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First Rent Appeal No.411 of 1985, decided on 19th April, 1987.

---Ss.15 & 21--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13--Ejectment on ground of default in payment of rent- Relationship of landlord and tenant and rate of rent not disputed--No written agreement between parties--Rent, according to tenant, was collected by Rent Collector of landlady who was not summoned nor any document in that respect produced--Witnesses examined by tenant stating that landlady used to collect rent in lump sum in advance and also periodically through her Rent Collector--Tenant in written statement not stating that rent was collected by Rent Collector but clearly stating that rent was paid to landlady or her attorney--Evidence of son of landlady proved that receipts were being issued for payment of rent but practice of lump sum payment of rent between parties not proved--Rent Controller, held, had properly assessed the evidence and rightly allowed the ejectment application.

P L D 1986 S C 154 and 1984 C L C ,196 cited.

Ashraf Khan Tanoli for Appellant.

N.R.Dubash for Respondent.

Date of rearing: 9th April, 1987.

By the appeal under section 21 of the Sind Rented Premises Ordinance, 1979 the order dated 23rd April, 1985 of VIIth Senior Civil Judge and Rent Controller has been challenged.

The Rent Case No.2177/79 was filed by the respondent under Section 13(2) (i) of West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground of default. The tenant alleged to have been failed to pay the rent from 1-4-1977 to 30-4-1979 amounting to Rs.960. Appellant is tenant in respect of Flat No.11 of Saeed Manzil Plot No.S.B.3, 38/2/B 3/41; Napier Street, at the monthly rent of Rs.40 payable in advance on the first of each subsequent month according to English calendar. Appellant filed written statement in which he has stated that as per practice and mutual understanding, the rent was paid quarterly and six monthly to the respondent or her attorney in advance without any receipt. The Rent Controller allowed the rent application on the ground of default and directed the appellant to hand over the vacant possession of the premises to respondent within 60 days from passing of the order.

Saeed Nawabdin son of respondent landlady was examined. He has stated that appellant paid the rent up to March, 1977. Thereafter, he failed to pay rent from 1-4-1977 upto 30-4-1979. He personally visited the appellant, demanded the arrears of the rent but in spite of that no rent was paid. He filed the counterfoils of the receipt book. He has also produced copy of the notice, dated 15th May, 1978 as Annexure 'B' alongwith his affidavit in evidence. Appellant Haji Fayyaz in his affidavit in evidence as Exh.5 stated that respondent has been taking monthly rent in lump sum and periodically in advance but had never issued any receipt thereof and she was receiving the rent from other tenants in the like manner. He has stated that one Sami Nawabuddin servant of respondent /landlady used to come and collect the rent from him. He has stated that he has not committed any default at all.

Mr.Tanoli, appearing for the appellant contended that power of attorney in favour of Saeed Nawabuddin suffers from discrepancies therefore the evidence of attorney of the respondent should be discarded. He has referred to the cases reported in P L D 1986 SC 154 and 1984 C L C 196. It is argued that power of attorney has not been attested by any Magistrate or Oath Commissioner and also was not filed alongwith the rent case. The practice of. collecting rent in lump sum has been pleaded.

Mr.N.R. Dubash argued that appellant has committed wilful in payment of rent and no documentary proof has been produced about the practice of payment of rent in lump sum.

The rent case has been piled by Mst. Amna Bibi. The application bears her signature and so the verifiqation. The application was not filed through the attorney. Evidence of son of Respondent as witness could be considered and discrepancy in power of attorney cannot affect on merits of the case as Rent Application was properly filed. The relationship and the rate of rent is not disputed. There is no written agreement between the parties. The case of appellant is that rent was being collected by Sami Nawabuddin but he was not summoned nor produced any document in this respect. He has examipzu.,NIuhammad Nawaz Exh.6, Ali Zaman Exh.7, Abdul Rehman Exh.8 and Muhammad Saleem Exh.9. They have stated that respondent used to collect the rent in lump sum in advance and also periodically some times yearly and some time six monthly and rent was being collected by the Rent Collector namely Sami Nawabuddin. The affidavit in evidence of Muhammad Ashiq and Charaghuddin were also filed but they were not produced for cross-examination therefore their evidence is not to be considered. Appellant in his written statement has not stated that rent was being collected by Rent Collector Sami Nawabuddin but has clearly stated that rent was paid to the respondent or her attorney. Saeed Nawabuddin son of respondent in his evidence has also produced one receipt dated 1-5-1977. This receipt is on a printed book from which it appears that receipts were being issued for the payment of the rent. The appellant has not taken the plea in the evidence or the written statement as to when and on what dates the lump sum amount of rent paid for such long time. The evidence of witnesses of the appellant can hardly be believed as it is an oral evidence and moreover the practice between the parties has not been proved. The Rent Controller has properly assessed the entire evidence and has rightly allowed the rent application.

For the reasons stated above the appeal having no merits is dismissed.

Mr.Ashraf Khan Tanoli has requested for one year time and submitted that appellant is old tenant I allow six months time to appellant to vacate the premises.

S. Q./F-27/K Appeal dismissed.

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