1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the landlord against the order of Rent Controller No. 4, Karachi rejecting application of the appellant filed against the respondent on the ground of default.
2. ' The application was filed by the appellant on 6-1-1975; alleging default against the original tenant namely Raja Allah Ditta, deceased (the predecessor of the present respondents) from 1-7-1974 to 1-1-1975, ex parte order of ejectment was passed against Raja Allah Ditta but was set aside by consent on 27th October, 1976. However, before any written statement could be filed by Raja Allah Dita, he died and thereafter the present respondents who are his L.Rs. filed their written statement on 18-2-1980. In paragraph 4 of their written statement the respondents denied the default alleged against Raja Allah Ditta and stated as follows:-
4. "That the contents of para. No. 5 are false to the core, as such the same are denied. The applicant or his wife Mst. Qudsia Begum used to come to the house of the opponents, who were used to be paid the rents regularly. In case none of them turned up, the opponent No. 2 Muhammad Liaquat used to go to the house of the applicant to pay him the rent. No rent receipt was ever executed and delivered to the opponents or their deceased common ancestor. In case no contact was possible, the rent amount used to be sent by money order. And in case the money order was received back undelivered, the applicant was paid the rent amounts on the very subsequent meeting. The tenancy started from the 9th day of March, 1969, and the opponent used to pay the applicant for the months starting from ninth of a month to 8th of the subsequent month.
3. It is false that the rent is due from 1-7-1974. The applicant was paid rent till 8-10-1975 and the rent from 9-10-1975 to 8-10-1976 was paid through the Small Causes Court, Karachi. Since the opponent never defaulted in payment of rent, as such at no time the demand was made by the applicant. It is pity that on the one hand the applicant used to receive the rent from the deceased opponent and on the other hand he kept the deceased opponent in darkness and filed a false and frivolous case against him."
4. ' The appellant in support of his case examined himself and also produced the original agreement of tenancy executed between him and Raja Allah Ditta. On behalf of the respondents one of the L.
5. Rs. namely, Muhammad Liaquat was examined and he produced one postal receipt for money order for Rs. 135 and the money order coupon, dated 24th December, 1974 and another money order receipt, dated 22nd January, 1975 for Rs.135. He also produced a receipt showing deposit of a sum of Rs.1,572 in distress warrant proceedings No. 314/76 by deceased Allah Ditta. The Rent Controller after hearing the parties and going through the evidence came to the conclusions that no default has been established against the respondents and accordingly dismissed the application filed by the appellant. The conclusion arrived at by the Rent Controller are unsustainable in law and are based on complete misreading of evidence in the case. The appellant in his evidence before the Rent Controller categorically stated in his affidavit of evidence that at the time he filed the application the tenant was in arrears of rent from 1-7-1974 to 1-1-1975.
6. He further stated that after institution of rent case he recovered one year arrears of rent from 9-10- 1975 to 8-10-1976 as he could not recover in those proceedings arrears of rent in excess of one year rent. There appears to be no cross-examination of respondent in challenging these assertions. The general suggestion given to this witness in cross-examination that the appellant was regularly paying rent, was denied and it is also sufficiently disproved by the fact that even after filing of rent case the appellant had to resort to distress warrant proceedings to realise arrears of rent. In support of their contention that the rent was paid regularly the respondents produced one money order receipt, dated 24-12-1974 but it is admitted that this money order was returned undelivered. It is an admitted position that after filing of rent application in January, 1975 no rent whatsoever was paid or rendered by the respondents and in fact under the distress warrants proceedings the appellant realized rent from 9-10-1975 to 8-10-1976. The Rent Controller while resolving the issue of default in favour of the respondents held that as the appellant had admitted that he did not maintain any account for the rent and had also not produced the counterfoils, therefore, the rent for the disputed period was paid. In arriving at the above conclusion the Rent Controller also took into consideration the admission made by the respondents that sometimes he received the rent and sometimes his wife also received that rent. The inference drawn by the Rent Controller from the above evidence that the rent for the disputed period was paid is wholly unwarranted. The Rent Controller completely overlooked that in cross-examination of appellant no suggestion was made,as to the date of payment of rent for the dispute period by the deceased Allah Ditta or by the respondents either to him personally or to his wife. The respondent in cross-examination suggested to appellant that four times rent was sent by money orders but no proof was tendered.
7. Even in their own evidence, the respondents did not mention the date on which the.payment of rent was allegedly made by them to appellant or his wife. The undisputed payment of rent for one year in distress warrant proceedigns by the respondents after institution of rent case was alone sufficient to hold' the respondents as defaulter in payment of rent.
8. For the aforesaid reasons I allow the appeal, set aside the order of Rent Controller and grant the application for ejectment. The respondents are directed to vacate and hand over the possession of the premises to the appellant within four months from today subject to their depositing rent in Court as directed by the Rent Controller for this period. There will however, be no order as to costs.