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First Rent .Appeal No.553 of 1984, decided on 24th February, 1987.

----Ss .14 , 15 & 20--Ejectment on ground of default in payment of rent--Tenant failing to establish payment of rent for 12 months and even if the case as set up by tenant with regard to the payment of rent on yearly basis was accepted then too default in payment of rent had been proved---Order of Rent Controller maintained and appeal dismissed--Tenant, with consent of parties, allowed six months to vacate the premises subject to his depositing rent regularly in terms of order of Rent Controller and in case of default ejectment to take effect without any further notice--Landlord allowed to withdraw rent already deposited by tenant in lower Court.

1985 C L C 2111; P L D 1967 Lah. 1138; P L D 1969 Pesh. 118; P L D 1984 Kar. 373; 1986 S C M R 1857; P L D 1976 Lah.1052; P L D 1982 Kar. 188; P L D 1965 Lah. 11; 1982 C L C 217; 1982 CLC 219; P L D 1984 S C 32 and 1984 C L C 1843 cited.

Rehanul Hassan Farooqui for Appellant.

Muhammad Sadiq for Respondent.

Dates of hearing: 22nd and 24th February, 1987.

This appeal arises from the order of the XIIth Senior Civil Judge/A.S.J./Rent Controller Karachi, dated 19-4-1984 whereby she has ordered the eviction of the appellant from the disputed office premises situated on the second floor of the Building known as Sultan Mansion situated on plot No.7,R-4/19-30 Market, Quarters, Karachi.

2. Briefly stated the facts giving rise to this appeal are these. The appellant was inducted into the disputed premises as tenant by virtue of the rent agreement dated 1-1-1979 on payment of monthly rent of Rs.150 which was, as per pars. 20 of the rent agreement, agreed to be payable on or before 5th of each month in advance. The respondent No.1 served a notice dated 21-4-1981 on the appellant stating that the rent since January, 1980 was not paid in spite of Sultan Ali's several attempts. He was called upon to pay the arrears of rent immediately and to pay monthly rent regularly in future as she will not condone any delay.

The respondent then filed an application for ejectment on 20-5-1981 on the ground of default in payment of rent for the period of 16 months commencing from 1-1-1980 to 30-4-1981. Written statement was filed by the appellant in which the allegation of default of payment of rent was denied and it was pleaded that the respondent used to receive rent for complete one year after completion of the order. The rent for the period January 1980 to December, 1980 was thus claimed to have fallen due on 1-1-1981. It was, as per practice, offered to the respondents but they refused to accept it on the plea that some dispute was going on in their family with respect to the property in dispute. The appellant was asked to wait for settlement of the family dispute. Upon receipt of notice dated 21-4-1981 the appellant immediately went to the respondent No.1 who had been also receiving the rent, and paid to her the rent for the entire one year i.e. from January to December, 1980. She, however, did not pass any receipt on the plea that their family dispute was not by then finally decided and that the receipt would be issued in due course, after the settlement of the family dispute.

With regard to the non-payment of rent for the period from January to April, 1981 it was averred that the rent for the whole of the year 1981 i.e. from January to December, 1981, was by then not payable and that it was, as per prevailing practice, would be payable after the close of the year.

3. In support of their case the respondents examined themselves whereas besides appellant examined himself also examined another witness, namely, Khurshid Ahmed.

4. On the pleadings of the parties the Rent Controller formulated the following points for determination; (1) whether the opponent has committed default in payment of rent and (2) what should the order be The learned Rent Controller decided the point No.1 against the appellant and, consequently, allowed the application by her impugned order dated 19-4-1984.

5. I have heard Mr. Rehanul Hessan Farooqui, learned counsel for the appellant and Mr.Sadiq, learned counsel for the respondents, and have also, with their assistance gone through the evidence on record.

6. Mr.Rehanul Hassan Farooqui contended that notwithstanding the fact that in the agreement it was stipulated that the rent shall be paid in advance but the rent was always paid on yearly basis after the expiry of the whole year.

In support of his contention he drew my attention to the rent receipts, Exs.A/1, A/3 and A/2, dated 15-3-1968 for Rs.1,800 for the period of 12 months i.e. for January 1.977 to December, 1977, Ex.A/3 is the receipt dated 3rd March, 1979, for Rs.1,800 for a period of 12 months i.e. from January 1978 to December, 1979, Ex. A/2 is dated 10th January 1980 for Rs.1,800 and relates to the period of 12 months i.e. from January 1979 to December, 1979. He contended that these receipts are admitted to have been signed by the respondent No.1 and their contents had not been challenged in any manner. These were the only three receipts which were issued by the respondent No.1 and which clearly show that the payment of rent on yearly basis was never objected to. The counsel then pleaded that after receipt of notice dated 21-4-1981 the appellant accompanied by Khurshid Ahmed, witness, tendered the rent to the respondent No.1 on 1-5-1981 for the year 1980 i.e. from 1st January to December, 1980. The respondent No.1, however, declined to issue receipt for the reason that there was some family dispute going on in respect of the disputed premises. The counsel urged that the appellant deposed about the above fact and he was corroborated in this behalf by his witness Khursheed Ahmed and vice versa. Their statements were not doubted in their cross-examination. The counsel urged that if no cross was done then the version in the examination-in-chief about a particular given fact is to be accepted and the uncontroverted statement is to be taken as having been admitted. He sought to support his contention by an authority of this court reported in 1985 C L C 2111. He also placed reliance in this behalf on two other decisions reported in P L D 1967 Lah. 1138 and P L D 1969 Pesh. 118.

