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First Rent Appeal No.254 of 1984, decided on 10th May, 1987.

-S. 15(2)(ii)--Default in payment of rent--Proof--On denial of landlord to have received disputed rent of premises, burden to prove payment of such rent was on tenant--Plea regarding mode of payment of rent set up by tenant in written statement entirely different from plea subsequently taken by him--Rent Controller, held, was fully justified to hold that tenant failed to pay rent.

Farooq H. Naik for Appellant.

M. Mairaj Ahmed for Respondent.

Date of hearing: 24th March, 1987

This appeal under Section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the order dated 17-2-1984 passed by the XVth Senior Civil Judge/Rent Controller, Karachi, whereby .she allowed the eviction application on the ground of default and directed the appellant to hand over the vacant possession of the premises in dispute within one month from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is the owner of Bungalow No.6/3/E, Mohammad Ali Co-operative Housing Society, Karachi and the appellant is tenant of back portion of first floor of the said bungalow at the monthly rent of Rs.500 plus Rs.20 as water and conservancy charges. The respondent filed eviction Application No.2858/79 against the appellant on the ground of default in payment of rent for the period from 1-8-1978 to 30-4-1979 amounting to Rs.4,500 and Rs.180 as water and conservancy charges totalling to Rs.4,680- and also on the ground of personal requirement. The appellant resisted the eviction application. The appellant contended that it has been the custom, practice and tradition of the respondent to collect rent from the appellant through her attorney in lump sum. The appellant used to pay rent to the respondent's attorney whenever he used to come and demand rent from the appellant. The appellant was neither aware of the address of the respondent and her attorney:

The respondent filed her own affidavit-in-evidence in support of the evidence application besides affidavit-in.-evidence of her brother and attorney Mohammad Akram and Mst. Shakila. The appellant filed affidavit-in-evidence of Israr A.M. Syed. They were cross-examined by the learned counsel for the respective parties.

The respondent repeated the same facts in her affidavit-in evidence that the appellant fell in arrears of As.4,500 being rent for the disputed period and Rs.180 as water and conservancy charges. The respondent denied that her attorney collected the rent periodically at his convenience-and sweet will. She stated that her attorney always insisted on receiving the rent regularly every month but the appellant used to put him off on the pretext or another. She also denied that the appellant was not aware of the address of the respondent. The address of the respondent is shown in the tenancy agreement.

Muhammad Ikram brother and attorney of the respondent stated in his affidavit-in-evidence that he always insisted on receiving the rent regularly every month but the appellant used to put him off on one pretext or the other. The attorney denied that he used to collect rent periodically at his will. This witness admitted in his cross examination that he used to go to appellant to collect rent. He produced five receipts as Exhs. A/1 to A/5. He admitted that according to these receipts he received the rent for four months. He denied the suggestion in cross-examination that it was my practice to collect the rent in lump sum. He denied another suggestion in cross-examination that he had not gone to the appellant from 1st February to 30th April, 1979 to collect rent from the appellant. He also denied the suggestion in cross-examination that he used to go to collect the rent from the appellant on his sweet-will.

As against the above evidence the appellant reiterated the-; contents of the written statement his affidavit-in-evidence. The appellant stated that he used to come and demand rent from him. This witness denied the suggestion in cross-examination that appellant was irregular in payment of rent and used to pay collection rent of months together and voluntarily stated that respondent herself had told appellant to pay Rent Collection of several months as she was changing address. This witness to a question in cross-examination replied that it is incorrect to say that after June 1978 appellant had not paid rent. This witness to a question in cross-examination replied that it is incorrect to say that the rent collector of respondent used to come to him. This witness to a question in cross-examination replied that "it is correct to say that I had not tendered rent to the respondent as she herself used to come to take rent". This witness to a suggestion in cross-examination replied that "I have all the rent due against me to applicant. The rent receipts were some time issued by the applicant and some time not. I do not remember that upto which period I have paid rent".

The appellant firstly stated in para 4 of written statement that it has been the practice of the respondent to collect rent from the appellant through her attorney it lump sum: Secondly the appellant used to pay rent to the respondent's attorney whenever he used to come and demand rent from the appellant. Thirdly he has not aware of address of the respondent and her attorney.

The respondent denied the pleas taker, by the appellant in her affidavit-in-evidence that her attorney used to collect rent periodically at his convenience and sweet-will. The respondent's attorney further stated that he insisted on receiving rent regularly every month but the appellant used to put him off on one pretext or the other. He also denied that he used to collect rent periodically at his sweet-will. This witness denied in cross-examination that it was his practice to collect the rent in lump sum. This witness also denied the suggestion that he had not gone to the appellant to collect rent from 1-2-1978 to 30-4-1979.

The appellant's attorney set up a new plea in his affidavit-in -evidence that the rent from February 1978 to April 1978 was paid in the presence of Noor Mohomed Shah.

It is an admitted position that the rent for the disputed period 1-8-1978 to 30-4-1979 was not paid to the respondent. The plea as set out in written statement is that attorney used to collect rent periodically. This plea was denied by the respondent and her attorney. Both of them categorically stated that the attorney insisted on receiving rent regularly every month. The burden was on the appellant to discharge this burden. The appellant came out absolutely, with another plea which was not taken in his written statement that the rent for February 1979 to April 1979 was paid in the month of April 1979. This plea was also not substantiated as the respondent and be attorney were subjected to lengthy cross-examination but no suggestion was A made to them that the rent from February 1979 to April 1979 was collected by the respondent or her attorney. The attorney of the respondent appeared in the witness box but no suggestion was made to him that the appellant was ready and willing to pay rent every month and at the suggestion of the attorney he used to pay in lump sum. In this state or evidence on record, the Controller was fully justified to hold that the appellant failed to pay rent as agreed. The respondent and her attorney have denied that there was any agreement between the parties for payment of rent periodically.

In view of the above discussion, it is a clear case where the appellant had committed deliberate default in payment of rent. The other plea of incomplete address will also not help the appellant. It is admitted position that the obligations imposed upon a tenant to pay or tender the rent id the manner prescribed by law has not been discharged by the appellant in this case.

For the reasons stated above I find no merits in this appeal which is dismissed. The appellant is however allowed four months time to vacate the premises and hand over vacant possession of the premises in dispute to the respondent provided he continues to deposit rent with the Nazir of the Court for this period.

There shall however be no order as to costs.

H . B . T . / M-258/ K Appeal dismissed

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