NAJMA Versus TARIQ QADEER KHAN

This appeal arises out of the order of the learned X Senior Civil Judge and Rent Controller, Karachi, passed in Rent Case No.4343 of 1980 whereby he has ordered the eviction of the appellant from the disputed premises, namely, Flat No.5, Block‑D, A1‑Ahram Plaza, Gulshan‑e‑Iqbal, Karachi, (hereinafter called the "demised premises").

2.The facts giving rise to this appeal are these. The respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance") on 3‑8‑1980 seeking eviction of the appellant on the ground of default in payment of rent for three months viz: May, June and July, 1980. The rate of rent was claimed to be Rs.800 per month as per agreement dated 24‑5‑1980 was executed between the appellant and the respondent. It was averred in the application that the demised premises were originally let out to the husband of the appellant on a monthly rent of Rs.700 and upon his demise in 1979 a fresh agreement dated 24‑5‑1980 executed between the parties whereunder the rent was enhanced to Rs.800 per month and the amount of security deposit was to me made in the sum of Rs.4,200. It was also averred therein that the deceased husband of the appellant had originally deposited a sum of Rs.4,200 with the respondent but three months' rent out of it at the rate of Rs.700 was adjusted and hence at the time of his death there was a security deposit of Rs.2,100 lying with the respondent. The appellant filed written statement in the said application alleging that the agreement dated 24‑5‑1980 had been obtained through fraud and that she had neither agreed to the enhancement of rent to Rs.800 per month nor to the payment of security deposit in the sum of Rs.4,200 by depositing a further sum of Rs.2;100 besides the sum of Rs.2,100 already lying deposited with the respondent out of the security deposits made by her late husband. She also pleaded that the rent for the months of April, May and June, 1980 had been paid by her in cash to the respondent but no receipt was issued to her.

3.Out of the pleadings of the parties the learned Rent Controller framed the following issues:‑

(1) Whether the tenant is a wilful defaulter in payment of rent?

(2) What should the order be?"

The respondent examined himself and also his father M.A. Qadeer whereas the appellant examined in support of her case herself and one Javed.

4. The learned Rent Controller held on the basis of the agreement dated 24‑5‑1980 that the appellant had withheld security deposit of Rs.2,700 and declined to pay the Rs.800 per month and thus committed default for the months of May, June and July 1980. He, therefore, allowed the application as stated above and directed the appellant to vacate and handover peaceful possession of the demised premises to the respondent within four months from the date of the order viz: 20‑11‑1984.

5. Mr. M. Ibrahim Abbasi, learned counsel for the appellant, contended that the fresh agreement dated 24‑5‑1980 (Ex.l/1) is not a legal document inasmuch as it has been executed in defiance of provisions of section 5 of the Ordinance and hence it is not binding on the parties. Alternatively, he pleaded that even otherwise it is not a valid document for having been obtained through fraud and also because of the fact that all the executants and witnesses did not sign it on the one and the same day and at the same time. In support of his contention the learned counsel sought to place reliance on a decision reported in 1986 CLC 1613. His next contention was that the contents of the said agreement (Ex.l/1) were not explained to the appellant who besides being a lady was ignorant of English language and as such its contents cannot be held to be binding on her. With regard to the alleged adjustment of Rs.2,100 from the security deposit of Rs.4, 200 made by her late husband to the respondent was not proved on record. He emphasised that neither any specific evidence has been led to this effect nor could it be proved through the rent receipts issued showing that the amount was actually not paid in cash but was adjusted from the security deposit lying with the respondent. He, therefore, strongly pleaded that the case of the appellant to this effect was not proved through any documentary evidence. He also challenged the alleged factual statement made in the application that the deceased husband of the appellant Abdul Rashid was out of job. On the contrary, the learned counsel drew my attention to the evidence of P.W.1 to show that the above statement in the application is belied by his own deposition in Court. The default of three months' rent was disproved by the evidence of P.W.1. She had in para 3 of her affidavit‑in‑evidence clearly stated that the rents for the three months, namely, May, June and July, 1980 had been paid to the respondent but he had not issued any receipts therefore. This statement, the learned counsel emphasised, has not been doubted or challenged in cross‑examination of the appellant. The learned counsel for the appellant drew my attention to the alleged admission made by the respondent in his cross‑examination to the effect that no amount of rent was due from the appellant. When I pointed out to him that there appears to be an omission, of a word 'not' in the deposition thereby to show that the amount was actually due, the learned counsel submitted that if it was so the respondent should have taken care to get it corrected and on account of his failure to do so no such presumption should be drawn.