The next contention raised by the learned counsel for the appellant was regarding the alleged default of four months i.e. from January 1981 to 30th April, 1981. In his submission, the rent for these four months had not become due and payable at the time of making of the ejectment application on 20th May, 1981, inasmuch as, as submitted earlier, the rent for the whole year of 1981 was to be paid in January/ February, 1982. He urged that the impression of the conduct of the applicant in the mind of the respondent by accepting the rent on yearly basis and that too after the expiry of the relevant year, was of great importance. The counsel placed reliance on a decision of this Court reported in P L D 1984 Kar. 373.

His next contention was that there is no specific provision in the Ordinance nor was there any such provision in the West Pakistan Urban Rent Restriction Ordinance, 1959, that the rent would be paid either on monthly or yearly basis. In the absence of any specific plea or provision, the learned counsel so urged, it was the arrangement for agreement made between the parties which is to be taken into consideration. In the instant case, notwithstanding the present agreement in writing, the case regarding the payment of rent shall be governed by the conduct of the parties particularly that of the landlord who had been, as already stated, received the rent on yearly basis. The principle of estoppel would thus come into play. The respondents shall be deemed to have waived their right of receiving the monthly rent in terms of the written agreement. In the facts and circumstances of the case, Mr.Farooqui so urged, it could not be said that the respondents had committed deliberate default in payment of rent. As a matter of fact, there was, in his submission, no default at all. The counsel drew my attention to a latest decision of Supreme Court reported in 1986 S C M R 1857 to contend that despite the tenant not having paid rent as per terms of the written agreement, it is the conduct of the landlord himself which would furnish sufficient justification to appellate Court to exercise its discretion against him in dismissing the ejectment application. In this connection he also placed reliance on P L D 1976 Lah. 1052 and P L D 1982 Kar. 188, PLD 1965 Lah. 11, 1982 C L C 217 and 219.

7. Mr. Mohammad Sadiq, learned counsel for the respondents, submitted that in the first instance it is specifically provided in the agreement of tenancy that the monthly rent shall be paid in advance. It was also so averred in the legal notice dated 21-4-1981 served upon the appellant that the monthly rent shall be paid in future immediately upon its falling due and that no delay shall be further condoned. Moreover, in the said legal notice the arrears of rent were demanded for 16 months and not for 12 months. The failure on the part of the appellant to refute its contents is a clear pointer to the fact that the facts as stated therein were correct. He then drew my attention to the decision of the Hon'ble Supreme Court (Full Bench comprising of five learned Judges) reported in P L D 1984 S C 32 in which it is held that the practice of collecting accumulated rents was of no avail in explaining the default. He also sought to place reliance on a decision of this Court reported in 1984 C L C 1843 to contend that the burden to prove the payment of rent for the period in question was on the appellant which he has failed to discharge as much as no rent receipt has been filed. The counsel further contended that the introduction of the name of Khursheed Ahmed in whose presence the rent of the year 1980 was allegedly paid is an after thought and had not been pleaded in the written statement .

9. I have given my earnest consideration to the submissions made at the Bar and have also perused the pleadings as well as the evidence prevalent-on-record with the assistance of the learned counsel for the parties.

10. From the facts narrated above and on the basis of the documents prevalent-on-record it is an admitted fact that the rent for the year 1980 as well as for the first four months of 1981 was not paid to the respondent by the time the notice dated 21-4-1981 was served upon the appellant. It was after the service of said notice that, according to the appellant, he paid the rent for the year 1981 without obtaining the receipt notwithstanding the fact that the respondent No.1 had clearly mentioned to him that there was a dispute going on between the family members with regard to the property in dispute. The explanation with regard to the non-payment of rent for the first four months of 1981, as already stated, given on behalf of the appellant is that the rent of 1981 was not due and payable until the expiry of rent on yearly basis and that too after the expiry of the whole year, I think the fate of this appeal can be finally determined on the basis of the allegations made by the respective parties. If the contention of the appellant regarding the payment of the rent of 1980 without obtaining the receipt is accepted then the question of his reasonableness or justification in not making the payment of rent of four months of 1981 would not arise.

