Mughal MUHAMMAD ALI ARFI Versus Mst. ZAKIA BEGUM

1. This appeal is directed against the order of IXth Senior Civil Judge and Assistant Rent Controller, Karachi dated 30‑10‑1983 whereby he ordered eviction of the appellant on the ground of default in payment of rent.

2. I have heard the learned counsel for the parties and also perused the record and proceedings of the case.

3. The facts of the case in brief are, that the appellant is admittedly tenant of the respondent in respect of shop No.1 in House No.577/77, Federal 'B' Area Karachi on the monthly rent of Rs.120. He failed to pay the rent for the months of April, May, June and July, 1980 and, therefore the respondent filed application for the eviction. The respondent further claims, that he requires the premises for his personal use. The appellant contested the application and raised the plea that he had paid the rent for the months of April and May, 1980 but as the respondent did not issue the receipt, therefore, he sent the rent for the months of June and July, 1980 by money order and subsequently deposited the rent in Court of Rent Controller. He also denied, that the respondent required the premises for his personal and bona fide use. On the pleadings of the parties the learned Rent Controller framed the following issues:‑

4. "(1) Whether the opponent has committed wilful default?

(2) Whether disputed premises are needed by the applicant for his personal bona fide use?

(3) What should the order be?

5. He decided issue No.2 against the respondent and no appeal has been filed by the respondent nor is that issue pressed in this Court. Giving his finding in affirmative on issue No.1, the learned Rent Controller ordered eviction of the appellant.

6. The admitted facts appear to be, that the appellant is tenant of the demised premises since 1973 but he is not alleged to have committed any default in payment of rent prior to April, 1980. Admittedly there is no written agreement of tenancy. As such the tenant would be deemed to be defaulter, if he fails to pay the rent within 60 days from the date it becomes due. The rent for the month of April, 1980 became due on 1st May, 1980 and was payable before 1st July, 198(1. Similarly the rent for the months of May, June, July were payable before 1st August, 1st September and 1st October respectively. However, this eviction application on has been filed on 20th July, 1980. Thus, at the time of filing of the rent application, the respondent had cause of action, if any, for the alleged non -payment of rent for the month of April, 1980 only.

7. On the question of default, there is oral evidence of the respondent, that he had not received the rent, as against the evidence of appellant and his son, who states to have paid the rent to the respondent but he did not issue any receipt. In p his cross‑examination, respondent had admitted that he does not maintain the accounts of the rent. No doubt three receipts have been produced by the appellant for the payment of rent for the months of January to March, 1980, but it is stated by the appellant that even these receipts were issued by the respondent after some time. There admittedly existed relationship of landlord and tenant between the parties since seven years before the alleged default and there is no evidence to show that the relations between them were estranged. As such it does not look improbable, that the appellant could have paid the rent without insisting on immediate issue of the receipt. However, there is only word of the respondent as against the word of the appellant and his son with regard to the default in payment of rent. Reliance is placed on 1986 C L C 1551 where in similar circumstances a learned Single Judge of this Court had held. "The Rent 1 Controller, in view of oral evidence against oral evidence, should have placed evidence of both the parties in even scales and cancelled the benefits of uncertainty to tenant rather than to the landlord."

8. It is contended by the learned counsel for the respondent; that they appellant had deposited rent with the Court of Rent Controller in January, 1983 but conceded, that any default, that may have been committed by the tenant after E the institution of the present application, could not be considered as evidence while deciding this application but may give fresh cause of action, if any, to the respondent. Considering the past conduct of the appellant, which shows, that he has been regular in payment of the rent and his subsequent conduct, in tendering the rent by money order for the months June, July, 1980 and by depositing rent regularly before Rent Controller as per order of Rent Controller, it is difficult to disbelieve the statement of the appellant and his son Mughal Muhammad Aslam, that they had paid the rent of the month of April to the respondent but he had not issued the receipt. It is also admitted, that before the institution of the rent application respondent had not given any notice for the payment of rent to the appellant. Under the law, it is not necessary for the landlord to give such notice but that is indicative of conduct. It appears, that respondent had jumped upon the first available opportunity, whether actual or created, to file ejectment application. Keeping m view all these facts and circumstances, in my opinion, it is not proved by the respondent (Landlord) that the appellant had made any default in payment of rent for the month of April, 1980. As such the appeal is allowed' and the impugned order is set aside, The appeal was allowed by short order dated 31‑3‑1987. The above are the reasons in support of the said order.

9. M.Y.H./M‑486/K Appeal allowed.