1. ' This first rent appeal under section 21 of the Sind Rented Premises Ordinance 1979 is filed by the appellant/tenant against the order of the Rent Controller, dated 25th November, 1984 dismissing the rent application instituted by the appellant on grounds of personal and bona fide requirement, default in payment of rent, and conversion of premises from residential to commercial use.
2. ' The issue relating to conversion of premises from residential to commercial use was given up by the appellant before the Rent Controller and in this appeal after I heard the learned counsel for the appellant at some length he conceded that issue of personal and bona fide requirement' could not be established on the basis of evidence led before the Controller. This appeal, is therefore, pressed by the appellant only on ground of default in payment of rent and non-compliance of the tentative rent order of the Rent Controller. The appellant alleged default against the respondent in the application which was instituted on 29-1-1979 for the month of October, 1978 to December, 1978. It was alleged by the appellant in his rent application that the rent of premises was payable in advance as per agreement between the parties in the first week of every month according to English calendar. The respondent in his written statement admitted the writing Exh. 'A' filed by the appellant with his rent application but took the plea that it was only a money receipt and did not possess the characteristics of a rent agreement. Regarding default in payment of rent from October to December, 1978, the respondent contended that he paid the rent for October, 1978 on 7- 10.1978 through cheque No, 279580 for Rs, 250 and likewise rent for November and December, 1978 was paid through two other cheques bearing 'No, 272891 and 272893, dated 5-11-1978 and 5-12- 1978, respectively. It was further alleged that sometime after issuance of cheques, dated 5-11-1978 and 5-12-1978 the appellant approached the respondent and represented that he had lost these cheques and, therefore, respondent allegedly gave a sum of Rs, 500 in cash to the appellant in lieu of these two cheques on 13-12-1978. It was further alleged in the written statement that thereafter respondent gave another Cheque No, 272894 on 6-1-1979 to appellant towards the rent of January, 1979. On these assertions it was claimed that no default was committed by the respondent. On 1-8- 1979, the Rent Controller directed the respondent under section 13 (6) of Ordinance VI of 1959 to deposit in Court a sum of Rs, 2,000 being the arrears of rent from October, 1978 to July, 1979 before 30-9-1979, and further directed him to deposit the future monthly rent from August, 1979 before 15th of each following month. The respondent who was already depositing monthly rent in Miscellaneous Rent Case No, 1056/1979 was allowed adjustment of rent for the amount already deposited by him in that case. On 24-8-1982 the appellant moved application under section 16(2) of the Sind Reted Premises Ordinance, 1979 before the Rent Controller praying that the defence of appellant may he struck off as he has failed to comply with the order, dated 1-8-1979. The Rent Controller allowed the application of appellant by order, dated 13-1-1983 and struck off the defence of respondent-in the case. The respondent filed F. R. A. No, 107 of 1983 which was allowed by a learned Single Judge of this Court by judgment, dated' 19-12-1983 and the case was remanded back to the Rent Controller to decide the application filed by the appellant under section 16(2) of Ordinance XVII of 1979 alongwith the main case after conclusion of the evidence of the parties.
3. After the remand of the case the Rent Controller decided the case on merits but did not advert to the application of appellant under section 16(2) of the Ordinance which was to be disposed by him in accordance with the remand order, dated 19-12-1983.
4. ' From the pleadings of the parties it is absolutely clear that the respondent specifically took the stand in his written statement that the rent for October, 1978 was paid through cheque on 7.10-1978 while rent for November and December, 1978 were initially paid through two cheques issued on 5- 11-1978 and 5-12-1978 respectively but as these cheques were allegedly lost by the appellant he made cash payment against these two cheques to appellant on 13-12-1978. He further pleaded that he-paid rent for January, 1979 on 6-1-1979. There was no allegation in the written statement of respondent that he had 'paid the rent for October, 1978. To December, 1978 to appellant on any earlier date and at that too at one time. However, when the appellant was examined in the case and he produced several counterfoils of the rent receipts issued to respondent. The respondent strangely enough took the plea that he had already, paid the rent from October, 1976 to December, 1978 on 2-2-1978 to the appellant through receipt No, 4, dated 2-2-1978. Surprisngly enough, this false plea raised by the respondent in cross-examination of appellant and later in his affidavit of evidence, was not only accepted by the Rent Controller, brushing aside the overwhelming documentary evidence to the contrary, but this was the sole consideration which prevailed with the Rent Controller while dismissing the ejectment application of appellant on the ground of default in payment of rent. I reproduce here the operative part of the order of Rent Controller on the issue of default holding that no default was committed by the respondent for the months of October to December, 1978. It is as follows :- "From the evidence of the parites I find that applicant-in-chief at para. 5 of his affidavit has admitted that on receiving cheques from the opponent for the payment of rent, he immediately issued such receipts and accordingly he has produced above-quoted photo copy of 10 receipts out of which the receipt No, 4 shows that he (the applicant) received rent for October, November and December, 1978. Moreover, vie applicant has in his abovequoted cross-examination not stated that this receipt is a forged document but on the contrary he admits that this receipt has been issued by him but he further states that this pertains to the year 1977 and the year 1978 has been 'incorrectly' mentioned. This plea of the applicant regarding incorrect issuance cannot be believed as to be true because no any property holder can commit such mistakes at the time of issuing such receipt on realising the amount or receiving cheques.
