' This appeal is directed against the order dated 21-10-1981 passed by the learned VIIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No.1534 of 1975, dismissing the appellant's application for ejectment on the ground of dafault.
2. The brief facts leading to the filing of the above rent appeal are that the appellant let out the bungalow in question to the deceased respondent for 11 months for the period commencing from October 1973 to 31st August, 1974, at Rs. 1,200 per month for running a pre-primary school. It seems that on 31-8-1974 the appellant served a notice dated 31-8-1974 (Exh.7) stating therein, that the above 11 months' period would expire on 31-8-1974 and that the respondent should handover the vacant possession. The above letter was replied to pay the deceased respondent Mr.Ameer Wadiwala on 26th October, 1974 (Exh.8). Thereafter the deceased respondent had sent the following letters and forwarded the following cheques:--
(1) Letter dated 28-12-1974 Cheque of Rs.900 towards the rent of October less Rs.300 towards major repairs and K.M.C. taxes.
(2) Letter dated 30-1-1975 Cheque for Rs.900 being the rent for November 1974, less Rs.300 towards the major repairs and K.M.C. taxes.
(3) Letter dated 26-2-1975 Cheque for Rs.900 being rent for December, 1974, less Rs.51 balance paid towards K.M.C. taxes and remaining Rs.249 towards the major repairs.
(4) Letter dated 18-4-1975 Cheque for Rs.2,000 being rent for January and Febuary 1975 less Rs.400 towards the major repairs.
(5) Letter dated 30-5-1975 Cheque for Rs.1,100 being the rent towards the month of March 1975 less Rs.100 towards the major repairs.
(6) Letter dated 30-6-1975 Cheque for Rs.1,200 being rent towards the month of April 1975, and
(7) Letter dated 4-8-1975 Cheque for Rs.1,200 being the rent for May, 1975.
' It seems that the appellant filed the above rent case on 16-5-1975 on the ground that the deceased respondent contrary to the terms of the tenancy deducted a sum of Rs.300 out of the rent for the month of September, 1974 and has not paid rent from 1-9-1974 .to 21-1-1975 amounting to Rs.6,000. The above application was resisted by the deceased respondent and inter alia, it was pleaded that the appellant had suggested that the deceased respondent may pay the instalment towards the arrears of municipal taxes and may also carry out such repairs and may deduct a sum of Rs.300 therefrom towards the repairs. It was also pleaded that respondent had paid a sum of Rs.951 towards the municipal bill and further incurred expenditure in the sum of Rs.749 towards the major repairs. It was further averred that in terms of the agreement arrived at the respondent deducted from the month of September a sum of Rs.300. The learned Rent Controller on the basis of the pleadings of the parties framed the following three issues:--
(1) Whether the opponent has committed wilful default in the payment of rent from 1st September, 1974 to 31-1-1975 amounting to Rs.6,000 to the applicant?
(2) Whether the opponent carried out additions and alterations and major repairs as are likely to impair the material value or utility of the premises?
(3) What should the order be?
3. The appellant in support of the application examined his attorney Mirza Afzal Hussain (Exh .5), whereas deceased respondent was represented by his one of the legal heirs Muhammad Kassim Wadiwala. The learned Rent Controller after hearing the parties dismissed the above rent application on the ground that there was presumption that the appellant had permitted the deceased respondent to pay the municipal taxes and to carry out the major repairs and allowed the deduction of such amount from the future rent, in view of the fact that the appellant did not send any reply to the above letters. The appellant being aggrieved by the above order has filed the present appeal.
4. In support of the above appeal Mr. Kanwar Mukhtar Ahmad, learned counsel for the appellant has urged that on the basis of the evidence on record, it could not have been concluded that the appellant had permitted the deceased responent to carry out repairs and to adjust cost of the same from the rent or even the fact that the deceased respondent was asked to .make any payment towards the K.M.C. taxes. He has further, submitted that there is admitted default for the month of January 1975, on the basis of the respondent's letter dated 8-4-1975 Exh. 9/4.
' On the other hand, Mr. Yousuf Khatri, learned counsel for the respondent has urged that on the basis of the documentary evidence coupled with the fact that the appellant's attorney was unable to refute the respondent's suggestion in the cross-examination that the above deduction was made on the basis of the appellant's agreement, the factum that there was an arrangement between the appellant and the respondent stands proved. He has further urged as regards the alleged default for the month of January, 1975, that the default if any, was a technical default and the learned Rent Controller has exercised discretion in favour of the respondent and this Court will not interfere with the exercise of the above discretion.
