RABKA PEST CONTROL LTD. Versus MAHMOODA KHALIL

Rent Case No.2768 of 1975 under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was filed by respondent Mrs. Mahmooda Khalil in the year 1975 on the ground of default in payment of rent from 1st December, 1974 to 31st July, 1975 amounting to ris.20,000 and some conservancy charges from 1‑7‑1974 to 30‑6‑1975 amounting to Rs.869,40.

2. The respondent is owner of double storey Bungalow No.27/B situated in Sindhi Muslim Co‑operative Housing Society Ltd. Karachi which was rented out to appellant from 1st June, 1973 at Rs.2,500 vide agreement dated 14th May, 1973. The appellant filed written statement in which he stated that monthly rent is Rs.1,500 and Rs.1,000 was fixed for additions and alterations of the premises, which have not been done, therefore, respondent is not entitled to receive Rs.1,000. It is averred that on 15th August, 1975 the appellant sent cheque of Rs.7,500 to the respondent but the same was returned. It is stated that after deducting Rs.1,000 per month, which he paid for additions and alterations which were not carried out, the appellant was not in arrears. The Rent Controller by order dated 6‑4‑1976 framed the following issues:‑

(1) What is the rate of rent ?

(2) Whether the opponents have committed wilful default in the payment of rent as alleged in the application ?

(3) What should the order be ?,

He finally allowed the rent application by an order dated 15th March, 1986 and directed the appellant to hand over the vacant possession of the bungalow to the respondent. Appellant being aggrieved against this order has filed First Rent Appeal.

3. I have heard Mr. Farooq fi. Naek, learned counsel for the appellant. It is argued that respondent has failed to carry out additions and alterations in terms of the agreement, therefore, appellant was only liable to pay rent at Rs.1,500 per month. It is contended that at the time of filing of the rent case the appellant was not in default. He has referred to 1987 C L C 1799 and submitted that default is not wilful and there was an agreement that rent was to be paid periodically.

Mr. Mohammad Mazharuddin Siddiqui, learned counsel for the respondent, argued that there was no dispute about the rate of rent, but he has admitted that there was an understanding that rent is to tie paid by the appellant quarterly. It is argued that upto November, 1974, appellant has paid rent at fs.2,50J per month. Thereafter, he committed default and sent cheque of Rs.7,500 after filing of the rent case.

4. There are some points which are not disputed. The relationship is admitted. 1t is also admitted that rent from 1‑12‑1974 to 31st July, A 1975 was neither paid nor tendered by the appellant.

5. Mir 1 halilur Rehman, attorney of the respondent Mst. Mahmooda Khalil was examined. He has stated that house was given on rent to the appellant at Rs.2,500 per month and taken advance 12 months' rent was taken from July, 1973 to May, 1974. Thereafter, he wrote a letter to the appellant to pay the rent for June, July and August, 1974. The amount was sent to him and he has produced letter Exhs.3 and 4. Again on 9th October, 1974 he sent a letter to the appellant for rent of 3 months. He produced letter Exhs.5 and 6, which was not replied. Again on 27th Nov. 1974 a reminder was sent.

From appellants' side one Noor Mohammad was examined. He stated that rent was fixed at Rs.1,500 plis Rs.1,000 per month for additions and alterations of the premises and fitting of iron grils. The rent was payable quarterly after expiry of the quarter. He stated that respondent was not entitled to receive Rs.1,000 as he has not done any work after the inception of the tenancy. He in para.4 of the affidavit stated that on 15‑8‑1975 a cheque of Rs.7,500 was sent, which was refused by the respondent. He has produced the cheque as Exh.ll. He has stated that appellant in all paid Rs.52,^000 plus Rs.869.40 to the respondent and, therefore, the respondent was entitled to receive Rs.39,000 from Ist June, 1973 upto 31‑7‑1975. Thus advance of its.13,500 was still with the respondent.

6. The default according to rent application is claimed from Ist December, 1974 to 31st July, 1975 for 8 months. It has been admitted by both the counsel and it is clear from the record that rent was to be paid to the respondent quarterly. It has also been proved and admitted that rent from December, 1974 to July, 1975 was neither paid to the respondent nor any attempt was made to tender the same. It was a practice that rent was to be paid quarterly, but appellant has failed to do so. It was supposed to pay rent of December, 1974, January, 1975 and February, 1975 to the appellant on Ist March, B 1975 and in the same manner in the second quarter on Ist June. 1975. The rent case was filed after the appellant committed default o 2 quarters. It is also proved that first time on 15th August, 1975 a cheque of Rs.7,500 being rent for 3 months was sent to the respondent, which was refused. The dispute about the additions and alterations and payment of Rs.1,000 thereof was not taken up. Had it been so, the appellant had no reason to send cheque of ks.7,500 on 15th August 1975 to the respondent being the rent for 3 months at ds.2,500. The agreement has not been produced by the appellant. The learned counsel has stated that it is in possession of the respondent. The appellant paid an advance rent at Rs.2,500 per month and on the expiry of that period he denied to have made payments on the same rate. The plea taken by the appellant that Rs.1,000 was for additions and alterations, which were not carried out, cannot be considered at this stage when appellant himself was paying the rent at Rs.2,500 after the expiry of one year. If it was so then the appellant should have regularly and quarterly tendered the rent to the respondent at Rs.1,500 which he has failed to do for 8 months and on expiry of that period and after filing the rent case he again sent cheque of Rs.7,500 to the respondent being the rent for 3 months at Rs.2,500. In these circumstances, the plea of the appellant cannot be sustained. The Kent Controller has rightly come to the conclusion that default has been committed. The facts of the case cited by Mr. Farooq H. 1C Naek are different. In this case there was a practice of periodical payment even then default had been committed, which is wilful.

The appeal having no merits is dismissed with costs.

H.B.T./R‑64/K Appeal dismissed