NASIM AKHTAR Versus BIBI GUL DURRANI

1. This first rent appeal is directed against the impugned order dated 23‑2‑1985 passed by learned XIVth Rent Controller, Karachi, whereby he has dismissed ejectment application.

2. Briefly stated the relevant facts giving rise to this appeal are that appellant Mst. Naseem Akhter is landlady while respondents Mst. Bibi Gut Durrani and her two son,, are tenants in respect of, tenement Flat No.16 Abdullah Manson, Noman Street , Plaza Quarters, Karachi at rental Rs.35 per month. Original tenant was Ghulam Nabi Durrani who died somewhere in January 1979 as such tenancy devolved upon hit widow and two sons. Ejectment application was presented on 24‑3‑1983 on the ground of default are the payment . of rent from January 1979 to February 1983 (3 year‑s plus 2 months.). ‑Heirs of Ghulan Nabi Durrani were impleaded in the application as tenants are in their written statement they have taken the plea that no default has been committee and rent used to be collected on behalf of the landlady periodically. in , lump sum by her husband. It was further averred that after the death of .Ghulam Nabi rent was not accepted on behalf of landlady ;hence it was deposited in Misc. Rent . Case No.5296/81 in the Court of XV Rent Controller, Karachi.

3. In the evidence before the learned Rent Controller landlady examined her husband and attorney Shaikh Abdul Hafeez and on the other hand Mst. Bibi Gul Durrani widow of Ghulam Nabi produced her affidavit in evidence on behalf of tenants. Both these witnesses were cross‑examined by opposite. parties. After assessment of evidence produced by the parties the learned Rent Controller has come to the conclusion that since there is admission in cross‑examination of Shaikh Abdul Hafeez that rent was being paid periodically for one year or more at a time hence there was no default as rent was deposited in Misc. case.

4. I have heard Mr. Munir‑ur‑Rehman for the landlady and Mr. Umar Quraishi for the tenants. It is submitted on behalf of the landlady that burden was upon the tenants to prove that there existed practice between the parties according to which landlady accepted rent periodically and in this context no proof has been adduced and no rent receipts have been, produced in the Court of Rent Controller to show ,the conduct of landlady in accepting the rent periodically and giving,, such impression to the tenants that they should not pay rent regularly every month but in lump sums after long intervals of time. It appears from the perusal of the record. that Shaikh Abdul Hafeez in his cross‑examination has very categorically stated that during the lifetime of original tenant late Ghulam Nabi, rent was A being paid for one year together or after expiry of 4 months and 6 months. He further stated that late Ghulam Nabi was not paying rent regularly. From this it appears that on behalf of the landlady the rent used to be accepted at long intervals and whole examination of evidence of husband of the landlady does not show that rent was accepted late by way of protest and it was considered as an act of condonation. On the contrary in view of this admission it appears that in a routine manner rent used to be accepted periodically. Now going back to the relevant facts, record reveals that Ghulam Nabi died in January 1979 and rent was claimed by the landlady from January 1979 to February 1983 for a period of 3 years and 2 months. According to the tenants rent was deposited on 12‑12‑1981 in Misc. Rent Case No .5296/81 in Court of XVth Rent Controller Karachi where such application was filed on 28‑11‑1981. This fact shows that after death of Ghulam Nabi Durrani rent was deposited late by about one year and this is the plea taken by the tenants that rent used to be accepted in lump sum after about one year and such admission is also made in cross‑examination of Shaikh Abdul Hafeez. Plea was taken on behalf of the landlady that notice of Misc. rent case in which rent was being deposited was not served upon landlady. It is so specifically stated in the cross‑examination of Shaikh Abdul Hafeez. This assertion is factually incorrect for the reason that it is successfully refuted by the tenant who has produced copy of application for certified copies filed on behalf of the landlady in that Misc., Rent Case on 7‑10‑1982. This very clearly. shows that on '7‑10‑1982; landlady was in the knowledge of the fact that tenants have been depositing rent in Misc. Rent Case No.5296 of 1981 and ejectment application 'in this case was filed on 24‑3‑1983 in which false plea was taken; specifically in the evidence that landlady was unaware of the fact that rent was being deposited in Misc. rent case. In the circumstances for the facts and reasons mentioned above no exception can be taken to the impugned order passed by the learned Rent Controller which is hereby upheld and in the result appeal is dismissed with no order as to costs.

5. M.B.A./N‑92/K Appeal dismisse