' This is Second Rent Appeal. On 24th March, 1966 ejectment application was filed by the respondents for the ejectment of Fida Hussain/ tenant, predecessor-in-interest of the appellant, on the ground of default in the payment of rent since 1st July, 1965 subletting a portion of the premises to one Haroon and for unauthorized construction. On behalf of the respondents, Mst. Aisha, mother of the two respondents, gave evidence. On behalf of the appellants, appellant No, 4, Baqar Hussain, Haroon, the alleged sub lessee and Mr. Sarfaraz Khan, Advocate, gave evidence. By order dated 31st October, 1978 the ejectment application was allowed on the ground of default only and the appellants were ordered to be ejected. The appellants filed First Rent Appeal No, 629/1978 but the same was dismissed on 4th November, 1981 by the learned IVth Additional District Judge, Karachi.
By the present second appeal, the impugned order dated 31st October, 1978 of the Rent Controller and order dated 4th November, 1981 of the First Appellate Authority are challenged. As observed earlier, the only point involved in this appeal is whether the default had been committed in the payment of rent by the appellants from 1st July, 1965 (ejectment case having been filed on 24th March, 1966) for which the appellants were liable to be ejected. It may be mentioned here that originally ejectment application was filed against Fida Hussain. On his death, his legal heirs, appellant No, (widow) and appellants Nos. 2 to 11 (children) were brought on record. I have heard Mr. J. H. Rahimtoola, learned counsel for the appellants and Mr. Muhammad Sadiq, learned counsel for the respondents.
2. The dispute relates to tenements Nos. 1, 2, 3 and 4. The case of Fida Hussain/tenant was that he was tenant in respect of tenements Nos. 1, 2 and 3 since 1944 and of tenement No, 4 since 1966 and he was paying consolidated rent of Rs, 200 per month. It was further his case that in July, 1965 the respondents had agreed to sell the property in question to him and he paid Rs, 1,000 in cash to the respondents, who had agreed to execute an agreement of sale but the agreement of sale although drafted was not signed by the respondents, who returned the cheque of Rs, 6,000 to Fide Hussain but cash of Rs, 1,000 was adjusted towards the rent w. e. f. July, 1965 upto 30th November, 1965. It was further submitted by him in his written statement that subsequently the rent was sent by cheque but the respondents refused to accept the same and thereafter Fida Hussain received a notice from the Excise and Taxation Authorities requiring him to pay the rent to the Excise and Taxation Authorities towards the arrears of taxes which the respondents were liable to pay and had not paid and sum of Rs, 700 was deposited by Fida Hussain with the Excise and Taxation Authorities.
This amount of Rs, 700 was deposited on 26th April, 1966 after the filing of the ejectment case but before the notice of the ejectment case was served upon Fida Hussain.
2-A. In her evidence, Mst. Aisha Bai, mother of the two respondents/ landladies stated that the deceased Fida Hussain was a tenant of the property in question at the rate of Rs, 200 per month and that the deceased had committed default in the payment of rent from 1st June, 1965 till the filing of ejectment case. She further stated that she used to go to make demands for payment of rent but on one pretext or the other, Fida Hussain refused to give the rent. In her cross-examination she stated that she did not remember whether Fida Hussain was the tenant since 1944 but this much she admitted that he was the tenant for the last 15 to 20 years. She denied that Fida Hussain had given Rs, 1,000 in cash and Rs, 6,000 by cheque towards the earnest money for purchasing the house. She denied Exh. 32, draft of the sale-agreement, as a forged document. She stated that it was incorrect that the landladies returned the cheque for Rs, 6,000 to Fida Hussain. In so far as Exh.
37 is concerned, which is a notice addressed by Mr. Sarfaraz Khan, Adovcate, on behalf of the respondents to Fida Hussain, Mst. Aisha Bai stated that she did not know whether this notice was given to the Fida Hussain. It may be observed here that Mr. Sarfaraz Khan, Advocate had appeared as a witness for the appellants and he stated, after seeing Exh. 37, that this had been issued by him.
