MAJEED AHMAD Versus ZUBAIDA BEGUM
This is an appeal under Section 21 of the Sind Rented Premises Ordinance, 1979, against the order dated 28‑5‑1984 passed by the learned VIII‑Senior Civil Judge and Rent Controller, Karachi in Rent Case No.1748/72, allowing the application of the respondents and directing the appellants to hand over vacant possession of the tenement within two months of the date of the order.
2. The facts giving rise to this appeal, briefly stated, are that the appellants are tenants in respect of shop premises No.6 situated on plot No. M.II/E/612 (Old No. D‑694), Shershah Colony, Shershah Road, Karachi at a monthly rent of Rs.230. There is no tenancy agreement in writing. On 10th August, 1972 the respondents mother, the landlady, now deceased filed an ejectment application under Sind Urban Rent Restriction Ordinance, 1959, .on the ground of default in payment of rent for period from February, 1972 to 31st July, 1972. The appellants in their written statement took a plea that Abdul Mannan one of the sons of the deceased respondent (Mst. Shamsunnisa Begum, the applicant landlady who had instituted the case) had taken a loan of Rs.1,300 from the appellants which was not returned and Abdul Hannan Pasha, another son of deceased landlady, who used to collect rent of the premises, promised either to repay the aforesaid amount of loan or to adjust the same in the rent. The learned Rent Controller by his order dated 16‑4‑1974 ordered the appellants to lead their evidence first, as burden of proof was on them. It is noticed that the appellants failed to produce any evidence as required under section 19 (4) of the Sind Rented Premises Ordinance, 1979 until 40 May, 1980 when one of the appellants filed his affidavit in evidence. His cross‑examination was however deferred for one reason or the other till 3‑3‑1981 when he was ultimately cross‑examined. On the said date it was stated by the appellants' counsel that he had applied to the Court for summoning of witnesses, namely, Abdul Mannan and Abdul Hannan but they give up Abdul Mannan. In view of this statement, the evidence of Abdul Mannan who was present in Court was recorded. However, the case was put off to 4‑4‑1981 with a direction that if the appellants wanted to examine any witness, they could produce the same on the next date of hearing. On 4‑4‑1981 the appellants filed two affidavits in evidence of Muhammad Umar and Abdul Mannan. The matter was adjourned to 25‑4‑1981 for cross-examination of the appellants' witnesses, when Mohammad Umar was cross‑examined, but Abdul Mannan could not be examined as he was not present in Court. The appellants appear to have taken out summons for production of the said witness Abdul Mannan, but the matter was adjourned as he was reported by the bailliff to be not available on the address given by the appellants. The appellants' counsel filed another application under Order 16, Rule 1, C.P.C. which was granted on 15‑11‑1981, but the said witness could not again be served. On 8‑2‑1982 the appellants filed an application under Order 16, Rules 10 and 12, C.P.C. The learned Rent Controller by his order dated 14‑2‑1982 directed the appellants to find out the whereabouts of the witness and produce the same on the next date of hearing. On 20‑3‑1982 an application was filed by the appellants seeking direction to the respondents to produce the witness Abdul Mannan although he was their own witness. On 19‑9‑1982 this application was rejected by order dated 19‑9‑1982. On 27‑1‑1983 the appellants filed another application under Section 151 C . P. C . almost repeating the same request as contained in the earlier application, for a direction to the respondents to produce the witness. This application too met with the same result. The side of the appellants was closed on 3‑3‑1983 and the respondents were ordered to produce their evidence. The learned Controller after recording the evidence produced by the respondents and hearing arguments of the counsel for the parties allowed the ejectment application, holding that the appellants have committed default in payment of rent within the meaning of Section 15 (2) (ii) of the Ordinance and ordered their ejectment from the premises in question against which the above appeal has been preferred.
3. Mr. Malik Mohammad Saeed, learned counsel for the appellants submitted that the learned Rent Controller failed to take into consideration the averments made by the appellants in the written statement supported by their witness Abdul Mannan who filed his affidavit in evidence. His position, according to the counsel, was not that of the appellants' witness alone, but he had become a co‑owner after the death of his mother in November 1975, and was a co‑applicant in the case before the learned Controller.
