1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is against the order dated 16th October, 1980 of the Hand Rent Controller, Karachi in Rent Case No, 305 of 1979, allowing the application of the respondent for ejectment of the appellant and directing the appellant to deliver vacant possession of the premises to the respondent within 119 days from the date of order.
2. ' The facts of the case are as under :- ' The respondent claiming to be owner/landlady of \ House No, 75011 situated in Sharifabad behind Al-Azam Square at Karachi filed an applica. Tion under section 13 (2) (1) of the Sind Urban Rent Restriction Ordinance, 1959 in the Court of the IInd Rent Controller, Karachi stating that the appellant was tenant of the aforesaid premises at Rs, 250 per month pay able in advance every month. It was her case that the appellant had failed to pay or tender rent with effect from 1st January, 1977 to 31st January, 1979 amounting to Rs, -6,250 and she prayed that he may be ejected.
3. The application was presented on 9th January, 1979. The appel last in the written statement filed on 15th March, 1979 admitted the tenancy but stated that the monthly rent is not Rs, 250 but Rs, 300. He denied that he had defaulted in payment of rent in para. 2 of the written statement, took specific plea that the respondent had not been issuing rent receipts to avoid payment of taxes and she was taking advantage of "her own illegality". It was further the plea of the appellant that the respondent had been pressing him hard to enhance the monthly rent from Rs, 300 to Rs, 500 since July/ August, 1978 to which he had not agreed and he had been paying rent in advance for every month upto November, 1978. He had tendered rent for December, 1978 in the beginning of the month as usual at Rs, 300 but the respondent refused to accept the same. He therefore sent Rs, 300 by money order on 3rd December, 1978, but the respondent returned the money order with the endorsement on the coupon that the rent was Rs, 500 and not Rs, 300. He therefore sent a legal notice dated 6th January, 1979 by registered post acknowledgment due and thereafter be deposited the rent in Court in Miscellaneous Rent Case No, 310 of 1979. In the application for depositing rent which is dated 11th January, 1979 and was obviously filed after the application for ejectment, he had stated that he had been tenant in respect of the premises for about 7 years and the present agreed monthly rent was Rs, 300. He had further repeated the plea which he had taken in the written statement that the landlady in order to evade payment of taxes had never issued receipts for the rent received by her from time to time in spite of demands by him.
4. ' The learned Rent Controller accepted on record the affidavit in evidence of the respondent giving every opportunity to the appellant to cross-examine her and repeated the same procedure in taking the affidavit in evidence of the appellant and permitting the respondent to cross. Examine him.
5. ' After due enquiry as aforesaid the learned Controller gave a finding on the only point of default in favour of the respondent and directed the appellant to hand over vacant possession to the respondent within a period of 119 days from the date of his order.
6. ' I have heard arguments of the learned counsel for the parties and perused the record of the case.
7. There is no legal point involved in the case and no such point has been argued by the learned counsel. The only matter to be determined is whether the finding of the Controller with regard to the appellant being' defaulter was correct in view of the evidence on record. It is apparent that the appellant failed to prove payment of rent during the period of alleged default. In his written state- ment he had set up the plea that no receipts were being given by the respondent and he repeated the same in his application for depositing rent,namely, Miscellaneous Application No, 310 of 1979. It was only after the respondent filed her affidavit of evidence and her production of receipt 'book and counterfoil showing the payment of rent at the rate of Rs, 250 on 30th November, 1976 for the month of December, 1976 that the appellant suddenly changed his ground and admitted that there had been some receipts issued to him. He then conveniently changed his plea to show that all the counterfoils for all the rent receipts given to him had not been put forward, The respondent is a widow who stated in her affidavit that she is not literate but can only sign her name in Urdu. The appellant admitted in his cross. Examination that the counterfoil of the receipt shown to him had in fact been filled up and written by him and the landlady had only signed the same. Keeping the aforesaid admission of the appellant in mind, it is obvious that the story that on the money order coupon the respondent had refused to accept Rs, 300 stating that the rent was Rs, 500 is altogether an afterthought and a fabricated piece of evidence. He conveniently forgot his own admission that the landlady could not write and therefore he used to write receipts for her. The learned Controller has rightly observed that money order coupon is for use of sender of money and the postman under the rules has not to get endorsement of refusal on the coupon. It was also rightly observed that if the appellant wanted to prove such unusual endorsement he should have examined the postman as a witness. The last rent paid according to the receipt book was at the rate of Rs, 250 p. m. And it is obvious that the further contention that the rent was lastly fixed at Rs, 300 and that the landlady was pressing hard for enhancement of the rent to Rs, 500 would also appear to be an afterthought. It is apparent from the statement of account filed by Mr. Aminuddin Ahmad on behalf of the appellant before the Rent Controller that Rs, 250 had been shown as the rate of rent on 15th April, 1979. It was only afterwards that there was the request by the aforesaid learned counsel to the Court that the rate of rent should be considered as Rs, 300 because the receipts obtained by his client from the Nazir of the Court about deposits showed that he had been depositing Rs, 300 per month. This in itself is sufficient to prove that the raising of the rent of Rs, 300 per month was on the part of the appellant just to eliminate the effect of the receipts which had been produced by the landlady to show that rent was being received by her at Rs, 250 per month.
8. With regard to the assertion on part of the appellant about demand for further enhancement in the rent of Rs, 300 to Rs, 500 in the written statement the plea had been taken that the demand had been made since July and August, 1978, whereas in the affidavit in evidence the appellant had changed his ground and stated that since around October, 1978 such demand had been made.
9. Since changing statement of facts and contentions at different stages cannot be accepted as proof of the fact that the appellant had not defaulted in the payment of rent during the period as alleged by the respondent. It was for him definitely to offer proof even if receipts had not been given that he had paid the amount of rent to the landlady which obviously he failed to prove. I, therefore, see no reason to disagree with the decision given by the learned Rent Controller in the impugned order and I accordingly dismiss the appeal, but with no order as to costs. The appellant is hereby directed to hand over vacant possession of the premises 'to the respondent within two months of' the date of this judgment.