REHMATULLAH vs Mrs. ALIA And Other

ORDER

ALI HUSSAIN QAZILBASH J.-- Rehmatullah petitioner seeks leave to appeal against the judgment of a learned Single Judge of the High Court of Sind at Karachi,, dated 6-5-1985, whereby the appeal of the respondents was accepted and the petitioner was allowed four months for handing over the vacant possession of the disputed Flat to the respondents.

2. The dispute relates to Flat No. 18, Block No.4, Raja Mansion, Karachi. It is owned by the respondents and the petitioner is occupying it as a tenant on the payment of a rent of Rs.20.09 per month. Since the petitioner has defaulted in the payment of rent for the period from 1-6-1969 to 31- 10-1969, an application for his ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance was brought before the Rent Controller No.1 at Karachi. This application was resisted by the petitioner and his stand was that according to the practice followed by the parties, the respondents used to collect the rent of several months in lump sum; that the rent of the period under dispute was intentionally not collected by the respondents in order to create a ground for the default in the payment of rent and that he did not commit any default. The following three issues as per pleadings of the parties were framed:

(1) Whether the applicant used to collect rent in lump sum, collectively of two or three months together, from the opponent, and established a practice in contravention of the terms and condition of tenancy agreement?

(2) Whether the opponent committed default?

(3) What should the order be.

3. After recording the evidence, the Rent Controller accepted the stand taken by the petitioner and dismissed the ejectment application vide his order dated 7-2-1982. Dissatisfied with the above order, the respondents filed an appeal in the High Court where they succeeded in getting the order of the Rent Controller reversed and secured the ejectment of the petitioner.

4. We have heard the petitioner in person and gone through the judgments of the Courts below.

The learned Judge of the High Court in his Chambers after analysing the evidence of the parties has observed: "------.Dispute relates to payment of rent from 1-6-1969 to 31-10-1969. During this period according to the respondent (now petitioner) the rent from 1-6-1967 to 31-10-1967 was paid on 21-5-1969 and rent from 1-10-1967 to 31-4-1968 was paid on 19-11-1967. From these two receipts it is clear that the rent was paid in advance. The third receipt is dated 31-10-1968 under which rent from 1-5-1968 to 31-10-1968 was paid by the respondent. Therefore, under this receipt the rent from 1-5-1968 to 30- 9-1968 referred to the arrears together with the current rent for the month of September and advance rent for the month of October 1968. The learned Controller has taken note of two cheques which were issued by the respondent on 25-9-1968 and 15-1-1969. These payments relate to the advance rent paid by the respondent. Therefore on the basis of evidence it is l established that except on one occasion the rent was paid in advance."

The petitioner has not been able to make out any case for us to differ with the above. The bulk of the evidence available on the record shows that the rent in lump sum was to be paid towards the advance rent excepting one occasion. The petitioner has not disputed that he has not paid the rent for the period 1-6-1969 to 31-10-1969. We thus find no merit in this petition and dismiss the same.