5. ' In view of the above position I hold that the applicant has failed to discharge his burden against the opponent about this issue. As such there is no any wilful default for October, 1978, November, 1978 and December], 1978 as alleged against the opponent. This issue is answered accordingly."
6. ' If the Rent Controller would have cared to go through the written statement of respondent in the case and the overwhelming documentary evidence on record he would have not only discoverd that the defence of respondent that he paid the rent for the disputed months to appellant on 2-2- 1978 was false but would - have also reached the conclusion that the default in payment of rent was fully established on the part of respondent. From the perusal of counterfoils of receipts produced by the appellant it is quite clear that the usual mode of payment of rent adopted by respondent was through cheques. This was also the case of both the parties in the evidence before the Controller. Though the learned counsel for the respondent' made an attempt to argue before me that no rent receipts were issued by the appellant but there is no basis for this argument as firstly the respondent did not plead in his written statement that the appellant never issued receipts to him and secondly the respondent himself relied on receipt No, 4 dated 2-2-1978 to show that he paid rent to appellant for the months of October, 1978 to December, 1978. Apart from it the respondent admitted in cross-examination his signature on the counterfoil of rent receipt, dated 10-9-1977 (Exh. 0/1) produced by the appellant. A perusal of the counterfoils of receipts produced by the appellant will also show that they are kept regularly in the normal course of business and all payments made by the respondent from time to time through cheques are mentioned on the counterfoils. The entries of cheques on the counterfoils of rent receipt also found support from the statement of respondent made in cross-examination with regard to bank-statement Annexure `D' produced alongwith his affidavit of evidence. Counterfoils of rent receipt No, 4, dated 7-2-1978 was confronted to the appellant in cross-examination by the respondent's counsel and he gave the following reply :- "The Advocate for the opponent has shown me photocopy of receipt No, 4, dated 2-2-1978 and I say that it is incorrectly written that the rent for October, November and December. 1977 was received. It pertains to October, November and December, 1977."
7. ' A careful examination of the counterfoil of receipt No, 4 and other counterfoil produced by the appellant will establish that "1978" after October, November and December in the receipt was incorrectly mentioned instead of "1977". It is clear from even a cursory look of receipt No, 4, that the rent for October to December was paid towards arrears while the current for January, 1978 was paid through this receipt. This is also clear from the endorsement on the top of this receipt which reads as follows :- "October, November and December, 1977 and January, 1978."
8. ' If the respondent had really paid the rent for October to December, 1978 on 2-2-1978 as alleged by him it could not be towards arrears as it was an advance rent for those months which should have been shown as such in the receipt. Again there was no sense in paying the advance rent for the months of October to December, 1978, without payment of rent for the months of Feburary, 1978 to September, 1978. Again after 2-2-1978, the respondent paid two months rent each, vide receipt No, 11, dated 1-4-1978 and one month's rent each, vide receipts Nos. 23, 26, 30, 40, 41, 50, dated 17-6- 1978, 6-7-1978, 3-8-1978, 14-9-1978, 9-10-1978 and 8-1-1978, respectively. If the contention of the respondent that he paid rent upto December, 1978, vide reccipt No, 4, dated 2-2-1978 is accepted as correct, then the subsequent payments made by him from 1-4-1978 to 8-1-1978 works to be the rent u pto August, 1979 which was never the case of respondent at any stage. This aspect of the case was completely overlooked by the Rent Controller. There was absolutely no difficulty.,-in ascertaing the default in payment of rent for the disputed months in the present case as except for alleging only one payment by cash and that too against two lost cheques, the respondent's plea was that he all along paid the rent through cheques to appellant. In fact in order to establish this plea he produced bank statement showing payment of rent from Feburary, 1978 onwards through cheques to appellant. The statement of bank produced by the respondent as Annexure 'D' to his affidavit of evidence is as follows :- "Mustafa Building, Flat No, 2-B.S. 15/3, Federal 'B' Area, Karachi.
