1. ' This appeal is directed against the order dated the ejectment application was dismissed.
2. ' The brief facts of the case are that the respondent is a tenant of the appellant in respect of one of the units on ground floor on Plot No,163-M, Block III P.E.C.H.S. Ltd. Karachi on a monthly rent of Rs,750 under a tenancy agreement excluding payment of water, conservancy, Sui gas and electric charges. The appellant filed Ejectment Application No, 3148.. Of 1974 inter alia that he was a defaulter in payment of rent from July 1974 to October, 1974 and also failed and neglected to pay the water and conservancy charges from 11-2-1973 to 30th June, 1974 and also on the ground of personal requirement. The respondent in his written statement stated -that he tendered the rent but the appellant refused to accept the same and he also denied the appellant's personal requirement and also denied that he failed to make payment of water and conservancy charges.
3. ' On the pleadings the trial Court framed the following Issues:-
(1) Whether the opponent has committed default in tendering due rent in time?
(2) Whether the opponent is liable to pay water and conservancy charges?
(3) Whether the applicant needs in good faith bona finely the premises for personal use?
(4) What should the order be?
4. ' The Senior Civil Judge/Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues as not proved and dismissed the rent application vide order dated 10-1-1983.
5. ' The appellant above named, being aggrieved by the order dated 10-1-1983 of the XIIth Rent Controller, Karachi has preferred this First Appeal, on the grounds mentioned in the memo of Appeal.
6. ' Mr. Aminuzzaman, the learned counsel for the appellant has contended that the learned Rent Controller while deciding the issue of default in payment of rent, water charges and conservancy charges has not appreciated the evidence led by the parties and the documents placed on records.
7. ' On the other hand Mr. M. Qudratullah, the learned counsel for the respondent has contended that the order of the trial Court is "in accord with the evidence on record".
8. ' The appellant stated in the application that the respondent failed and neglected to pay the rent from July 1974 to October, 1974 amounting to Rs,3,000 and also failed and neglected to pay water and conservancy charges amounting to Rs,750 from 11th February, 1973 to 30th June, 1974. The respondent denied the amount of Rs,3,000 accumulated and stated that the respondent had been paying and tendering rent but the appellant had been refusing to accept the rent with the sole intention to create the circumstances and situation to eject him.
9. ' The appellant deposed that the respondent had not paid rent from July 1974 to October, 1974 till the institution of the Rent Application. The respondent in his deposition stated that he had paid rent up to July 1974 to the appellant through cross cheques. He also stated that he got issued five cheques from August, 1974 to December, 1974 to the appellant through her Chowkidar as per usual practice. He further deposed that in the month of November, 1974 he was informed by his wife that someone had returned the cheques from August to November, 1974 in a closed envelop to her with the direction that she should give the same to him. He sent a notice to the respondent asking her for return of the cheques through registered acknowledgment due. He did not receive any reply from the appellant but he got Court notice. He further deposed that the K.M.C. Attached the rent of the premises in his occupation. He also produced notice of attachment as Exh.B/10 and also produced an order of attachment as Exh.11. He also deposed that he paid Rs,2,100 and Rs,973 towards other expenses as detailed in Exh.B/16. He also produced two vouchers of payment towards gas charges to the period prior to his tenancy Exh.B/17 and rewinding motor of water pump Exh.B/18. He paid Rs,275 per month to one Chowkidar for about three months under directions of the appellant on her behalf from his pocket which were to be adjusted.
10. ' The learned trial Court held as follows:- "From the evidence as brought on the record, it is clear that the rent for the period from August, 1974 was not received by the applicant. According to the opponent, he had tendered the rent of the above period by cheques but the same were returned by the applicant. Apart from this, it is an admitted fact that due to non-payment of taxes, the assessor and Collector 'E' Division K.M.C. Had issued attachment order demanding the arrears of taxes from 1963-64 to 1964-65 amounting to Rs,15,216.30 vide Exhs.B/10 and B/11. However, this attachment order was stayed at the request of the tenants made through application with the direction to pay the taxes from the rent which was done. Taking into consideration all aspect of the case I am of opinion that the opponent has not committed willful default in payment of rent and as well as water and conservancy charges and the applicant wants to get the premises vacated from the tenant by hook and crook."
11. The above reasons given by the Rent Controller do not find support from the evidence on record.
12. The appellant stated that the respondent had not paid rent from July 1974 to October, 1974. The respondent stated .That he had paid rent up to July, 1974 to the appellant through cross cheques.
13. He also stated in his evidence that he got issued five cheques from August, 1974 to December, 1974 to the appellant through her Chowkidar as per usual practice. Firstly the respondent never took such a plea in his written statement, secondly no questions were suggested in cross-examination to the attorney of the appellant, thirdly the Chowkidar was not produced in the trial Court and even no attempt was made to this effect. Even no question was put to the attorney of the appellant to the effect that the appellant has employed Chowkidar.
14. ' In these circumstances the plea of issuance of cheques in favou of appellant and her refusal to accept or she returned the said cheques has no basis. The other submission that the K.M.C.
15. Attached rent was also of no force. The assertion of the appellant is that the respondent failed and neglected to pay rent from August, 1974 to October, 1974. I have perused the record of the lower Court and I find that attachment order is dated 13-3-1975 which is of a subsequent date that is, after institution of the rent application. The last submission of the respondent is that the respondent incurred certain expenses like rewinding o motor, payments for water tanker charges have also of no help and are without basis. Firstly no permission was sought from the Rent Controlled as provided by the provisions of section 12 of the Ordinance, secondly no permission was sought from the landlady. Lastly it is the responsibility of the tenant himself to incur such expenses himself.
16. For the aforesaid reasons I hold that the findings of learned Rent Controller are based on misreading of evidence and are also not supported by the evidence on record. I, therefore, accept this appeal, set aside the order of the Rent Controller and grant ejectment of the respondent on the ground of default in payment of rent for the months of August, 1974 to October, 1974 and also on the ground of default in payment of water and conservancy charges. However, I allow six months time to hand over the vacant possession on the condition that the respondent shall continue to deposit rent in terms of the Rent Controller's order, failing which the appellant shall be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the respondent fails to hand over the vacant possession of the premises in question on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without further notice to the respondent.