11. On the basis of the evidence prevalent-on-record I am convinced, for the reasons to follow, that the appellant had failed to pay the rent for the 12 months of 1980.

12. It is not disputed that the notice referred to above was duly served upon the appellant. It is also an admitted fact that the rent for whole year of 1981 was due and payable by the time the said notice was served upon him. The rent was, however, alleged to have been claimed by the appellant in the presence of one Khurshid. The name of this witness was, in the first instance, not disclosed at the initial stage and secondly during the cross of the respondent it was not specifically ascertained that at what point of time and on what date the rent was paid in the presence of the said witness. The question was no doubt put to the respondent No.1 that the rent had been paid in the presence of another person but at what time and in what manner there was no suggest on given to her nor was it so specifically deposed either by the appellant or his witness Khurshid. In the written statement it is clearly stated that in the month of February the opponent himself went to the respondent No.1 to pay the rent but in his affidavit-in-evidence he has stated that the rent was sought to be paid in the presence of Khurshid in 1981 when the same was not accepted by respondent No.1 on the ground of alleged dispute in the family in respect of the property in question. This improvement in the case by the appellant gives a clear impression that the plea of the appellant regarding the rent having been offered and accepted in the presence of Khurshid is an afterthought.

13. It is, I further find, much against the normal human conduct to pay the rent without obtaining the receipt in the presence of the fact that the legal notice had been duly served and that the landlady had expressed clearly to the tenant that there was a dispute with regard to the ownership between the family members. I cannot pursuade myself to accept the veracity of the statement of the appellant in his affidavit and so also the affidavit of his witness Khurshid. The respondent No.1 had claimed the notice of rent for 16 months thereby ignoring the alleged practice of receiving the rent on yearly basis. In the normal course it was expected of the appellant that he should have made a reply to the said notice stating the fact that the rent for the four months of 1981 was wrongly claimed and that he was not liable to pay the same. Without getting that dispute settled in agreement with the respondents the appellant was in accordance with the normal human conduct expected to have tendered the rent after obtaining the receipt in the first instance and in case the respondents had declined to issue the receipt then he should have, if he at all wanted to pay the rent for the whole year only, deposited it in court.

14. The contention of the learned counsel for appellant that the absence of cross-examination of Khurshid on the fact of his accompanying the appellant is also of no avail inasmuch as in cross-examination of this witness it was specifically suggested that he had come to give he was a false witness and did not of the facts about the case there was no further use of putting specific question with regard to the two occasions when he had allegedly gone to the respondents for making the payment of rent for the year 1980.

15. Having reached the above conclusion there is no escape from holding that notwithstanding the practice prevalent between the parties with regard to the payment of rent in lump sum after the expiry of the whole year, there was a default on the part of the appellant for making the payment of rent for the year 1980 even as per alleged practice prevalent between them. I am unable to pursuade myself to agree with the learned counsel for the appellant that the case as set up by the appellant with regard to his paying rent without obtaining receipt was justified in the facts and circumstances of the case. No sane person would part with the amount of rent for the whole year without obtaining the receipt more particularly when he had been served with a legal notice claiming the rent of that year and also of the four months of succeeding year. I, therefore, hold that there was a deliberate default on his part to make the payment due and payable by him to the respondents.

16. Under the aforesaid facts and circumstances of the case I do not feel called upon to deal with the question of estoppel, waiver and acquiescence as very ably argued by the learned counsel for the appellant.

17. I would, therefore, without going into the facts whether or not there was a default in payment of rent of four months of 1981, hold that the appellant had failed to establish the payment of rent for 12 months of 1980. Thus, even if for the sake of argument the case as set up by the appellant with regard to the payment of rent on yearly basis is accepted then too the default in payment of rent from January to December, 1980 has been proved beyond any shadow of doubt. The finding (if the learned Rent Controller in this behalf is, therefore, upheld.

18. I find myself in agreement with the learned Rent Controller when she observed that, "it is not believable that the tenant will make payment after the notice without receipt".

The evidence of the witness Khurshid is, in my opinion, unbelievable for the reasons stated by me, although his evidence could not be discarded simply for the reason that he happened to be the neighbour of the appellant/ tenant as observed by the learned Rent Controller.

19. For the foregoing reasons, I would maintain the impugned order and dismiss the appeal with no order as to costs.

20. By consent of the parties six months' time from today is allowed to the appellant to vacate the premises subject to his depositing the rent regularly in terms of the order of the Rent Controller. If there appears to be any default in payment of rent ejectment shall take effect without any further notice.

21. Mr. Muhammad Sadiq, at this stage, pointed out that he had already made an application for withdrawal of rent already deposited in the lower Court to which Mr.R.H.Farooqui has no objection. The rent lying with the Nazir of the lower Court in the Rent Case No.2356/81 shall be allowed to be withdrawn by the respondents.

S.Q./M-227/K Appeal dismissed.

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