4. I am not at all impressed by his submission for a number o reasons, namely, that the witness was not produced for cross-examination as required under Section 19 (4) of the Sind Rented Premises Ordinance, 1979 and, secondly, notwithstanding the position of the said witness becoming a co‑owner or co‑applicant, his position, in law, remains that of the appellants' witness. The submission of the counsel that the statement of the said witness contained in his affidavit in Para 5 of his affidavit that the said amount of Rs.1300 was adjusted towards rent of the tenement is of no avail to him, firstly, because the adjustment of rent, as alleged, pertained to the Period from February 1972 to July, 1972 when he was neither a co‑owner, nor a rent collector, because the other witness who was examined by the appellant, namely, Abdul Hannan Pasha, a co‑applicant and rent collector during the life time of his mother, has categorically) denied, in clear terms, the alleged receipt of Rs.1300 or its adjustment in rent. In any case, the statement of Abdul Mannan as co‑applicant will bind him alone and not the other four respondents /applicants) landlords. Furthermore; there is a contradiction in the two statements of the appellants. As per their written statement, it was Abdul Mannan, who was alleged to have taken a. loan 'of Rs.1300 from the appellants, whereas in the cross‑examination a suggestion was made by the appellants to the respondents' attorney that his mother had taken a loan of Rs:1300 from the appellants, for the marriage of her son, Abdul Mannan. Furthermore, it was stated in the written statement that Abdul Hannan Pasha, who was the rent collector of the landlady and now a co‑owner/co‑applicant had agreed to repay or adjust the said amount of Rs.1,300 towards rent but this has been clearly denied on oath by Abdul Hannan Pasha, as their own witness. Therefore, the submission of the counsel that since the amount of loan was not repaid it was liable to be adjusted towards rent is not believable. It is also noticeable that the appellant No.2 who went into the witness box had stated that there were 3 or 4 employees of the respondents before whom the said amount of Rs.1300 was paid but none of them was produced or even summoned as witness. Moreover, letter Ex. 'C' of appellant No.2 enclosing their cheque being rent for the months of February 1972 to July, 1972 is silent about it. They have not claimed either adjustment of the so‑called loan or compensation.
5. Learned counsel for the appellants further submitted that the respondents were liable to pay compensation to the appellants for the loss suffered by them on account. of displacing of electricity or demolition of the wall at the time of construction of the hall for another tenant, namely, Muslim Commercial Bank. This contention too, is without any substance. The letter of undertaking dated 11‑2‑1972 signed by Abdul Hannan Pasha, the then rent collector of the landlady is silent about the adjustment of the claim, if any, in rent. That may be a subject‑matter of a separate claim, if proved properly, but has no relevance to the question of default in payment of rent. In fact, the very tendering of the amount of rent by the appellant through cheque dated 19th July, 1972 without making the slightest reference to any settlement either by way of adjustment loan amount or the claim of compensation makes the plea as dubious. I agree with the observation of the learned Rent Controller that it seems to be an afterthought.
6. Now, it is to be seen whether the appellants paid or tendered the rent due within the time allowed under Section 15 (2) (ii) i.e. within sixty days after the rent became due. There is no dental that the rent was due from February 1912. The rent, under the law, ought to have been paid or tendered latest by the 1st of May, 1972. Admittedly, the rent was tendered by letter dated 19th July, 1972. The respondents were justified in refusing to accept the said payment by cheque, after the default had already been committed b the appellants.
7. For the reasons aforesaid, I find no justification to interfere with the order of the learned Rent Controller. The appeal, is therefore dismissed.
8. Mr. Malik Mohammad Saeed requests that since the premises iris question is a shop, three months' time may be allowed to the appellants to vacate the premises. I, however, allow two months' time to the appellants to vacate and hand over the premises to the respondents subject to depositing rent regularly in terms of the order of Rent Controller, failing ‑which the appellants will be liable to be ejected without notice.
A . A . /M‑424/ K ??????? Appeal dismissed.