9. Dear Sir, With reference to your letter, dated 5th February, 1979, requesting us to provide you details of various paid cheques, we are giving below the required information also enclosed. Cheque No, Dated. As under, Amount Photocopy of these cheques are Date of Name of Payee payment. Feb.
10. 192769 6-2-78 Rs, 250 Mr. Muhammad Mustafa. 1-4-78 Mar. 279572 5-3-78 Rs, 250 -do- 1.4-78 April 279575 16-6-78 Rs, 250 -do- 24-6-78 May. 279576 6-7-78 Rs, 250 -do- 10-7-78 June 279578 3-8-78 Rs, 250 -do- 3-8-78 July 279579 4-9-78 Rs, 250 -do- 14-9-78 Augs. 279580 7-10-78 Rs, 250 -do- 9-10-78 Sept. 272894 6-1.79 Rs, 250 -do- 13-1-79 Thanking you, .Yours faithfully MANAGER."
11. ' The respondent when asked in cross-exaination made the following statement with regard to above statement of bank :- "I see the Bank statement as Annexure 'D'. It is a fact that cheque No, 192769 was for the month of February, 1978. The above cheque for March, 1978., The subsequent cheque is for April, 1978. The remaining cheques are for the subsequent months. It is fact that last cheque shown in Bank statement is for September, 1978 and it bears the number 272894, dated 6-1-1979. It is incorrect to suggest that the statement of Bank is false."
12. ' It is also pertinent to mention here that when asked in cross-examination the respondent gave following reply with regard to receipt No, 4, dated 2-2-1979.
13. "It is a fact that as per Exh. 4, I have stated that the rent for November, December, 1978 has received by the applicant. It is incorrect to suggest that this statement of mine is not true. It is fact that if Exh.
14. 4 is proved to be incorrect with regard to the entry of receipt of rent for November to December, 1978 then it will be presumed that I have not paid rent. It is fact that, I never paid the rent for 5, 6 months together in advance."
15. In view of the above admission of respondent in cross-examination and the pleas in written statement there was hardly any justification or material available to the Rent Controller to have reached the conclusion the rent for the months of October to December, 1978 was paid td the, appellant, vide receipt dated 2-2-1978. In fact the conclusion of Rent Controller is not only based on perverse appreciation of evidence but is also based on fallacious .Reasoning. It was equally disgusting to note that the learned counsel for the respondent in spite of realising the falsity of the stand taken by him before the Rent Controller that the respondent. Had paid the rents from October 1978 to December, 1978 through receipt No, 4 dated 2-2-1978, persisted to justify the same by contending that the counterfoils of the Rent receipts were admitted on record surreptitiously before the Rent Controller behind the back of respondent. When it was pointed out to the learned counsel that further cross-examination of appellant before the Rent Controller was reserved at his request for production of counterfoil and these counterfoil were brought on record at his instance on the next date, he pleaded his ignorance about the same .Although he represented the respondent before the Rent Controller. Similarly when asked about the bank statement Annexure 'D' produced by his client (respondent) before; the Rent Controller, the learned counsel to my utter surprise contended that the cheque, dated 6-2-1978 represented the rent for April, 1978 and as such the cheque, dated 7-10-1978 was towards the rent of October, 1978.. This deliberate attempt on the part of learned counsel for the respondent to mislead the Court is regrettable as the respondent in his cross-examination admitted that the cheque, dated 6-2-1978 represented the rent for February, 1978 and the subsequent cheques for subsequent month which means that the cheque dated 7-10-1978 was paid towards the rent of August, 1978. Not onlythis, the respondent who was present in Court when asked in presence of his counsel confirmed before me that cheque dated 6-2-1978 in the bank statement (Annexure 'D') was towards rent of February, 1978 and subsequent cheques were for subsequent months. Confronted in this situation the learned counsel turned round and stated that if he is given time he can produce evidence to show that two cheques issued by respondent were not entered in the bank statement. The conduct of the learned counsel in the case is deploreable. In view of the above discussed evidence there is no room fo any doubt that on the date the appellant instituted the rent case, rent from October, 1978 to December, 1978 was not paid. The learned counsel for the respondent also raised an alternate argument before me that the application on the ground of default in payment of rent was premature on the date of its presentation as there was no agreement between the parties for payment of rent in advance by any, specified date. The appellant in his ejectment application in para. 2 pleaded as follows :- "2. That the opponent named above is the tenant in respect of No, 2 Mustafa Building, B. S. 15/3, Karimabad, F. B. Area, Karachi at a monthly rental of Rs, 250 on advance rent basis, commencing from 15th October, 1972 under a written Agreement, dated 15-10-1972. A photostat copy of the Agreement is annexed herewith and marked as Exh. 'A' for the perusal of this Hon'ble Court. The tenancy is at will and not for any particular period is agreed upon."
