KHALID JAVED Versus MUHAMMAD IMRAN

ORDER

This second appeal assailed judgment and decree dated 21-7-2003 passed by Additional District Judge, Gujrat, wheieby appeal of respondent No.1 was accepted and an ejectment order for eviction of the appellant was passed, by setting aside judgment/order dated 17-12-2002 passed by the Rent Controller, Gujrat.

2; A short factual background of the case is that respondent No. 1 Muhammad Imran filed an ejectment petition on 14-2-2002 claiming respondent as tenant in his shop at .a monthly rent of Rs.3,500 per month and asserting that appellant has defaulted in payment of rent and that shop in question was needed for bona fide personal need.

3. Appellant being respondent before the Rent Controller controverted the allegations in the ejectment petition and pleaded that original owner of the shop in his possession, was Muhammad Amin, who has died- and after death of the owner his legal heirs have succeeded him but respondent No. l has nothing to do with the ownership and thus he cannot claim it for his personal use. Besides denying personal need of respondent No. 1, default in payment of rent was also disputed. Controversial pleadings of the, parties led to framing of six issues and recording of respective evidence of the parties by the Rent Controller, who on the basis of his appraisal of evidence on 17-12-2002 dismissed the ejectment petition field by respondent No. 1.

4. Muhammad Imran respondent No. l feeling aggrieved of the decision of the Rent Controller dated 17-12-2002 filed an appeal before the Additional District Judge, Gujrat, where he succeeded as his appeal was accepted and ejectment of the appellant was ordered on the ground of default in payment of rent, whereas findings of the Rent Controller regarding personal use and occupation by respondent No. l were affirmed, vide judgment dated 21-7-2003. Appellant has now come up in second appeal before this Court for setting aside ejectment order against him.

5. Learned counsel or the appellant submits that default in payment of rent of two months Le . January and February, 2002 was claimed by respondent No.1 and since written tenancy between the parties had expired, whereafter tenancy will be treated as oral and in view of the provisions of section 13(2)(i) of the Urban Rent Restrictions Ordinance, 1959, rent could be paid within a period of sixty days and rent of two alleged defaulted months having been paid within sixty days, there was no default on part of the appellant, as such his ejectment could not have been ordered. He in support of his contention referred to the case of Muhammad Baqar Qureshi v. Mst. Razia Begum (1981 SCMR 18) and Asad Ejaz Ahmed v. Rent Controller. Multan and 2 others (2000 UC 242). He further submits that view taken by the first Appellant Court is not in consonance with the judgments of the superior Courts because according to him receipts Exh.R.1 and R.2 establish that dispute of payment of rent stood settled between the parties which was payable on 10th of each month.

6. Conversely, learned counsel for the respondent refuted the submissions of the appellant and supporting judgment of the First Appellate Court, urged that after expiry of written agreement, terms and conditions contained in the earlier written rent note will continue between the parties and tenancy does not become oral. He further submits that since under the written rent note rent is to be paid by 10th of each month, rent of December was payable by 10th of the same month and similarly rent of January was payable by 10th of January and since rent was not paid accordingly by the appellant he was a defaulter anti has rightly been ordered to be evicated. In support of his stance, he referred to the cases of Abdul Qadeer v. Haji Muhammad Ismail (2000 MLD 382) and Abdul Aleem Ansari v. Mst. Zubaida Shaheen and another (2000 CLC 1873). He further contends that appellant has not denied ownership of the respondent in his written statement and thus he should not be permitted to turn back and to deny it under the principle of estoppal. He also adds to his submissions that for maintaining and ejectment petition a landlord may not be an owner and appellant having executed rent note in his favour, cannot deny relationship between the parties and that too at the stage of second appeal.

