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First Rent Appeal No. 247 of 1984, decided on 29th March, 1987.

‑‑‑Ss. 15(2)(ii) & 21(1)‑‑Ejectment proceedings‑‑Default‑‑Proof‑‑Where receipt of disputed rent of premises, allegedly remitted by tenant through money order was expressly, denied by landlord, such receipt thereof, should be proved by tenant by confronting landlord with signatures on receipt or by comparing his signatures with some admitted signatures‑‑Payment of such remitted amount was to be proved by tenant by examining postman concerned and tenant having failed to do so there was no escape, from conclusion that tenant had failed to prove payment of disputed rent to landlord‑‑Default having been proved, no just exception could be taken to eviction order passed by Rent Controller in circumstances.

S. Inayat Ali for Appellant.

M. Sadiq for Respondent.

Date of hearing: 10th February, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance") is directed against the order of the learned XII Senior Civil Judge/ A.S.J./Rent Controller, Karachi, dated 8‑2‑1984, whereby she has allowed the application and directed the appellant to handover vacant possession of the premises in question within 60 days from the date of order.

2. Mr. Muhammad Amin, the appellant, is tenant of the respondent Muhammad Amin Abdul Karim in respect of premises No. 2/B‑1, Plot No. RC‑II/21/2, Fateha Kassiram Street, Karachi on a monthly rent of Rs.40. The respondent filed Rent Case No. 430/81 on 25‑1‑1981 for ejectment of the appellant on the ground that he had not paid/ tendered rent from June, 1980 to December, 1980. The appellant contested the said application. His case was that the respondent declined to accept the rent from the month of July, 1980 and onwards although it was offered to him from month to month. Consequently, on 8th September, 1980, the appellant remitted the rent for the month of July to December, 1980 by money order which the respondent received. He further pleaded that thereafter the respondent refused to accept the rent and hence the appellant started depositing it in Court vide Misc. Rent Case No. 1740/81 filed in the XII court of Senior Civil Judge and Rent Controller at Karachi. The rent for the period from June, 1981 to December 1981 was according to him, duly deposited in the Court. The appellant thus denied that he was a regular defaulter and was liable to be ejected on this score. The parties led evidence through affidavits. On behalf of the respondent one Suleman son of Abdullah, his duly appointed attorney appeared as a witness whereas the appellant filed his own affidavit‑in‑evidence. Both of them were cross examined by the advocates of respective parties. The learned Rent Controller by his impugned order allowed the application for ejectment as stated above.

3. Syed Inayat Ali, learned counsel for the appellant submitted that under section 15(2)(ii) of the Ordinance it is provided that an application for ejectment can be filed if a tenant fails to pay rent, in the absence of mutual agreement, after the expiry of 60 days from the date when the rent becomes due for payment. The default in payment of rent was claimed to have been committed for the months of June, 1980 to December, 1980 whereas there was, in his submission, no default is so far as the months of November and December, 1980 were concerned inasmuch as the rent for November, 1980 could be paid by 30th January, 1981 and that of December 1980 by 30th March, 1981 whereas the Ejectment Application was filed on 25‑1‑1981 when no cause of action had accrued for filing this application in respect of any of the said two months. Thus, according to the learned counsel for the appellant, there remained, as per Rent Application, the default for the months of June, 1980 to October, 1980 i.e. for five months only. He contended that the rent for the months of January, 1980, to June, 1980 was admittedly paid vide Rent Receipt dated 5‑2‑1980 Ex. A/2, issued by the respondent. He then contended that a sum of Rs.240 was remitted to the respondent by money order which he received on 22‑9‑1980 as per postal receipt Ex. A/3. This amount, according to him, covered the rent for the period of six months i.e. from July, 1980 to December, 1980. The counsel, therefore, vehemently contended that there was no default whatsoever in payment of rent on the part of the appellant and hence there was no cause of action accrued to the respondent for filing the Rent Case. He drew my attention to paragraph 2 of the written statement wherein it is specifically pleaded by the appellant that he had remitted rent for the months of July 1980 to December 1980 by money order on 8th September, 1980 but it was not controverted in the affidavit‑in‑evidence of Suleman son of Abdullah, the attorney of the respondent. He then urged that in his cross examination the respondent's attorney further clearly stated that he did not know that the appellant had paid the rent upto December, 1980 and the rent in Court.

4. Mr. Muhammad Sadiq, learned counsel for the respondent placed reliance on the averments made in para. 3 of the affidavit in evidence of Suleman son of Abdullah, the attorney of the respondent wherein he has deposed that the rent from July 1980 to December 1980 was not paid by the Appellant and hence a sum of Rs.240 had become due. He then submitted that the signature on the money order acknowledgement does not tally with the admitted signature of the appellant or his attorney, who has filed affidavit‑in‑evidence and as such no reliance can be placed on the said. document. Moreover, it does not show the period for which the rent was allegedly remitted to the respondent. He further submitted that the remittance of rent by money order to the respondent was not proved for want of examination of the postman. Thus, the learned counsel for the respondent urged that the allegation of payment of rent for the period from July 1980 to December, 1980 could not be substantiated by any reliable evidence. In reply to the arguments of Mr. Sadiq, the learned counsel for the appellant submitted that neither in his affidavit‑in‑evidence nor during cross‑examination the witness of the respondent deposed that the signature on the money order acknowledgement was not of the respondent or of his attorney. Mr. Anayat Ali, therefore, emphasised that in the absence of specific denial there was no escape from the legal presumption that the amount of money order was in due course received by the payee.