5. In order to appreciate the above contentions of the learned counsel for the parties, it may be pertinent to reproduce Exhs. 7 and 8 referred to hereinabove, which read as follows:-- {{MISARRANGED DATA}} "Exh.
REGISTERED A/D.
From: S.M. Anis, 39-40-B K .D. A. Scheme No.1, KARACHI. 31st August 74. To, Mr. Ameer Wadiwala 50/5 Shikarpur Colony, Karachi-5.
SUB: NOTICE FOR VACATION. Dear Sir, ' The Bungalow No.13-B Muhammad All Housing Society Karachi was given to you on rent for a period of eleven months commencing from 1st October 1973 to 31st August 1974. The contract period has now been expired. You are requested to kindly vacate the aforesaid bungalow within the notice period of two months i.e. latest by the 31st October 1974.
' Kindly acknowledge receipt and confirm.
Thanking you, Yours faithfully, (Sd.)
(S.M. ANIS)."
Exh .8 .
Sulaiman Wadiwala Memorial School (Formerly LITTLE FOLKS' SCHOOLS)
52-Muslimabad KARACHI-5 (Phone 414091) 168-D, KHALID BIN WALEED ROAD BLOCK-3, P.E.C.H.S. KARACHI (Phone: 415179) D/29 BLOCK-A NORTH NAZIMABAD KARACHI.
39-40/B, K.D.A.-1, KARACHI.
Date 26th October, 1974.
Mr. S.M. Anis, Sir, ' LEASE AGREEMENT: BUNGALOW 13-B ' MUHAMMAD ALI HOUSING SOCIETY.
' We thank you for your letter dated 31st August, 1974.
Please note that we shall continue to occupy the above-mentioned bungalow at Rs.1,200 p.m. and request you to extend the lease for another 11 months period, beginning from 1st September, 1974.
' We understand that you seek to increase the rent to Rs.1,500 p.m. Please note that we feel grateful for your kindness in renting the bungalow to us to run a pre-primary school in the first instance. In doing so you have supported the noble cause of education. You will agree with me that for a Philanthropist like you an amount of Rs.300 is a paltry sum, but for us it will mean a big relief and help. If you do not press of its increase. According to law too no increase is permitted in rent to a landlord.
' Please note that we have paid Rs.950 to K.M.C. in taxes and Rs.2,522.82 remain to be paid to K.M.C.
Please also note that we have incurred substantial expenses on repairs for which a statement with bills (photostats) will be sent to you in due course.
' We enclose herewith a cheque for Rs.900 being rent for September, 1974 deducting Rs.300 towards the major repairs referred to above.
' Thanking you in anticipation, Ends: Cheque No.021647. R.900 Yours very truly"
6. It may be noticed that deceased respondent in his above reply dated 26-10-1974 did not refer to any arrangement allegedly agreed between him and the appellant as to the deduction of the repairing charges. In the subsequent letters which have been referred to herein-above and which are Exhs. 9/1 to 9/7, there is no reference to any arrangement as to the deduction of the repairing charges. It is an admitted position that after the expiry of 11 months period the appellant did not accept any rent. Mr. Khatri has placed emphasis on the factum that the appellant had not sent any reply to the above letters, whereby the deceased respondent had forwarded the cheques after deducting certain amounts towards the taxes and repair charges. He has, therefore, submitted that in the absence of any reply, it is to be presumed that there was an arrangement averred to by the deceased respondent in his statement. He has referred to the following cases:
(i) Kameshwar Lal v. The King AIR 1948 Pat. 406, in which the facts were that certain documents were entrusted to a clerk of the Advocate in connection with some cases. He was served with notice to return the documents which was not replied to by the clerk. After that a complaint under section 406, P.P.C. was filed. The matter went before the High Court against the conviction. While dismissing the revision, it was held by a learned Single Judge of the Patna High Court that from the act of failure to send a reply to the above notice an adverse inference can be drawn by the Court under section 114 of the Evidence Act.
(ii) Eastern Federal Union Insurance Company Ltd. v. Bawany Industries Ltd. Kar. 1979 CLC 321. In the above case, I, while deciding a suit filed by the Insurance Company for the recovery of Rs.90,586.71 in respect of four insurance policies observed as follows:-- "In my opinion the defendants cannot press into service the above principle. The defendants were one of the leading industrialists of Pakistan, and it is not their case they could not obtain legal advice on the plaintiff's Advocate's aforesaid notice dated 15-12-1976. The fact that the defendants did not send a reply to the plaintiff's Advocate's above notice through any lawyer indicates that the defendants were convinced that they were liable to pay the amount demanded and that they had no defence."
