RIZWAN AHMAD Versus MAQBOOLUR REHMAN

1. This first Rent Appeal is directed against the order dated 27-7-1986 passed by the lI1rd Senior Civil Judge/Rent Controller, Karachi West, allowing the eviction application and directing the appellant to hand over the vacant possession of the premises to the respondent within sixty days from the date of the eviction order.

2. The facts leading to the filing of the above appeal are that the respondent is the owner of single storeyed building constructed on plot No. 1, Row No. 13, Sub-block-F, Block No. 111, Nazimabad, Karachi and the appellant is tenant in respect of a portion thereof consisting of three bedrooms with attachment on the monthly rental of Rs.200. The respondent filed eviction application bearing No. R.C. No. 5280 of 1983 (New R.C. No. 780/85) against the appellant on the ground of default. The appellant resisted the eviction application. The appellant pleaded in his written statement that there existed no relationship of landlord and tenant between the parties. The learned Controller on the basis of the evidence (oral and documentary) and taking into consideration the arguments advanced by the learned counsel for the parties decided both the issues/points in the affirmative and allowed the eviction application on the ground of default vide order dated 27-7-1986.

3. The appellant being aggrieved against the order dated 27-7-1986 of the IIIrd Senior Civil Judge/Rent Controller, Karachi, has filed the present appeal on the grounds mentioned in the memo. of appeal.

4. Mr. Syed Ishrat Hussain, the learned counsel for the appellant contended that there existed no relationship of landlord and tenant between the parties.

5. The learned counsel further contended that the findings on both the issues are contrary to evidence on the record.

6. On the other hand, Mr. Munirur Rehman the learned counsel for the respondent submitted that there existed relationship of landlord and tenant between the parties. His submission is that the findings are in accord with the evidence on record.

7. I have heard the learned counsel for the parties and perused the record of the case.

8. The respondent averred in his eviction application that the appellant is a tenant in respect of the portion of single storeyed building on plot No. 1, Row No. 13/F/III, Nazimabad, Karachi vide agreement dated 1-5-1973. The respondent produced mutation letter dated 20-9-1971. A perusal thereof would show that the property was mutated in his name. The respondent also produced a tenancy agreement. It is not in dispute that the original rent was fixed at Rs.160 per month and the same was enhanced to Rs.200 per month. The appellant admitted in his evidence, about the execution of the agreement. The learned counsel for the appellant's submission is that the appellant inducted by the mother of the respondent in the year 1967. This submission is devoid of force. Firstly the appellant admitted in his evidence that he executed agreement on 1-5-1973. Secondly the appellant had paid/tendered rent upto June, 1982 to the respondent. It seems that the finding on this issue is in accord with the evidence on record:

9. The learned counsel for the appellant is unable to point out any infirmity and/or misreading of evidence. I am inclined to agree with the decision of the learned Controller that there existed relationship of landlord and tenant between the parties.

10. Reverting to the second contention of the learned counsel for the appellant that the appellant had not committed default in payment of rent for the period in dispute, Mr. Syed Ishrat Hussain contended that the appellant had remitted the rent through money order. This contention is devoid of force. I have perused copy of money order coupon bearing No. 2500, dated 25-8-1982. The receipt of money order was denied by the respondent. The appellant has not cared to examine the postman of the beat/area to show that the money order was received by the respondent. The burden was on appellant which was not discharged by him. It is not in dispute that the respondent addressed a letter dated 13-11-1983 to the appellant wherein it was stated that the rent was not 1 received by the respondent. Thereafter, the case was filed. It is also not in dispute that the parties exchanged correspondence prior to 13-11-1983.

11. The learned counsel for the appellant contended that the appellant had filed Miscellaneous Rent Case on 23-11-1983 and deposited rent on 28-11-1983. It is not in dispute that the appellant started depositing rent in Miscellaneous Rent Case. This deposit was not in the name of the respondent but the appellant was depositing in the name of a wrong person. This deposit firstly in the name of a 1 wrong person is not of any help to the appellant. Secondly the deposit was after the expiry of the prescribed period. This also does not help the tenant as the same, was deposited after the prescribed period of sixty days,-

12. Mr. Ishrat Hussain contended that the arrears of the rent can be adjusted against the security deposit lying with the respondent. This contention is also devoid of force (See P L D 1988 S C 190).

13. Lastly Mr. Ishrat Hussain contended that the appellant had moved an application for additional evidence before the Controller and the Rent Controller illegally rejected the application. This contention is devoid of force on more than one ground. Firstly the respondent filed his affidavit-in-evidence on 3-3-1984 and he was cross-examined on 4-2-1985. Secondly the appellant filed his affidavit-in -evidence on 7-5-1985 and he was cross-examined on 17-3-1986. Application for summoning of additional evidence was filed on 1-4-1986 and the same was rejected on 22-4-1986. It is an admitted position that the affidavit-in-evidence was to be filed immediately after cross-examination of the applicant. It is not in dispute that the appellant was cross-examined on 17-3-1986 and the application was filed thereafter. I think in the circumstances of the case, the learned Controller rightly rejected the application.

14. For the aforesaid reasons, the appeal is dismissed. The eviction order is affirmed. However, I direct the appellant to hand over vacant possession of the premises in dispute within four months from the date of the judgment provided the appellant continues to deposit rent in accordance with .the tentative rent order. In the circumstances of the case the parties shall bear their own costs.

15. M.Y.H./S-440/K

16. Appeal dismissed.