6. Mr. Mohammad Ali Shaikh, learned counsel for the respondent, at the outset conceded that the agreement in question (Ex.l/1) is not in accordance with section 5 of the Ordinance. He, however, urged that notwithstanding the fact that the provisions of section 5 have not been complied with yet the evidentiary value of this document cannot be totally denied or ignored. However, upon his second thought to the proposition the learned counsel agreed that this document cannot be looked into for the purposes of determining the rate of rent etc. Making his submission with regard to the default of three months' rent in question the learned counsel for the respondent drew my attention to the deposition of the appellant in cross‑examination wherein a question was put to her that the rent for three months was due and payable to which she made an answer in the negative. When I drew his attention to para 3 of affidavit‑in‑evidence the appellant wherein she has stated that she had paid the rent for May, June and July and that no receipt was issued to her and that there was no specific question put to her during cross‑examination controverting this fact, the learned counsel was unable to make any convincing reply. He could not dispute the proposition that the respondent had in fact put his case to the appellant with regard to the arrears of rent but it could be taken that it was not to controvert the factual statement made by the appellant in para 3 of her affidavit in‑evidence. The learned counsel for the respondent did not, however, choose to make any submissions with regard to the other contentions made by the learned counsel for the appellant.

7. Having considered the submissions made before me and after going through the evidence available on record I am convinced that the learned Rent Controller has patently fallen into an error in allowing the application for ejectment of the respondent. I would, firstly, like to point out at the outset that admittedly as per statement made in the application the respondent was in possession of a sum of Rs.2,100 out of the total security deposit of Rs.4,200 made by the deceased husband of the appellant and hence there was sufficient amount available with the respondent to adjust the alleged three months' rent against the said amount of Rs.2,100. This aspect of the case the learned Rent Controller has completely overlooked although he was legally expected to have examined the case from this angle as well. Now coming to the facts of the case as deposed to by the parties in their affidavit‑in‑evidence and during their respective cross‑examinations I find that the version of the appellant appears to be factually correct. Her statement with regard to the payment of the three months' rent of May, June and July, 1980 made in para 9 of her affidavit as already stated above, has not been controverted or doubted during her cross‑examination. Her deposition in this behalf, therefore, remained unchallenged and hence is to be accepted as such. Upon the basis of this solitary statement it can be conveniently held that the appellant was not in arrears of rent as alleged in the application. However, from the documentary evidence adduced by the appellant through the respondent in the form of rent receipts it is further proved that not a single month's rent was in arrears for the year 1979. The alleged payment of three months' rent out of the security deposit is not borne out from the receipts in question which have been duly executed. Hence the plea of the respondent to the effect that three months' rent was adjusted from the security deposit lying with him, therefore, remains unproved.

8. In view of the concession made by the learned counsel for the appellant with regard to the illegality of the document viz, Agreement of Lease (Ex.l/1), I am not inclined to go into that question. It is otherwise obviously a document which does not comply with the provisions of law as contained in section 5 of the Ordinance and hence it has got no evidentiary value in so far as the terms agree< upon between the parties regarding the rate of rent etc. are concerned

9. For the foregoing reasons, I allow this appeal with costs. The order of the learned trill Court is set aside.

H.B.T./‑‑N‑73/K Appeal allowed