GHAYASUDDIN AHMAD Versus ABDUL WALI

The respondent Abdul Wali brought an application for the eviction of the appellant from the premises in dispute on the grounds of default and personal bona fide use. It is the case of the respondent that Flat No. B‑22 Farida Square Block No. 7, Gulshan‑e‑Iqbal had been gifted to him by his father on 29‑8‑1982. The intimation of the change of ownership was given by him through a notice, dated 23‑12‑1981 demanding the rent from him, with effect from 1‑7‑1982 at the rate of Rs.300. The appellant sent reply on 5‑12‑1982 calling upon him to produce the original documents by which the flat was transferred to him. However, he remitted the rent of Rs.300 stated to be the rent for the month of November, 1982. In the application it has been stated by the respondent that the appellant failed to tender rent, with effect from 1‑7‑1982 to 30‑11‑1982. In the written statement it has been pleaded that rent for the months of July to October, 1982 was remitted to Abdul Majeed, the father of the respondent and rent for November and December, 1982 were sent to the respondent landlord by money orders. He denied the default. He also disputed the bona fide of the respondent to seek the eviction on the personal requirement.

Parties led evidence and the learned Rent Controller decided both the issues against the appellant. It was held by the Rent Controller that the appellant failed to pay the rent for the months of July, 1982 to November`, 1982. It is further observed that once the landlord states to have not received the rent it becomes the duty of the tenant to prove that he had paid the rent. An admission of the attorney of the appellant that the rent for December, 1982 was not deposited in Court was also taken into consideration. It has also been observed that the rent for December, 1982 was not sent at the proper time as the respondent had called upon the appellant to send the rent through his Advocate but the appellant sent the money order on the residential address of the respondent.

2. I have heard the learned counsel for the parties. The Rent Controller while passing the tentative order under section 13(6) on 18‑4‑1983 has observed that the applicant /landlord admits the receipt of money orders, dated 21‑8‑1982, 8‑9‑1982, 25‑10‑1982, 27‑11‑1982 and 28‑12‑1982 but he alleged that these money orders do not pertain to the months in which they were sent. The Rent Controller observed that applicant has not produced any notice from the year of 1977 that he had asked the opponent to clear the arrears except the notice sent in the year 1982. He accordingly ordered the appellant to deposit the arrears of rent from January, 1983 to 31‑3‑1983 amounting to Rs.900. He further directed the appellant to deposit current monthly rent regularly on or before the 10th of each calendar month. Learned counsel for the appellant has submitted that he had made proper tender of the rent to the respondent after he received a notice but the learned Rent Controller fell in error while disposing of this issue. The admitted position is that the flat in dispute was leased out to the appellant by the father of the appellant in the year 1975. He gifted the property to the respondent by means of Deed, dated 29‑8‑1982. The intimation as required under section 18 of the Sind Rented Premises Ordinance, 1979 was sent to the appellant on 29‑8‑1982, claiming the rent, with effect from 1‑7‑1982. After the receipt of the notice the appellant sent the rent to the respondent on 27‑11‑1982 and 28‑12‑1982. This fact has been admitted by the applicant before the Rent Controller as is clear from the tentative order, dated 18‑4‑1983. Though the order was tentative in nature but the admission of the applicant before the Rent Controller binds the applicant. Apart from it is an admitted position that the rent through money orders was received by the applicant's father which was sent to him on 21‑8‑1982, 8‑9‑1982 and 25‑10‑1982. The contention of the appellant is that before he received the notice under section 18 of the Ordinance he had already tendered the rent to the father of the applicant for the months of August, September and October. The rent for the months of November and December was tendered to the respondent through money orders and he has admitted that he has received this rent. But it is the case of the respondent that these money orders relate to the previous rent. The learned counsel for the respondent has stated that he had filed the money order coupons Exh. A/6 and Exh. A/7. The first money order sent by the appellant relates to the month of July, 1982 and the second money order relates to August, 1982 but the appellant has disputed this fact. The respondent was entitled to recover the rent from the appellant from the sate of gift, dated 29‑8‑1982, and if any rent was due against the appellant by the previous landlord then that rent could be recovered by the process of law and the respondent who became the owner of the property in dispute could claim the rent from the date of transfer of the property in his favour. The relationship of the parties as landlord and tenant came into existence when the title and rights of the original owner were transferred to the respondent. He cannot claim the rent which accrued to his father prior to the transfer of the property. Under the law the respondent was entitled to claim the rent due. Rent due is equivalent to due in law. The respondent cannot claim the rent prior to 29‑8‑1982. As the notice under section 18 had been issued on 23‑11‑1982 (Exh. A / 3) , the period of 30 days would start from this date but the appellant tendered rent for the month of November on 27‑11‑1982 and thereafter tendered rent for the month of December on 23‑12‑1982. It is the contention of the learned counsel for the appellant that the rent sent in the month of December was received back as it was refused by the respondent and thereafter he deposited the same in Court. This refusal was intimated to him after the tentative order was passed by the Rent Controller. In such circumstances the finding of the Rent Controller that the appellant was in default is against the material on record. Under the law the initial burden on payment of rent always lies on the landlord to prove that the tenant has defaulted in payment of rent and when this burden has been discharged by the

Miss Page No. 1516 & 1517