary amenities of electricity and water and he had filed legal proceedings for restoration thereof. The parties adduced evidence. The XIIth Senior Civil Judge/ Controller dismissed the ejectment application by order dated 11th June, 1983, on all the three grounds. This appeal is directed against that order.

The learned counsel for the appellant has assailed the findings of the learned Controller mainly on the issue of default in payment of rent. He has urged that the respondent had not paid rent from December, 1975 to July, 1976, and consequently the ejectment application was filed. He has contended that there is no evidence that the respondent had ever remitted rent for any period or that he had deposited any rent with the Controller. According to him, mere reference to the deposit of rent under miscellaneous proceedings is not sufficient Province to prove the fact. He has cited 1984 S C M R 406 in support of his contentions. He has also contended that mere production of a receipt does not constitute evidence and he has relied upon 1985 C L C 1445 as a supporting authority. On the other hand, the learned counsel for the respondent has urged that the appellant had declined to accept rent unless it was increased and, therefore, the respondent deposited the rent with the Controller under Miscellaneous Application No.1516 of 1976, and no default was committed by him in payment of rent. He has relied upon the cases reported in 1984 C L C 265; 1982 C L C 1444 and 1983 C L C 468.

The tenancy between the parties was on monthly rental basis. The tenancy agreement is Exh.A‑1. The monthly rent of the rented premises was settled at Rs.125. The appellant's case is that this sum of Rs.125 did not include water, electricity and conservancy charges, whereas the contention of the respondent is that it included those charges. There is clear overtyping in the agreement of tenancy Exh.l‑A of the word "exclusive". There is no authentication of the overtyping. The agreement seems to have been attested by one witness. He was not examined. The tenancy was established as far back as in the year 1971, when the rental rate was not at higher pitch. It, therefore, appears that the rent of, Rs.125 was inclusive of water, electricity and conservancy charges. The appellant did not disclose in the ejectment application as from which month rent was not paid. It was stated in the ‑ejectment application that the arrears of rent had accumulated at Rs.1,000 and another sum of Rs.480 was claimed at Rs.60 per month probably as water, electricity and conservancy charges. It was also stated in the application that the rent was payable in advance in the first week of every calendar month and so is stated in the tenancy agreement. The ejectment case was filed on 24‑8‑1976. It would follow that the arrears of rent were calculated from January, 1976. However, the appellant stated in her affidavit filed in evidence that the rent had not been paid from December, 1975. The respondent also adopted the same hide and seek game while filing his written statement and made bare denial of having committed default in payment of rent and merely stated that he had deposited rent with the Controller under Miscellaneous Rent Application No. 1376 of 1976. He repeated the same confused statement in his affidavit. No evidence was adduced to show when Miscellaneous Rent Application No. 1376 of 1976 was filed and for which period the rent was deposited there under. In order to reach the definite conclusion whether rent had been validly tendered/paid by the respondent as represented by him or he had committed default in payment thereof as alleged by the appellant, record and proceedings of the Miscellaneous Rent Case No. 1376 of 1976 was requisitioned after the learned counsel had closed their arguments. The R & P was examined in the presence of the learned counsel for the parties. The learned counsel for the Appellant contended that the deposit of rent under the said Miscellaneous Rent Application did not amount to valid tender/ payment of rent and it did not absolve the respondent of default in payment of rent. The learned counsel for the respondent urged that the rent was deposited with the Controller well within time and it amounted to valid tender of the rent. It appears from the record of the Miscsellaneous Application No. 1376 of 1976 that the application was filed before the Controller on 26‑3‑1976. It was stated therein that the rent had been paid up to January, 1976, but the landlady had not issued receipt for the rent of January, 1976, and she had refused to receive the rent for the subsequent period unless it was increased. It was also stated that rent remitted by money order for the month of February and January, 1976 was not accepted and, therefore, rent was sought to be deposited before the Controller. Photostat copy of the Notice dated 6th March, 1976 addressed to the appellant alongwith a photostat copy of Postal receipt and a photostat copy of a money order coupon of remittance of Rs.250 as rent for the month of February and March 1976, on 6‑3‑1976, were filed. Since the appellant did not disclose in the ejectment application the month from which rent had not been paid/tendered, and the facts mentioned in the ejectment application I indicate that the rent had been claimed for 8 months which would cover the period from January to August, 1976, the application fort deposit of the rent with the Controller was made within 60 days of the rent for the months of January and February, 1976 had become due A and it amounted to valid tender of rent as explained under subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959,, whereunder the ejectment application was filed. In the circumstances, there was no legal default in payment of rent by the respondent. The l cases relied upon by the learned counsel do not apply to the facts of this case discussed above.

As regards other grounds of impairment of the rented premises and landlady needing the rented premises for her own use, there is no evidence other than a word of the appellant and that is not sufficient evidence to prove those grounds.

For the reasons recorded above there are no grounds for setting aside the order of the learned Rent Controller, although it is not exhaustive. The appeal is, therefore, dismissed with costs.

H.B.T Appeal dismissed.

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