' This second appeal filed by appellant tenant is directed against the impugned Judgment dated 23rd July, 1978 of learned Additional District Judge, Karachi, whereby appeal filed against the grant of ejectment by the Rent Controller has been dismissed.
2. Briefly stated the facts are that application under Section 13 of the West Pakistan Urban Rent Restriction Ordinance,. 1959 was filed on 16th October, 1971 in the Court of Rent Controller, Karachi for eviction of the tenant on the grounds of default in the payment of rent, additions and alterations in the demised premises and impairing value and utility thereof and requirement of premises in question for occupation of the landlady herself in order to run maternity home. It is stated in the application that the tenant is in occupation of three shops Nos. 1, 2 and 3 situate on plot No, 1068.
Liaquat Ashraf Colony No, 2, Mahmoodabad, Karachi, at the rate of Rs, 35 per month as rent for each shop. The written statement was filed by the tenant in which tenancy and rate of rent as stated in the application is admitted. Allegation of default is denied and it is stated in the written statement that the landlady on purpose refused to accept rent and even money orders in order to create a ground for ejectment. Other allegations mentioned in the application in support of grounds for ejectment are also denied. In view of the pleadings of the parties the following four issues have been framed :--
(1) Whether the opponent has made additions and alterations as alleged in para. 4 of application and thus has impaired the value and utility of the building ?
(2) Whether the unauthorised construction of latrine and heat and smoke due to furnace cause nuisance to the applicant ?
(3) Whether the applicant requires the premises reasonably and in good faith for her own occupation and bona fide use ?
(4) Whether the opponent has committed default in payment of rent as alleged in the Rent Application ?
3. The Landlady has examined herself Exh. 1 and two other witnesses namely Babu Bhai Exh. 2 and Ghiasuddin Exh.
3. Both these witnesses have supported the assertion of the landlady that the tenant has carried out additions and alterations in the demised premises. On the other hand tenant Muhammad Ibrahim has examined himself and stated before the Rent Controller that he is in possession of three shops at monthly rent of Rs, 35 for each shop. Previously one Mian Dad -was in occupation of the premises in question and was running a bakery. He has denied that he carried out any additions and alterations and has insisted that the premises are in the same condition as he had got them. Tenant has further examined Ghulam Nabi witness to support him. After assessing the evidence, the learned Rent Controller finally granted ejectment on the grounds of additions and alterations made to the demised premises and default. Against this decision the tenant went into appeal which also came to be dismissed as stated above.
4. It has been urged before me by the learned counsel for the appellant that although the findings of the two Courts below are concurrent and against him but evidence produced by the parties on the two issues has been misread. I have gone through the record with the assistance of the counsel appearing for both the parties. So far tie issue with regard to additions and alterations made to the demised premises by the tenant is concerned, the case of the respondent landlady is that the tenant was let three shops in the same building on rent at the rate of Rs, 35 per month.
These shops are in a row adjacent to each other. The tenant has removed the walls dividing the shops and has converted them into one shop and has also removed the doors of the other two shops and has retained one door as main door for the three shops converted into one. It is also allege that the tenant has removed nilon net and has installed cemented blocks, hence the value and utility of the premises in question is impaired. The landlady has examined two witnesses namely Babu Bhai and Ghiasuddin who have supported her. On the other hand the case of the tenant is that he has not made additions and alterations as alleged because these additions and alterations were already there when he was inducted into possession of the premises in dispute.
Previously one Mian Dad was tenant in the premises in question, who was running a bakery. The tenant has further examined one witness Ghulam Nabi who has supported his claim. Ghulam Nabi has admitted in his cross-examination before the Rent Controller that he did not know whether any written agreement of tenancy was executed between the parties and how the respondent came into possession of the disputed premises. He has further admitted that he was asked by the respondent to give evidence in the Court for him and was brought in the Court by the respondent.
The question with regard to the additions and alterations in the demised premises is not disputed by the tenant but his claim is that the additions and alterations were already there when he came into possession. This assertion of the tenant is falsified by the written agreements of tenancy executed between the parties, which have been brought on record. These are three agreements Exh. A-1 for shop No, 1, A-2 for shop No, 2 and A-3 for shop No,
3. These agreements are executed by the tenant on 7th May, 1963. The contents of these agreements reveal that there are three different and distinct shops which adjoin in the same building. The description of each shop is given separately in these agreements. Rent for each shop is mentioned separately. Furthermore in clause 3 of each agreement it is stipulated that the shop in question would be vacated and handed over to the landlord on one month's notice. This was mentioned in respect of each shop separately. This clearly proves that each shop has a separate and distinct identity and is made in such a way that it could be vacated and left possession of, while other shops are retained. Now if the contention of the tenant is correct that additions and alterations as alleged by the landlady were also there in the demised premises, when he was inducted into possession, then the contents of the agreements would have been different and in fact there would have been. Only one agreement because according to the tenant the -separating walls between the shops had already been removed by the previous tenant. While testifying before the Rent Controller tenant has not said a single word about the contents of the agreements mentioned above. He has not disputed execution of these agreements. Both the Courts below have given sound reasons to come to the conclusion that the additions and alterations were made by the tenant after the execution of the agreement and coming into possession of the demised premises by the tenant.
