The facts giving rise to . This second appeal briefly stated are that the appellant-landlord on 2-1- 1.974 filed a Rent Case No. 25 of 1974 in the Court of the learned Civil Judge, and Rent Controller, Karachi, against the respon--dent-tenant for eviction on the ground of wilful default in payment of rent and bona fide personal need, in respect of a room in House No. 110, Block 4, Drigh Colony, Karachi.
2. The appellant-landlord allegedly let out one of the rooms in his house above-mentioned to the respondent-tenant on a monthly rent of Rs. 35 per month about seven years prior to the filing of the rent application The tenant-respondent carried on his professional practice of Hikmat as he is a practising Hakim in that room, since the room was facing the street. It is contended that since the family members of the appellant landlord and his son Abdul Majeed increased by a passage of time he made an application to police for ejectment of the respondent-tenant, as a result that the respondent-tenant, was annoyed and be stopped payment of rent since September, 1971. ,The result was that the appellant-landlord filed the rent application in the Court of the learned Civil Judge and Rent Controller on the above grounds as stated above.
3. The contentions raised on behalf of the respondent-tenant in the Court of the learned Rent Controller were that neither the appellant-landlord was in bona fide personal need of the premises in question nor the respondent-- tenant wilfully defaulted the payment rent since September, 1971.
On the contrary it was contended that the entire payment was made up to January, 1972 by money order and thereafter on 15-11-1973 in cash of Rs. 1,100 m lieu of all the arrears of rent and that an amount of Its. 245 was paid by cheque along with the reply to a notice .Of an Advocate of the appellant---landlord to him on an earlier occasion and that nothing was due towards rent from respondent-tenant to the landlord-appellant.
4. The learned Rent Controller allowed the rent application on the ground of default in payment of rent only, resulting in ejectment of the respondent-tenant from the premises in question with the direction put the appellant-landlord in possession of the premises within a period of one month of the ejectment order dated 29-7-1974.
5. The respondent-tenant filed the first appeal in the Court of learned Additional District Judge, Karachi, who allowed the appeal of the respon--dent-tenant holding that there was no default in payment of rent and, therefore, he set aside the order of the learned Rent Controller vide his Judgment dated 25-2-1976, with the result that the appellant-landlord has come in this second appeal.
6. I have heard the learned counsel appearing on behalf of the parties, Mr. Hasan Jaffer for the appellant-landlord and Ahmed Yousuf Ali for the respondent-tenant. They conceded that the only contested issue in the present appeal is that of default in payment of rent and that the issue of bona fide personal need is no longer in contest.
7. As regards default in payment of rent, it is contended on behalf of the appellant-landlord that the rent was defaulted with effect from September, 1971 up to date. It has been contended on, behalf of the respondent-tenant that the rent for the month of April, 1971 to October, 1971 was paid by a cheque of Rs. 245 sent with a reply to a notice of an Advocate of the appel--lant-landlord and that up to January, 1972 by money orders which were refused and that for a subsequent period up to date by cash of Rs. 1,100 in presence of two respectable persons of the locality as a result that nothing was due from him to the appellant-landlord and that he is not a defaulter.
What I find that the burden of proof of the alleged payment primarily rested on the respondent- tenant since he has alleged the payment by different modes and the appellant-landlord has denied the same. The appellant---landlord has categorically asserted that the respondent-tenant has defaulted in payment of rent since September, 1971 as he was annoyed on his making an application to the Police for his ejectment. As against it the respondent---tenant so far his first payment of Rs. 245 by cheque is concerned has relied on his own word and a copy of a reply wherein he referred to enclosing of a cheque of Rs. 245, and nothing else. He has alleged that he came to know from his banker that the cheque was not encashed - by the appellant-landlord only in order to see that he was ejected from the premises on the ground of default. The respondent- tenant has failed to produce any other evidence in support of his contention in that respect including the counter-foil of thecheque. However, a tender of rent by cheque is not a legal tender and in the , circumstances of the present case a word of the respondent-tenant alone in that respect, with copy of the letter mentioning the enclosing of thecheque which can easily be managed, does not appear reliable and worthy of credit in support of the contention of the respondent-tenant.