7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Respondent in support of his claim in the ejectment petition appeared as A.W.1 and stated that rent for the months of January and February, 2002 and thereafter for the months of April and May 2002 was outstanding against the appellant. He admitted payment of rent of March 2002, which was remitted by the appellant through money order. A suggestion was put to him that rent for the months of January and February, 2002 was received by his brother Adrian, who was produced by the appellant as R.W.1 and he admitted his signatures over receipts Exhs.R.1 and R.2, but denied receipt of rent amounting to Rs.7,000 for two months from the appellant. He deposed that his signatures were obtained on blank papers in the month of March 2002 and thus blank papers were controverted into receipts by the appellant. This witnesses though is brother of the respondent, but was summoned by the appellant and appeared in the witness-box on his behalf, so his stand will bind him. Both the receipts Exh.R.1 and R.2 were deposed to have been subsequently controverted into receipts by the appellant yet it is manifest therefrom that rent of each month was payable by 10th of concerned month. Adnan Fauzi R. W.1 has denied receipt of Rs.7,000 from the appellant and besides this he was not a person authorized to receive rent on behalf of respondent No. 1, as he was not his attorney. Both the receipts Exh.RA and R.2 though were prepared at one and the same time, as is clear from the statement of R. W .1, but are shown to have been executed on 10-1-2002 and 10-2-2002. This conclusion also lends support from the statement of the appellant himself (R.W.2), as he stated that the amount of Rs.7,000 was paid by him at one time to Adrian, thus it comes out that both the receipts are fake and if at all were executed by R.W.1, were unauthorizedly executed as he was not holding any attorney on behalf of respondent No>I. In this manner appellant did not make payment of rent for the months of January and February, 2002.

8. Contention of learned counsel for the appellant that rent for both these months i.e. January and February could be made by the appellant within a period of 60 clays after the rent became due, is misplaced because tenancy between the parties was written vide rent note dated 5-8-1997 for a period of three years commencing from 1st January, 1998 to 1st January, 2001. Under law when a tenant enters into a rented premises under some written agreement, after lapse of period mentioned therein, terms and conditions settled between the parties through written agreement, continue to govern the terms and conditions of the tenancy, and it by no stretch of imagination becomes oral tenancy. Learned counsel for the respondent has rightly pointed out that rent payable by the appellant could be paid by 10th of the month of which rent is payable, meaning thereby that rent of December was to be paid till 10th of December. My this view gets support from the judgments in the case of Mst.Maqsooda Begum v. Hamid Mahmood Butt (1999 CLC 391), Ismail Adamjee v. Mst. Bilquis Iqbal (1996 CLC 619), Mehfooz Ali v. Mst. Parveen Fatima (1998 MLD 137) and Abdul Aleem Ansari v. Mst. Zubaida Shaheen and another (2000 CLC 1873).

9: Judgments referred by the learned counsel for the appellant have no applicability to the facts and circumstances of the case in hand. Judgment of the Honourable Supreme Court of Pakistan in the case of Muhammad Baqar Qureshi (supra) specifies period for payment of rent in case of oral tenancies and written tenancies, separately and the point under discussion was not involved before the Honourable Supreme Court of Pakistan and thus appellant cannot get any help from this esteemed judgment. The other judgment relied by the learned counsel for the appellant Asad Ejaz Ahmed (supra) also proceeds on altogether other facts, whereas judgments noted in the foregoing paragraph deal with the similar circumstances as involved in the case in hand. I accordingly hold that tenancy being written between the parties, were under rent for the month of January, 2002 was payable by 10th of that month and rent for the month of February, 2002 was payable by 10th of February; 2002, but B having not been paid by the appellant according to those terms, he has become defaulter and liable to ejectment. Findings of the First Appellate Court are in accordance with the evidence and law enunciated by the superior Court and thus calls for no interference by this Court. Ejectment of the appellant has rightly been ordered by the Appellate Court and this appeal having no substance in it, is dismissed with no order as to costs.

10. Since appellant is doing his business in the shop in question for the last almost five years, I allow him two months' time to vacate the same and to hand over possession thereof to respondent No.1 and if appellant fails in this behalf, respondent No.1 will have possession through process of execution.

W. A. M. /K-286/L Appeal dismissed.