5. I have given due consideration to the submissions made before me and have also carefully perused the evidence of the parties. The learned counsel for the appellant, it may be stated at the outset, did not contest the correctness of the statement of the learned counsel for the appellant that there had been no default in payment of rent for the months of November and December 1980, the payment of rent for the month of June has been proved as well as admitted by the respondent's witness in cross‑examination. The only fact which, therefore, now remains to be ascertained is as to whether there had been a default in payment of rent for the months of July 1980 to October 1980 so as to give a cause of action to the respondent to present the ejectment application. The appellant's case is that the rent for these months as well as the rent for the months of November and December 1980 amounting to Rs.240 had been remitted by money order to the respondent through his counsel Mr. S. Inayat Ali, and the postal acknowledgement thereof has been produced as Annexure 'B' to the written statement. It was received by the payee on 22nd September 1980. The respondent's case, on the other hand, as already stated, in that this amount was not received by him or his authorised agent and that in the absence of examination of the postman the alleged payment of Rs.240 to the respondent remains unproved. The appellant in his written statement had categorically stated that he had remitted on 8‑9‑1980 rent for the months from July 1980 to December 1980 by money order which he, the applicant received. A photostat of receipt of the acknowledgement money order was annexed thereto and marked B .

In his affidavit‑in‑evidence, Suleman, an employee of rent collector of the respondent only averred that "the opponent had not paid the rent since July 1980 to December 1980 when a sum of Rs.240 had become due". In his cross‑examination he stated:‑‑

"I do not know that the opponent has paid the rent upto December 1980 and thereafter he started depositing rent in Court."

He, however, at the same time, specifically stated in the cross-examination that "it is incorrect that the rent from July 1980 to December 1980 was accepted by the applicant sent by M.O. It is exhibited as Ex. A/3 (it is the original of Annexure B to the written statement)". The appellant in his affidavit‑in‑Evidence averred all the facts as mentioned in the written statement. He, however, in cross‑examination admitted that Suleman was the rent Collector of this building and he used to collect the rent some time by coming twice in a month and some times after two or three months. After seeing Ex. A/3 he stated that it does not show for what period, for which premises in what respect and on whose behalf, this money order was sent by Mr. S. Inayat Ali, Advocate.

In view of the express denial of the receipt of the impugned money order sent by Ex. A/3 by Mr. S. Inayat Ali, Advocate, it was obligatory on the part of the appellant to have confronted the witness of the respondent with the signatures in Exh.A/3 and made him to admit that these were either his signatures or the signatures of the payee, namely, Ghulam Muhammad Dossul. The signatures on Exh.A/3 should have also further been compared with some admitted signatures of the respondent or his Rent Collector, Suleman. This was admittedly not done by the appellant. So also to prove the payment of amount remitted by Exh.A/3 to the respondent the appellant should have examined the postman of the area. This too was admittedly not done. In these circumstances and in the presence of the evidence available on record on this point as discussed above there is no escape from the conclusion that the appellant has failed to prove the) payment of rent for the period from July 1980 to December, 1980 to the respondent directly or through his Rent Collector.

6. A bare perusal of Exh.A/3 shows that it does bear the name of payee as "Ghulam Muhammad Dossal" but it does not bear his address. It also does neither show, as already mentioned above, the period for which the amount was remitted nor on whose behalf it was remitted. The name and address of the remitter is that of Syed Inayat Ali, Advocate. It is thus, not only difficult but impossible to connect the amount remitted vide Exh.A/3 with the arrears of rent for the period from July 1980 to December, 1980 payable by the appellant to the respondent. Furthermore, by the time this money order was sent, namely, on 8‑9‑1980, the rent for the months of July and August, or at best of September could be paid and there was no reason given as to why the rent for the further three 'two months, i.e. October, November and December 1980 was remitted. No attempt was made to clarify this position either in the written statement or by the appellant in his deposition. Although it is not necessary to deal with this aspect of the case yet in the passing it may be observed that the amount of rent allegedly sent vide Exh.O/1 on 9‑3‑1981 was for a period of six months i.e., from 1‑1‑1980 to 30‑6‑1980, whereas the amount remitted on 17‑3‑1981, namely after about nine days of Exh.O/1, vide Exh.O/2 was only in respect of 3 months i.e. January 1980 to 31st March, 1981. Moreover, in none of these two documents Exh.O/1 and O/2. It is mentioned that the rent for the months of July to December, 1981 was remitted by money order and that it had been received by the respondent.

7. Having reached the conclusion that the rent for the months of July, 1980 to October, 1980 was not paid to the respondent, I am clearly of the view that no just exception can be taken to the impugned order whereby the appellant has been directed to handover the vacant possession of the premises in question to the respondent.

8. In the result, the appeal fails and is hereby dismissed with no order as to costs. However, the appellant is allowed two months time to put the respondent in possession of the premises subject to the condition that the appellant shall continue to deposit .the rent in terms of the order of the Rent Controller. If he fails to do so he shall be liable to be evicted without any further notice to him.

H.B.T./M‑126/K Appeal dismissed.

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