(iii) Muhammad Usman v. Fazal Karim 1981 CLC 104, in which a learned Single Judge of this Court in a second appeal maintained concurrent finding of two Courts below in an appeal filed by the landlord against the dismissal of his application filed for default. While dismissing the above second appeal, reference was made to certain letters sent by the tenant in which it was stated that with the consent of the landlord the repairing charges were adjusted.
7. In my view, the above cases have no application to the instant case. It is a well-established, principle of law that a tenant is to pay rent in terms of the Rent Ordinance. If he pleads any variation as to his statutory obligation to tender rent, the burden of proof is on him. It is also a well- settled principle of law that a tenent cannot adjust any amount towards the repair without first obtaining the permission of B the Rent Controller. However, in the present case as observed herein- above, it was pleaded that the repair was carried out with the permission of the appellant and that it was agreed that the above repairing charges would be adjusted towards the rent. The question, therefore, in issue is whether factually there was such an agreement/arrangement. The burden of this was on the deceased respondent. The witness who had appeared for the deceased respondent had no personal knowledge of the fact of the alleged arrangement. He had stated that he was informed by the deceased-respondent.
' On the other hand the appellant's witness had stated that he was not in a position to say whether there was any such alleged arrangement. The further question, therefore, is whether the initial burden which was on the deceased respondent to prove the aforesaid alleged arrangement/agreement was discharged by the respondent as to shift the burden on the appellant to rebut. If the documents which are before me, would not have been there, it could have been urged that the appellant's witness's above reply that he was not in a position to say that there was such arrangement, was fatal to the case of the appellant. But the documents referred to hereinabove, particularly Exh.8, reproduced hereinabove does not make any reference to any such arrangement, nor any reference has been made to any alleged arrangement in the subsequent letters whereby the cheques were sent after adjusting the alleged repairing charges. In my view, the above documents instead of supporting the case of the respondent belie the plea of arrangement. Furthermore, nothing has been brought on record to indicate what was the nature of the repair and what was the break-up of the amount allegedly spent on repairing charges. Even if I were to give adjustment to the above amount of Rs.951 being the amount paid by the respondent towards the K .M.C. taxes, there is no reason sustain able in law to claim adjustment for the alleged repairing charges amounting to Rs.750. In this regard reference may be made to the case of Mrs. Hazarabai Merchant and another v. Muhammad Ismail, reported in 1989 SCMR 406, in which the Honourable Supreme Court while declining leave in a petition for leave against the judgment of a Single Judge of this Court observed that a tenant cannot claim adjustment of the payment of the amount towards taxes without adjudication by a competent Court of law. Non-sending of reply by the appellant to the above letter, whereby the cheques were forwarded, in my view, would not constitute admission on the part of the appellant that there was any arrangement or agreement to the adjustment of repairing charges for more than one reason. Firstly, admittedly there is no reference in the above letters Exhs.9/1 to 9/7, as observed hereinabove, to any arrangement or consent on the part of the appellant to the adjustment of the repairing charges, secondly the cheques were not encashed by the appellant and thirdly his attorney had stated that the above letters were not replied to, as the appellant was out of country. The present case was filed on 16-5- 1975.
8. I am, therefore, not inclined to maintain the finding of the learned Rent controller on the question of default, as I am of the view that on the basis of the evidence on record the default has been proved.
' I, therefore, allow the appellant's application for ejectment on the ground of default and would order the ejectment of the respondent from the bungalow in question. However, since there is a school in the bungalow in question, I would allow one year period from today 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 execution application before the expiry of the above period of one year. Furthermore, in case the respondent fails to hand over the vacant possession on the expiry of one year's period, the Rent Controller shall issue writ of ejectment without further notice.
' Before parting with the above discussions, I may observe that the case is also fixed for hearing of Miscellaneous Application No.2023 of 1983 filed by the respondent pointing out that the respondent had paid a sum of Rs.28,618 and a further sum of Rs.7,434 during the pendency of the above appeal. The rent deposited by the respondent is lying with the Nazir of the civil Court. The Rent Controller shall not allow withdrawal of the rent by the appellant without refunding the above sums or without giving adjustment towards the future rent for the above sums of Rs.28,618 and Rs.7,434 on verification of the fact that the above sums were paid.
' There will be no order as to costs.