16. ' The respondent in his written statement dit not dispute the content of para. 2 reproduced above but stated that the writing Annexure 'A' to application was only money receipt and it did not fulfil the requirement of an agreement. The writing Annexure 'A' relied by the appellant reads as follows :--- "Received from Syed Muhammad Yousuf son of Syed Nazirul Hussain Rs, 750 (Rupees Seven Hundred Fifty only) cash being payment as security deposit to be rerunded upon vacation of the premises and after adjustment of dues if any.
17. ' Syed Muhammad Yousuf shall pay the rent Rs, 250 (Rupees Two Hundred Fifty only) per month on advance rent basis commencing from 15th October, 1972.
18. ' This receipt is for the Flat No, 2, of Mustafa Building B. S. 15/3, Federal 'B' Area Karachi. Consisting three rooms one hall, one bathroom and one laterine and oue kitchen and open courtyard. Syed Muhammad Yousuf shall pay the rent regularly every month in advance on the first week of every calendar mouth and to pay for electrical energy consumed in the 'Demised premises' (and addition Rs, 25 for sui gas if used).
19. Landlord Witness : (Muhammad Mustafa)
20. Dated October, 1972 Tenant (Syed Muhammad Yousuf).'
21. ' A reading of the above writing which is admitted by the parties, will show that payment of rent was contemplated in advance in the first week of every month. The learned counsel for the respondent was unable to advance any argument in support of his contention that the above writing did not fulfil the requirement of agreement between the parties to pay rent of the premises in advance. No particular form is prescribed under any law for entering into such agreement and, therefore, there is no valid ground to hold that the writing reproduce above did not constitute an agreement between the parties to pay rent of the premises in advance.
22. ' I will now take up the default alleged by the appellant against the respondent in complying with the direction of Rent Controller under section 13 (6) of the repealed Ordinance VI of 1959. The tentative rent order was passed by the Rent Controller on 1-8-1979. The respondent was required to deposit in terms of the above order a sum of Rs, 2,000 fro October 1978 to July, 1979 in Court before 30-9-1979. The respondent was allowed to adjust the rent already deposited by him in Miscellaneou Rent Case No, 1056/1979 from the above amount. The respondent was also directed to deposit future monthly rent from August 1979 before 15th o each month. The respondent deposited until 13-9-1979 in Rent Case No, 1056 of 1979 a sum of Rs, 1,750 only. He further deposited a sum o AF. 250 in the rent case instituted by the appellant on 30-9-1979. In thi timer, the respondent only Complied the direction of Rent Controller relating to deposit of arrears of rent but committed default in payment of rent for August, 1979. This petition is almost admitted as would appear from the order of remand, dated 19-12-1983 passed by this Court in F.R.A No, 107 of 1983. No attempt was made by the respondent after remand of case to Rent Controller, to establish that the rent for August, 1979 was paid or deposited by him in Court or that the default for August, 1979 was for reason beyond the control of respondent. The respondent, therefore, also committed the default in complying the direction of Rent Controller.
23. ' For the above reasons the appeal is allowed and the order of Ren Controller is set aside. The ejectment application of appellant is granted on the ground of default in payment of rent from October to December 1978 and for non-deposit of rent for August 1979 in Court as directed by Rent Controller. The respondent will also bear the costs of this appeal. In view of the fact that the respondent had raised a false plea of payment of rent. I was inclined to grant him only one month to vacate the premises but the learned counsel for the respondent stated that he proposes to file an appeal against the order to Supreme Court and for that purpose he needed longer time. I accordingly grant four months to respondent to vacate the premises subject to condition that he will continue to deposit monthly rent in Court during that period. The appeal was disposed of by a short order, dated 28-11-1985 and these are the detailed reasons for the short order.