8. So far the sending of money order is concerned there is no postal endorsement on any of the money order coupons to the effect that the money orders were refused by the appellant-landlord.
In fact they do not bear any postal endorsement at all. They simply have postal stamps which can easily be managed. If the contention raised on behalf of the respondent-- tenant in that respect have been genuine there is no reason as to why the concerned postal authorities were not summoned with their record to show that the money order were actually received by the postal authorities and were taken to the appellant-landlord who had refused the same and that the postal record had such a documentary evidence available in it. In absence of any such evidence it would be hard to believe the solitary word of the respondent-tenant to the effect that he actually sent the money orders and tendered the rent but was refused.
9. I would then come to discuss the evidence available on the record so far the last payment of Rs.
1,100 towards arrears of rent up to date is concerned. The respondent-tenant has relied on his own version and that of his two witnesses Muhammad Azim Khan Dentist and Khan Mohammad alias Nawab in whose presence he allegedly made payment to the appellant-landlord in the premises in dispute. It is strange that he made the payment of this amount ~ towards arrears of rent and remained satisfied with the payment in presence of two witnesses and failed to insist on passing on receipt to him for making such payment. According to him he demanded the receipt from the appellant-landlord for the payment of Rs. 1,100 but he told him that it was not necessary. The version of his two witnesses in that respect is different. Muhammad Azim Khan says that the respondent tenant had demanded the receipt from the appellant-landlord who told him that he would execute afterwards. Khan Mohammad alias Nawab has deposed that the respondent- tenant had demanded the receipt from the appellant-landlord but he did not pass on the same on the ground that it was an amount of arrears of rent and that it would be adjusted towards it. None of these versions seem to inspire confidence and no person with an ordinary prudence would be satisfied with any of the answers, assuming they were correct. Ordinarily in such a situation he would have not made payment at all without obtaining proper receipt for it, specially when it was the payment towards arrears of rent. It is contended that the appellant-landlord, since the house was allotted to him. By K. D. A. Under the terms and conditions was not to convert it into non- residential and, therefore, was not inclined to pass on the receipts has also no force for the simple reason that except this allegation no other material has been produced on the record to show that the appellant-landlord was obliged under the K. D. A. Rules not to rent out the room to the respondent-tenant who carries on a practice as a Hakim and that for such reason he was reluctant to pass on the receipt. The version of the respondent tenant and that of his two witnesses Muhammad Azim and Khan Muhammad alias Nawab is inconsistent in other respects as well. The respondent-- tenant has stated that Khan Muhammad was already present on his shop when he went to call Muhammad Azim Khan from his clinic and the amount of Rs. 1,100 was paid by him to the appellant-landlord in their presence Mohammad Azim Khan has stated that after the payment was made he had to leave the shop first whereas all others were still on the shop. Khan Muhammad has deposed that the appellant-landlord Abdul Ghafoor had left the shop first of all then the Dentist and thereafter he left the shop. The evidence of these two witnesses and the respondent-tenant in view of the discrepancies and in absence of the receipt does not seem to be reliable with regard to the payment of Rs. 1,100 as arrears of rent and does not at all inspire confidence. It would, therefore, be clear that even payment of Rs. 1,100 has not been proved by the respondent-tenant. Accordingly, it has not been proved by a cogent evidence on the record that the respon--dent-tenant made the payment towards the alleged default since September, 1971.
The lump sum payment has clearly not been proved, and the monthly payment, admittedly was neither offered nor made. The respondent---tenant is, therefore, a defaulter in payment of rent for the period of nearly more than two years, and, therefore, obviously is a wilful defaulter. The finding of the learned 1st Appellate Court to the contrary is obviously erroneous and is liable to be set aside.
10. The result is, that the finding of the 1st Appellate Court in that respect is set aside and bat the finding of the learned Rent Controller is restored to the effect that the respondent-tenant is wilful defaulter in payment of rent and is therefore liable to be ejected. However, I allow two months' time from the date of this judgment to the respondent-tenant to put the appellant-landlord in possession of the premises. The appeal is allowed accordingly with costs.