Baqar Hussain, one of the legal heirs of Fida Hussain and appellant No, 4, in his evidence reiterated the facts stated in the written statement filed by Fida Hussain. He stated that there was an agreement between the parties for the sale of property and Fida Hussain gave Rs, 1,000 in cash and also a cheque of Rs, 6,000 as earnest money and this amount was paid before the agreement was signed by the respondents but subsequently the respondents refused to sign the agreement and also did not return the amount to the appellants. It was further stated by him that the respondents returned the cheque of Rs, 6,000 and asked Fida Hussain that they would give adjustment of Rs, 1,000 against the rent from July to November, 1965. He stated that he sent the rent for December, 1965 by cheque by registered post but the same was refused. He further stated that he had gone to the house of respondents, for paying them rent of January and February, 1965 but they refused to accept the same. Thereafter, according to appellant No, 4, a notice was received from the Excise Department. Copy of the notice was sent to the respondents and then Fida Hussain deposited Rs, 700 and then Rs, 1,063.56 under the orders of the Court. The notice and challans have been produced by appellant No,
4. He also stated about the notice sent by Mr. Sarfaraz Khan, Advocate to Fida Hussain and he also produced the reply given by Fida Hussain to Mr. Sarfaraz Khan, Advocate.
3. From the evidence it had been established that a cheque of Rs, 6,000 was given by Fida Hussain to the respondents. This is admitted in Exh. 37, which is the notice dated 29th July, 1965 of Mr. Sarfaraz Khan, Advocate on behalf of the respondents addressed to Fida Hussain. But Mst. Aisha Bai denied in her statement before the Rent Controller that the respondents had received the cheque of Rs, 6,000. It is obvious that Mst. Aisha Bai was not giving a correct statement when she stated that the respondents had not received the cheque of Rs, 6,000. Now there are three versions about this cheque of Rs, 6,000. One version is given by Fida Hussain and the appellants and that is that there was an agreement between the parties pursuant to which the cheque for Rs, 6,000 together with cash of Rs, 1,000 was given by the Fida Hussain to the respondents. Then one of the versions on behalf of the respondents that has come on record is contained in the notice dated 29th July, 1965 (Exh. 37) of Mr. Sarfaraz Khan, Advocate. In this notice it was mentioned that Fida Hussain had agreed to increase the rent from Rs, 200 to Rs, 824 and that Fida Hussain had agreed to pay Rs, 19,776 being the arrears of rent from July, 1963 and had given the cheque for Rs, 6,000 towards part payment and promised to pay the remaining amount within two days. Now this version contained in the notice, dated 29th July, 1965 neither appears in the memo. Of the ejectment application not in the evidence of Mst. Aisha Bai on behalf of the respondents. The third version is that given by Afst.
Aisha in her evidence that the cheque was not given at all. As observed earlier she made an incorrect statement when she stated in her evidence that she' ad not received the cheque of Rs, 6,000. The version appearing in the notice, dated 29th July, 1965 of Mr. Sarfaraz Khan, Advocate, in the circumstances appears to be incorrect and perhaps it was an attempt made on behalf of the respondents to explain why cheque of Rs, 6,000 was received by them and in this attempt they have failed miserably. On the state of the evidence on record, both the versions given on behalf of the respondents have been proved to be incorrect.
4. In the circumstances the version of Fida Hussain appears to be correct, and that is, that an agreement had been reached for the purchase of property by Fida Hussain and a sum of Rs, 1,000 in cash and Rs, 6,000 by cheque had been given as earnest money by Fida Hussain to the respondents but later on the respondents refused to sign the agreement of sale and returned the cheque but retained the amount of Rs, 1,000. This amount was liable to be adjusted towards the rent. Both the Rent Controller as well as the First Appellate Authority were wrong in holding that the amount of Rs, 1,000 was not adjustable towards the rent. If the cheque for Rs, 6,000 and cash of Rs, 1,000 was received by the respondents in connection with an agreement of sale and later on the respondents did not agree to sell the property and returned the cheque of Rs, 6,000 but did not return the amount of Rs, 1,000 this amount remained payable by the respondents to Fida Hussain and on the request of Fida Hussain this amount was adjustable towards the rent. If this amount is adjusted towards the rent, the application for ejectment could not have been granted on the ground of default. Then it may be observed that Fida Hussain had been tenant since 1944 and there was no allegation that there had been any default in the payment of rent previously.
5. As a result of this second Appeal is allowed and the orders of the Rent Controller and the First Appellate Authority are set aside. There will be no order as to costs.