' The appellants in the three appeals cited above are tenants of the respondent against whom ejectment applications had been filed by the respondent in the Court of 10th Senior Civil Judge and Rent Controller, Karachi who by his orders dated 12th October, 1981 decided the issue with regard to the appellants Muhammad Ishaque and Atta Hussain having committed default in the payment of rent and directed them to vacate the premises in dispute within two months of the date of the order. In the ejectment application against the appellant Abdul Sattar, the learned Controller by his order of the same date allowed application for striking off his defence and directed the appellant Abdul Sattar to vacate the premises also within two months of the date of the order. Since the three appeals are by tenants of the same landlord and in respect of shops in the same building and similar questions of law and fact are involved they are being dealt with in this judgment.
' The facts of the cases briefly stated are as under :
1. The respondent is the owner/landlord of the building on Plot No, 198-C, P.E.C.H.S., Karachi and the three appellants are his tenants in respect of the one shdp each in the aforesaid building at monthly rent of Rs, 158 each. On 30th January, 1978 the respondent filed applications separately for eviction of the three appellants under sectiorf 13 of the Sind Urban Rent Restriction Ordinance, 1959 on the ground that they wore habitual defaulters and had commited default in the payment of rent, in the case of Abdul Sattar from 5th May, 1977 to 4th January, 1978 and in cases of Atta Hussain and Muhammad Ishaque, tenants with effect from 15th May, 1977 to 14th January, 1978.
2. Written statements were filed on 2nd May, 1978 by Mr. Shaikh Abdul Majeed, Advocate on behalf of all the three tenants. In the written statements the tenancy and the rate of rent were admitted and in para. 2 of the written statements which were identical, it was denied that there had been default in the payment of monthly rent and the plea was taken that the tenants concerned had repeatedly tendered/offered rent to the landlord/ respondent who had avoided acceptance of the same sometimes on the plea of being in hurry and sometimes on the plea of holding talks with regard to the tenancy. It was further stated in para. 2 of the written statements of the tenants that, "when the tenants became confirmed of the ulterior motives of the landlord because of his identical tactics adopted by him with his other tenants", the rent had been remitted by Money Order which was refused by the landlord. In the additional pleas which were common in all the written statements, it was alleged that the respondent/landlord was a greedy man who had developed cupidity and wanted illegally and unlawfully to evict the tenants and let out the shops to new tenants on higher rent and pugree and further that before filing of the ejectment applications he had adopted extraneous methods to strangulate and pressurise" the tenants.
3. In the proceedings before the learned Controller the respondent/ landlord gave evidence in respect of ',is applications. At this stage it is observed that a perusal of the record of proceedings in the three applications against the three appellants indicates that the evidence of the landlord/ respondent was recorded in the case against tenant Atta Hussain, appellant was he was cross- examined by Mr. Shaikh Abdul Majeed, Advocate who has already stated was also the Advocate of the other two appellants and the deposition including the cross-examination, of the respondent/landlord was verbatim brought on the record in all the three proceedings.
4. I have heard the arguments of Mr. G. M. Qureshi, the learned counsel for the appellants and Mr. Khalid Anwar, the learned counsel for the respondent. It is contended by Mr. G. M. Qureshi, the learned counsel for the appellants that at least appellants Atta Hussain and Muhammad Ishaque did not get proper opportunity of being heard not having been afforded the opportunity of even cross-examining the respondent. He has rehLu upon the decision of the Lahore High Court in Sheikh Abdul Hamid v. Muhammad Siddique wherein it was inter alia observed that according to subsection of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 the respondent in each case was entitled to "a reasonable opportunity" to defend the ejectment application filed against him. It may be stated at the very outset that in the instant three appeals the appellants were given full opportunity of defending the ejectment applications against them in that there is evidence given by them each separately which has been fully recorded. With regard to the evidence of the respondent being brought on the record, it may here be stated that as it is apparent from the fact that the deposition of respondent Akhtar Hamid Ghori mentions the opponent Atta Hussain as his tenant of disputed shop and there is no doubt about the fact that the aforesaid deposition was recorded initially in the case of application of the respondent against Atta Hussain, appellant and, therefore, the contention raised does not at all arises in his case. With regard to the case of Muhammad Ishaque, it is true that the deposition of the respondent was brought on record but at the same time it is apparent that the case with regard to Atta Hussain and Muhammad Ishaque is the same even with regard to the alleged default in the payment of rent and apparently the same learned Advocate representing the three tenants whose presence is, shown by his having the cross-examined the respondent did not raise any objection to the bringing on record of the deposition of the respondent Akhtar H. Ghori. For the first time the plea that appellant Muhammad Ishaque did not get proper and fair opportunity of defending the application due to the fact that the deposition of the respondent had been already