5. The other issue on which the findings of the two Courts below are concurrent and against the appellant is that of default. The case of the landlady is that the tenant has not paid rent from June, 1971 upto filing of ejectment application in October, 1971. She produced counterfoil of a receipt attested by the tenant showing acceptance of payment of rent from March to May, 1971. On the other hand the case of the tenant is that he was always willing and ready to pay the rent but the landlady declined to accept the rent in order to create a ground for ejectment. It is further stated by the tenant that he sent rent through money order which was refused by the landlady and ultimately he deposited rent in the Court of Rent Controller after obtaining his permission. The coupon of this money order Fxh. A-5 on the record shows that on the back of it there is an endorsement made on behalf of the tenant in which it is stated that rent for four months i. e.
November, December, January and February was being tendered for acceptance. Now so far the receipt Exh. A-4 is concerned it indicates that rent was paid by the tenant from March to May, 1971 for three months together and the money order coupon as stated above also shows that attempt was made to tender the rent for four months together. Agreement of tenancy Exhs. A-1, A-2 and A-3 clearly stipulate that rent was payable in respect of each shop separately for each month in advance. There is no time limit in these agreements for the duration of tenancy but it is stated that the shops are to be vacated on one month's notice. Admittedly according to the terms of the agreements the rent is payable in advance and default is committed when rent was tendered not in advance but in lumpsum for a few months together. If the landlady has once accepted the rent for a few-months together, it means that she has condoned the default but it does not mean that the terms and conditions contained in the agreements are varied. In fact the tenant in 'presence of written agreement could not lead evidence showing variation in terms and conditions of the agreement. Reliance is placed on the case of Syed Riaz Ali v. Shabbir Ahmed Khan (I). Secondly the assertion of the tenant that after the refusal of the landlady to accept the rent he sought permission of the Rent Controller and started depositing rent in the Court is also not helpful to him for the reason that this application for permission to deposit rent in the Court was filed on 20th October, 1971 after the application for ejectment was filed by the landlady on 10th October, 1971. In fact the perusal of the record shows that there is no explanation or evidence as to why the rent was not paid by the tenant for the period June to September, 1971. In these circumstances I find that there is no mis-reading of the evidence and the findings of the two Courts below are very much consistent c with evidence on the record. During the pendency of the second appeal the learned counsel for the appellant filed application in this Court under 0. XLI, R. 27, C. P. C. For production of additional evidence. He has filed five documents out of which three are money orders one is rent receipt and the other is certificate of posted authorities. There is affidavit in support of application for additional evidence sworn by the appellant. He has stated in the affidavit that he has sent rent for the months of March and April, 1971 by money order No, 4769 dated 24th May, 1971 which was refused by the landlady. This money order clearly shows that rent was not paid in advance as stipulated in the agreement but rent for two months i. e. March and April was sent in the month of May. Second money order shows that rent for March, April and May, 1971 was sent on 29th June, 1971, which covers the previous money orders stated above and here also default is already there. The third document is photostat copy of receipt showing rent paid for March to May, 1971 and accepted by the landlady. There is no dispute about this receipt as the landlady herself has produced this receipt as Exh. A-4 and has been discussed above. Even in the tender of this rent there is default which can be said to have been condoned by the landlady as a matter of indulgence and this does not give right to the tenant to commit default in violation of the terms and conditions of the agreement. The last document is photostat copy of the certificate issued by the postal Authorities on 23rd September, 1978. In this certificate reply is sent by the Postal Authorities which is to the effect that the record relating to money order sent in the year 1971 is not available with them as it has been weeded out after the expiry of time prescribed for preservation. It is further stated that money orders referred in the
(1) 1971 SCMR 598 ' application related to year 1971 might have been returned for one of the following reasons :-
(1) Due to incomplete address of the payee.
(2) Refused to accept payment by the payee.
(3) Unclaimed.
6. This certificate is of no assistance to the appellant for the reason that money orders sent and returned indicate that rent-was paid in lump-sum, which proves defaults. As has been rightly held by the two Courts below that there is no evidence on the record to show that the rent was paid by the tenant from June to September, 1971, the landlady is entitled to receive rent from the tenant for each month in advance as per terms of the agreement. If the rent is paid in lumpsum for a few months, the default is committed and the landlady is entitled to refuse such' money orders.
7. There is one more point mentioned in the affidavit in support of application for additional evidence filed in this Court. A new plea has been taken that landlady gave assurance that she would accept the rent in lumpsum for a few months. Such plea was not taken in the original proceedings before the Rent Controller nor before the Appellate Court. Such plea cannot be allowed. Application for additional evidence is rejected.
8. For the reasons and facts mentioned above I have come to the conclusion that there is no merit in this appeal which is hereby dismissed with no order as to costs.