' This is an appeal against the judgment of the learned Rent Controller dated 29th November, 1979 whereby he directed the appellant to put the landlord in vacant possession of the premises within 30 days of the order.
2. The facts which give rise to the instant appeal are that the two appellants Muhammad Salim and Muhammad Younus are respectively the son and father and both are the tenants of the outhouse in the Iqbal Manzil JM. 3-669-670, Clayton Road, Karachi. The landlord of the said Iqbal Manzil was one Muhammad Abdullab Mushariff Abedeen now deceased and his legal Representatives have been joined and Jamal Mushariff is the eldest son. The respondent filed a rent application in the month of February, 1976 alleging therein that the two appellants committed default in payment of monthly rent with effect from 1st June, 1975 to 31st January, 1976. While in the written statement the appellants claimed that they have paid the rents upto date and the rents were being accepted in lump sum by the respondent's father. In the month of April, 1975 the father of the respondents visited the outhouse namely the disputed premises and observed that the walls of water tank and water pump needed urgent repairs. He verbally gave permission to the appellants to repair the same and the amount be adjusted from the rents. Therefore, the appellants in good faith carried out the repairs work and incurred the expenditure of Rs, 950. This expenditure of Rs, 950 were adjusted towards the rents payable.
3. The learned counsel Mr. Muhammad Ashraf Kazi argued on behalf of the appellants while Mr. Sami Ahmed Tirmizy argued pn behalf of the respondents. The learned Rent Controller framed the following four issues :-
(1) Whether the application is maintainable ?
(2) Whether the opponent No, 1 is entitled to adjustments of Rs, 950 towards the rent for the period w. e. f. 1st June, 1975 if so what is the effect ?
(3) Whether the opponent No, 1 has committed, any default in the payment of rent ?
(4) What should the order be ?
' The learned Rent Controller gave the finding on Issue No, 3 in the affirmative while the Issue No, 1 was not pressed. The Issue No, 2 was not proved. Therefore, the Issue No, 4 was answered by the order directing the tenants to vacate the premises and deliver the peaceful possession to the landlords.
4. Mr. Asbraf Kazi read out the deposition of Jamal Musharrif at Exh. 5 and that of appellant No, 2 Muhammad Younus. He has referred to the receipts of the payment of rents from time to time. The receipts are at Exhs. 7 to 11. The receipts at Exh. 7 is dated 16th July, 1973 signed and issued by the landlord F. F. Musharriff and it covers the rents from January, 1973 to September, 1973 amounting to Rs, 540 at the rate of Rs, 60 per month. The receipt is issued on 16th July, 1973 which shows that the rents were accepted upto July, 1973 and for August and September, advance rents were accepted in the month of July, 1973. This is quite clear that the practice and the mode of payment was that rents were accepted in lump sum and sometime advance rents were also accepted in lump sum.
This is with regard to Exh.
7. Then one year later on 16th July, 1974 the receipt is signed by the landlord which covers the rents from October, 1973 to May, 1974 totalling an amount of Rs, 480. This receipt is at Exh. 9 and it covers the rents from October, 1973 to May, 1974 although the receipt is dated 16th July, 1974. Similarly Exh.
8 which is issued on 1st April, 1975 covers the rents from June, 1974 to May, 1975 amounting to Rs, 720 for the entire year.
5. These are the receipts with regard to the payment of rents upto May, 1975. It is quite clear that the rents were accepted in lump sum and sometime in advance and the practice and the mode of acceptance of the rents was in the nature of lump sum. There is another receipt dated 10th June, 1975 for Rs, 600 being repairing charges of water tank etc. And receipt dated 16th June,1975 amounting to Rs, 350 for motor winding and repairing pipe fitting etc. The amount of Rs, 950 is carried by the two receipts which are produced on record. The allegation of the legal representatives is that the permission for repairs and the adjustment of the amount spent on repairs towards the rent was not given by the landlord the respondent No, 1 who has since expired.
The evidence led by the appellants shows that such a permission was granted and the repairs were carried out with consent. There is word against word and since the father of the legal representatives is no more in this world, he cannot be examined on this point. Since the appellants have claimed that the permission was granted which is proved there is no reason to doubt their version and the circumstances show that they are to be believed and that the amount spent on the repairs should have been adjusted towards the rents. The learned counsel Mr. Ashraf Kazi has argued and has led me through the evidence of both the parties and has referred to the relevant receipts on record and has pointed out that in fact no default as such has occurred much less the intentional or wilful default has occasioned on the part of the appellants. On the other hand Mr. Sami Ahmad Tirmizy learned counsel for the respondents has stressed that the landlords did not permit to carry out the repairs and the amount so adjusted towards the repairs should not be adjusted and as such default has occurred. In my view considering the circumstances and the nature o the facts brought on record, it is to be believed reasonably that the landlord who had expired during the pendency of the case, did accord the permission to carry out repairs and adjust the amounts towards the rents due from the appellants. The evidence recorded by the lower Court at Exh. 6 appellant Muhammad Salim has deposed that he always paid the rents in advance and the advance payment was not objected to by the landlord. The receipts as referred to in the proceeding paragraphs do indicate the advance payment of the rents. The main question, therefore, is that the landlord did not object to this mode of payment and the receipts so brought on record indicate that the payments were made upto May, 1975. When the application for ejectment was instituted on 19th February., 1975, according to the evidence of appellant Muhammad Salim the rent were paid upto September, 1976. Thus, the dispute remains only that of expenditure incurred on the repairs and the receipts so produced pertaining to the repairs. We are left with only the word against the word i,e, the appellants contend that the permission was given by the deceased' landlord while the respondents contend that such a permission was no accorded. I have already discussed this matter and on the face of it is appears that the permission was accorded.
6. The learned counsel for the respondents has referred me to the West Pakistan Urban Rent Restriction Ordinance where the permission is to be given by the Rent Controller. In this case the permission was given by the android and hence it was not necessary to move an application before the Rent Controller.
7. In these circumstances this appeal is accepted and the order of the Rent Controller is set aside.
No order as to costs, is made.