recorded in the case of Atta Hussain has been raised in this Court. In any case lookin to the fact that Muhammad Ishaque, appellant had full opportunity of meeting the case as in the application by his filing a written statement and the further fact that there was obvious admission in the written statement about the default would show that no prejudice at all was caused by him by bringing on record the aforesaid deposition of the respondent. Appellant Muhammad Ishaque filed affidavit in evidence during the proceedings and was cross-examined on behalf of the landlord. It is apparent that the1 plea raised in the affidavit-in-evidence by Muhammad Ishaque that the Money Order sent to the landlord was refused is supported by photostat copy of the Money Order Form with the endorsement which is Annexure `A' to the affidavit at page 19 of the record. It may here be observed that whereas it was the case of the respondent in the application for ejectment that Muhammad Ishaque, appellant had failed to pay monthly rent due from 15th May, 1977 to 14th January, 1978 and the sum of Rs, 1,322, therefore, was due from him in the reply in para. 2 of the written statement it was merely stated that Muhammad Ishaque repeatedly tendered/offered rent to the applicant (respondent/landlord) but the latter had avoided acceptance sometimes on the plea of being in hurry and sometimes on the plea of holding talks in regard to the tenancy. There was no allegation of refusal on the part of the landlord to accept the rent. It was further the case of Muhammad Ishaque that when he was convinced of the ulterior motives of the landlord he remitted rent by Money Order which was refused by him. A reference to the endorsement on the Money Order Form shows that Rs, 948 were being sent as rent for the period 16th May, 1977 to 15th November, 1977 and there was nothing to show that the tender of rent for the aforesaid period or the refusal of the landlord to accept it.
5. The same is the factual position with regard to the case of the appellant Atta Hussain who in fact had filed the same written statement as Muhammad Ishaque. The written statement is verbatim like one filed by Muhammad Ishaque but he further stated in his evidence that he had not sent Money Order in the month of May, 1977 but had gone to the house of the applicant (respondent/landlord) where the sister of the respondent met him and had declined to take the rent for the month. The evidence even if it is taken at its face value does not show that there was proper tender of rent to the respondent/landlord himself. The appellant further stated that it was correct to say that the Money Order for six months was sent in December, 1977 to the landlord. In the endorsement of message to Money Order there was no allegation that the rent tendered had been refused and the only statement was that the tenant had gone 2/3 times to the house of the landlord but he was not there and, therefore, he could not make the payment. The learned Rent Controller has discussed in detail the evidence on record with regard to default in the payment of rent and he rightly arrived at the finding that there had been wilful default in the payment of rent for the period shown.
6. It may here be observed that it is well-settled position of law than in cases of alleged default in the payment of rent if the landlord has mad the assertion in the application which is supported by his evidence oath the burden shifts to the tenant to prove that he had made payment. For the reasons given by the learned Controller and also for reasons discussed above it is apparent that the tenants/appellants had failed to discharge the burden of proof that they had tendered or paid the rent to the landlord at the proper time. With regard to the case of appellant Abdul Sattar Parekh the position is even worse for the simple reason that he had failed to comply with the tentative order passed by the learned Controller on 27th August, 1979 under which arrears of rent amounting to Rs, 2,212 from May, 1977 to 30th June, 1978 were to be deposited and the current monthly rent of Rs, 158 had to be deposited from the month of July before 15 of succeeding month. The Nazir's report shows that the deposits made in Misc. Rent Case No, 24 of 1978 as well as in the case before the Controller were not within time and the monthly rent was also not deposited in time. The learned Controller, therefore, in his detailed order dated 12th October, 1981 observed that by order dated 27th Auguit, 1978 the tenant had been directed to deposit rent from August, 1978 before 15th of September, 1978 but the report of the Nazir revealed that he had not deposited any rent in the case. He also observed that the report of the Nazir in Misc. Rent Case No, 24 of 1978 showed that the first deposit dated 4th January, 1978 was for the amount of Rs, 948 towards the rent for the months of April, 1977 to September, 1977 (six months). Again on 14th September, 1978 an amount of Rs, 1,170 was deposited which was rent for the months of October, November, December, 1978 and January, February, March and April, 1978, and after that third deposit was made on 14th October, 1978 of the amount of Rs, 632 which was for four months. The learned Controller, therefore, observed as under :- "What to say of the non-deposit of the rent in the present case, but the opponent has not deposited the rent in time, in the Misc. Rent Case."
' In all fairness to Mr. G. M. Qureshi, the learned counsel for the appellants it is observed that he did not press the appeal in the case of appellant Abdul Sattar.
' In view of the circumstances stated above the is no weight in any of the three appeals which are hereby dismissed however, with no order as to costs. The appellants are directed to hand over vacant possession of the demised shops to the landlord within a period of two months from the date of this order. PLD 1981 Lab. 42