This first rent appeal has been filed by the appellant/tenant challenging the order, dated 3-3-1985 of the Rent Controller. Karachi, allowing the ejectment case and ordering the ejectment of the appellant from the premises in question on the ground of default. I have heard Mr. G.S. Chohan, learned counsel for the appellant and Mr. Muhammad Ali Jan, learned counsel for the respondent.
2. The ejectment case was filed by the respondent/landlady on 22-2-1982 averring that the respondent is the owner and landlady of the house in North Nazimabad, Karachi, and a portion of the said house consisting of two bed-rooms one drawing/dinning room, kitchen and W.C. Was given on rent to the appellant/tenant on the agreed rent of Rs.1,500 per month payable by the 5th of every month in advance. Apart from this, the appellant was also liable to pay electricity and gas charges according to consumption. According to the ejectment application, the appellant taken the said premises on rent on 19-6-1981 and paid a sum of Rs.500 towards the rent upto 30-6-1981 and thereafter paid a sum of Rs.5,000 towards the advance rent for the months of July, August and September, 1981 leaving a balance amount of Rs.500 which stood adjusted upto 10-10-1981. The grievance of the respondent was that the appellant failed to pay or tender rent w.e.f. 11-10-1981. As noticed earlier, the ejectment application was filed on 22-2-1982. A written statement was filed by the appellant in which it was pleaded that the tenement consists of three bed-rooms (and not two bed-rooms as alleged in the ejectment application) at a monthly rent of Rs.1,000 payable in advance. It was further averred in the written statement that the tenancy commenced from 1-6- 1981 when the appellant paid rent in advance on 1-6-1981 at the rate of Rs.1,000. It was denied that the rent was settled at Rs.1,500 per month. It was then averred that the rent was being paid at the rate of Rs.1,000 per month in cash to the respondent, who did not issue rent receipts, although requests were made several times for issuance of such receipts. It was further stated in the written statement that at the time of inducting the appellant as a tenant the respondent had received from the appellant in cash a sum of Rs.19,000 as fixed deposit which was to be returned by the respondent at the time of the termination of the tenancy. According to the respondent, the agreement between the parties was verbal and the landlady did not issue any receipt in respect of the fixed deposit of Rs.19,000. In para. 5 of the written statement it is stated that on 10-2-1982 the appellant remitted a sum of Rs.1,000 as monthly rent for the month of February. 1982 as advance rent but the respondent avoided to receive the rent sent through money order and as such Miscellaneous Rent Application No.1328 of 1982 was filed. The case of the appellant is that the appellant paid very regularly and puncutally monthly rent in advance till the month of January, 1982 and the respondent had played a fraud upon the appellant and wanted his, ejectment. Only the parties gave evidence and no other witness was examined. By the impugned order, dated 3-3- 1985 the ejectment application was allowed. In the impugned order, the Rent Controller apparently came to the conclusion that the rent was. Rs.1,000 per month and he accepted the version of the respondent/landlady that in all an amount of Rs.5,500 had been paid by the appellant on account of rent and as such the rent had been paid upto October, 1981 and rent thereafter was not paid, although the rent for February, 1982 was tendered on 10-2-1982 which was not accepted by the landlady. He held that there was a default in payment of rent for December, 1981. The Rent Controller did not accept the case of the appellant that Rs.19,000 had been paid as fixed deposit.
3. It was first contended by Mr. G.S. Chohan, learned counsel for the appeuant, that in the evidence the respondent had stated that she had issued receipts for the rents paid by the appellant which was denied by the appellant and according to the appellant s case in the written statement as well as in his evidence, no rent receipts had been issued by the respondent. It was contended that in these circumstances, it was necessary for the respondent/landlady to have produced the counter- foils of the receipts and as admittedly no counter-foils had been produced, the burden on the respondent that she had not received rent apart from Rs.5,500 was not discharged. It was submitted that the Rent Controller had relied upon PLD 1982 SC 465 but the principle in the judgment of the Supreme Court was not correctly applied by the Rent Controller. In the facts of this case, the contention of the learned counsel is not correct. The principle laid down in PLD 1982 SC 465 had been correctly applied by the Rent Controller. It was not a case where the landlady had rented out several tenements on rent to various tenants where perhaps a presumption may be raised that a proper receipt book would be kept by the landlady in which case there would be counter-foils. It is a case of a tenant residing in one portion of the house. And the mere fact that counter-foils had not been produced would not necessarily lead to the conclusion that rent had been paid for which receipts were not issued. The landlady has stepped into the witness-box and she had received only Rs.5,500 in all towards the rent. No receipt or any other document was produced by the tenant to prove or show that any further amount had been paid. Admittedly the parties were not known to each other before the premises were rented out. According to the tenant, a huge amount of Rs.19,000 had been paid as fixed deposit.. In the facts of this case, it appearsB out of the ordinary that no document or receipt had been obtained by the appellant for such a huge amount and that no receipts had bee obtained, althougn rent was being paid according to the appellant ever month. In any case, the Rent Controller has accepted the evidence o the landlady and has not accepted the version of the appellant on account of absence of documentary evidence and I find no reason 't disturb the finding of the Rent Controller to the effect that only Rs.5,500 in all had been paid by the appellant to the responden towards ttie rent.
4. It was submitted by the learned counsel for the appellant that as there is no agreement in writing, the second part of section 15(2)(ii) of the 1979 Rent Ordinance would apply, which provides for payment of rent within 60 days from the period for which the rent is payable, and not the first part of section 15(2)(ii) of the 1979 Rent Ordinance, which provides for payment of rent within 15 days of the date fixed in the agreement for payment. In the facts of this case it is the first part of section 15(2)(ii) of the 1979 Rent Ordinance whiCh will apply. In this case it is an admitted position that the rent was payable I advance. The legal notice, dated 10-1-1982 of the appellant addressed to the respondent stated that according to the tenancy agreement betwee the parties, the monthly rent of the said premises was fixed at Rs.1,00t payable in advance.
Then in para. 1 of the ejectment application it wa averred, as observed earlier, that rent was payable by the 5th o every month in advance This assertion has not been denied. In th C evidence also the respondent had clearly stated that the monthly rent was payable by the 5th of every month in advance and this fact wa not controverted either in the cross-examination of the respondent o in the evidence of the appellant. As such rent was liable to be psis within 15 days of the date fixed by mutual agreement i.e. By the 20th of each month. As the finding of the Rent Controller is that onl Rs.5,500 had been paid towards the rent and the tenancy commenced from 1- 6-1981, rent upto 15th of November had been paid. The full rent of November had not been paid. The rent of December was also not paid. There is also default in the payment of rent for the month of January, 1982, which should have been paid by 20-1-1982. On the evidence on record a case of default had been made out and the order of the Rent Controller is not liable to interference.
5. As a result, F.R.A. No.206 of 1985 is dismissed with costs. H.B.T. .