These two first rent appeals No. First Rent Appeal 706/86 and First Rent Appeal 707/86 are directed against the orders dated 31 July, 1986 of Ist Senior civil Judge and Rent Controller (South), Karachi, whereby he allowed the ejectment application of Abdul Rasool.
2. The facts are that the respondents are the owners of houses bearing No. 18/1 and 19/1, Plot No. K- 17, 3/A, Fakir Muhammad Dilcra Khan Road, Karachi, whereas appellants Bashir and Abdul Jabbar were the tenants @ Rs. 25 per month respectively. The Rent Cases No. 787/82 and 788/82 Were fried against the appellants on the ground of default from July, 1980. In written statement then have disputed the rate of rent and slated that respondent used to acknowledge the receipts at the agreed rent of Rs. 12 and 10 respectively, hat with mala fide intention issued some receipts C, Rs. 25 per month and handed over the sang to minor children. It is stated that respondent refused to receive the rent which was tendered for the month of May, 1980 through money order thereby appellants are depositing the rent in the Misc: Rent cases.
The Rent Controller framed the following issues:-
(i) Whether the appellants are wilful defaulter?
(ii) What should the order be?
3. The Rent Controller in his orders allowed the rent applications on the grounds that appellants deposited the rent in the Misc: rent cases less than the settled rent of Rs. 25 per month as agreed between .The parties. Both the appellants have been held to be wilful defaulters on this ground otherwise there is no default as appellants started depositing rent in Misc: rent cases:
4. I have heard Mr. Abdul Wajid Wyne, Advocate for the appellants. It is argued that no default had been proved as appellants were depositing the rent in Misc: rent cases. It is submitted that rate ofst rent was disputed in the written statement and no such issue was framed by the Rent Controller.
Mr. Mehar Hussain A. Masawa, Advocate for the respondent submitted that there is an admission on the part of appellants in connection with the rent @, Rs. 25 per month.
5. The main ground on which ejectment applications have been allowed is that appellant deposited less than the agreed rent in the Misc: rent cases otherwise the default in payment of rent has not been proved. The rate of rent is disputed by the appellants and in support they have produced some receipts relating to the payment of rent @ Rs. 12 and Rs. 10 respectively, but the contention" of the respondent is that rate of rent was enhanced to Rs. 25 per month with mutual agreement by the parties at Rs. 25 per month with effect from April, 1980. Both the Rent Cases No. 787/82 and 788/82 were filed on 16-2-1982--while default is claimed from July, 1980. It is in the evidence that both the appellants started depositing the rent in Misc. Rent Applications No. 4013/80 and 4008/80 since May, 1980 and June, 1980 respectively as such there was no default at the time of, filing of the rent applications. There is no written agreement regarding enactment of rent between the parties. It is alleged by the respondents that increased rent was payable by the appellants with effect from April, 1980. The Rent Controller-has not framed any issue about the rate of rent, which was under dispute. The rate of rent upto April, 1980 was @ Rs. 12 and Rs. A 10 respectively and such receipts have been produced on the records. From the perusal of Exhs. A/ 1.
A/2, A/3, ,A/4, A/5 and A/6 from Book No. 33, it is clear that these photo copies neither bear the signature of the landlord nor of a tenant. On the other hand receipts produced by the appellants about the rent paid @ Rs.. 12 and 10 respectively bear signatures of rent collector. All these points have not been considered by the Rent Controller. These documents have been produced by the respondents. There, is a column below these receipts as under:- Signature of tenant. For Ghulam Mustafa and others.
Both are blank.
6. For the reasons stated above, I am of the view that default has not been proved and there was no issue about the rate of rent and evidence is not convincing. I allow both these appeals by a single order as the landlord is same B and identical points are involved. The orders dated 31-7-1986 are set aside. However, the respondents are at liberty-to move the Rent Controller for Fixation of a fair rent.