' This first rent appeal is directed against the ejectment order issued by IXth Senior Civil Judge/Rent Controller, Karachi, dated 30th August, 1984, whereby the appellant was ordered to be ejected from the disputed premises.
2. I had heard this appeal on 27-5-1985 and had made the following order:- "27-5-1985, Heard Mr. M.L. Shahani and respondent in person.
' For reasons to be recorded this appeal is dismissed. However, the appellant is allowed 5 months time to vacate the premises provided he continues to deposit the rent as directed by the Rent Controller. Direct writ of possession without notice will be issued against the appellant after 5 months or earlier in case the rent is not deposited."
(Sd.)
' The reasons for the same are these.
3. The relationship between the parties is admitted and the appellant is the tenant of the respondent in respect of a disputed premises. The respondent had filed ejectment application on 15-11-1979 claiming that rent at the rate of Rs,900 p.m. Had not been paid since August, 1979 to November, 1979 as the rent was payable in advance. The application was resisted by the appellant who denied that Rs,900 was the rent but alleged that the premises were let out at the rate of Rs,500 p.m. And since August 1979 he had started paying Rs,700 p.m. It was alleged that the respondent had never issued any receipt of rent although up to date rent had been paid. It was claimed in the written statement that the respondent had filed Rent Case No, 5909/78 against another tenant Ayaz Hasnain where the present appellant had filed his affidavit to the extent that rate of rent was Rs,500 p.m. And since the appellant had refused to depose falsely at the instance of the respondent therefore the ejectment application was filed against him. When the rent account was to be settled the appellant filed objections and in paragraph 5 he stated in the alternative that special oath on Holy Quran be given to the present respondent. The two issues (I) whether rate of rent was Rs,900 p.m. And (2) whether the appellant had committed default from August, 1979 were framed.
' On 14-4-1981 a consent application was filed by the parties to the effect that the respondent was willing to take special oath to the effect that the rate of rent is Rs,900 and not Rs,700 and that the appellant thereafter will deposit the rent at Rs,900 p.m. From August 1979 onwards. It was signed by the Advocate present for the appellant and the respondent as well as his counsel.
4. The Rent Controller allowed the said application by consent and put off the matter to 15-4-1981 for special oath. On the basis of the special oath administered the tentative rent order was passed in respect of the rate of rent at Rs,900 p.m.
' Where after the respondent made an application for decision of the case on the basis of special oath but the request was declined on 15-7-1982 and the parties were directed to produce evidence.
Consequently, the respondent filed his affidavit reiterating that Rs,900 was the rent of the premises payable in advance by 5th of each calendar month and the rent had not been paid since August, 1979. He further stated that he had taken special oath on Holy Quran on the basis of paragraph 5 of objections of appellant dated 18th August, 1980 where he had been challenged to take special oath and he has accepted the said offer and had taken the special oath on 9-8-1981 in open Court on the Holy Quran. He had further stated that the appellant was defaulter. In cross he had admitted that Ayaz Hasnain was his tenant and in that case the present appellant had filed an affidavit in favour of Ayaz Hasnain whom he had cross-examined. He had denied that the other tenants have the same rate of rent as the appellant and that they were paying Rs,500 p.m. He denied that the rate of rent of the premises was Rs,500 p.m. Or that it was raised from Rs,500 to Rs,700 in August, 1979. He admitted that there were four apartments in one bungalow with equal accommodation but stated that there is excess car parking for Mr. Hasnain. He denied that there was no default in rent. He was shown two counterfoils of money orders for May, 1980 and June, 1980 sent by the appellant at the rate of Rs,700 p.m. But he stated that the money orders were refused because they were sent After the case has been filed.
5. Dr. M. Amin filed his affidavit and stated that the rent had been raised from Rs,500 to Rs,700 p.m., that receipt has never been issued and he has always paid the rent and there were no arrears, He also stated that since he had refused to oblige the respondent in the case against Ayaz Hasnain, tenant, therefore, case had been filed against him. He denied in cross-examination that the rent was Rs,900 p.m. He admitted that he has no receipt either of Rs,500 or Rs,700 issued by the respondent as the respondent has refused to issue the receipt. He stated that he was employed in a continental hotel. He admitted that he had not issued any notice to the landlord for not issuing any receipts. He denied that he had not paid rent since August, 1979. He admitted that Mr. Hasnain was employee of a continental hotel. He denied that he had made a statement that he had agreed to special oath by the respondent but he admitted the fact that on 9-8-1981 the respondent had taken special oath on Holy Quran that the rent was Rs,900 but he stated that it was falsehood. He admitted that the Rent Controller had directed him to deposit rent at Rs,900 p.m. He admitted that two of the tenants had been ejected. He denied that he was in collusion with Mr. Ayaz Hasnain.
6. The Rent Controller had discussed the evidence of the parties and came to the conclusion that the rent was always paid in cash and the dispute arose when the appellant gave his evidence against Mr. Ayaz Hasnain. But he was of the view that since no substantial independent piece of evidence had been adduced by the appellant to prove that he had paid rent for the default period in cash and money order coupons produced as Annexures A, B, C were for April, May and June, 1980, therefore, they do not relate to alleged period of default. He, therefore, believed the respondent and held that the issue in respect of default had been proved.
' In respect of the issue of rate of rent the Rent Controller relied upon the special oath given to the respondent on Holy Quran.
7. Mr. M.L. Shahani's main contention is that the Rent Controller should not have relied upon the special oath administered on Holy Quran in respect of the rate of rent because it was only for a tentative period of the deposit of rent. He stated that the Rent Controller had refused to decide the whole case on the basis of special oath on 15-7-1982 and therefore, he should not have based his judgment on issue No, 2 on the special oath. I enquired from the counsel as to whether the appellant had been able to prove that the rate of rent was otherwise than Rs,900 p.m., the reply of the counsel was that his client had made a statement that it was Rs,700 p.m. The position, therefore, boils down to this that there was one statement of the appellant where he stated that the rent was Rs,700 p.m. From August, 1979 while there was another statement of the respondent who claimed that the rent was Rs,900 p.m. There was, therefore, one statement as against the other and there was no other piece of evidence in support of the appellant's case. While as far as the case of the respondent is concerned, there was a further at least corroborative piece of evidence available inasmuch as the parties had agreed to abide by a special oath if it was taken by the respondent and the same had the concurrence of the Rent Controller and thereafter the respondent had actually taken a special oath on Holy Quran that the rate of rent was Rs,900 p.m. In fact, after that special oath it did not lie in the mouth of the appellant to contest the same and therefore, I am of the view that the Rent Controller could have relied upon the special oath in respect of the rate of rent. But in any case, there was further evidence in the form of the deposition of the respondent on the basis of which the finding of the Rent Controller in respect of rate of rent being Rs,900 p.m. Can be justified. There is no other submission which could be urged by the learned counsel because if the rent was Rs,900 p.m. And the appellant was claiming that he had paid Rs,700 p.m. Then obviously there would be a divergence in the rent and the alleged payment.
The rent Controller has believed the statement of the respondent in respect of the default in payment of rent and there is no justification for me to upset that finding.
8. In this view of the matter this appeal was dismissed on 27-5-1985 and 5 months time was allowed to the appellant to vacate the premises provided he deposits the rent regularly with the Rent Controller.