This rent appeal is directed against the order dated 19th of March, 1985 of IXth Sr. Civil Judge & Rent Controller, Karachi.
The relevant facts are that Shaukat A.I is landlord of Shop No. 1, Qadir Cloth Market, III-E-7, Nazimabad Karachi, while appellant Muhammad Bashir is a tenant. A rent case under section 15 of the Sind Rented Premises Ordinance, 1979 was filed on the grounds of default, nuisance to neighbours and damage to the property. Appellant tiled written statement in which the rate of rent was disputed and the other allegations were denied. Before the Rent Controller both the parties led their evidence.
Rent Controller on pleadings of the parties framed the following issues:-
(1) Whether the rate of rent is Rs. 210?
(2) Whether appellant has committed wilful default in payment of rent w.e.f. September, 1982.
(3) Whether the-appellant has damaged the case property and has impaired the value of the same and caused nuisance by not paying electric charges?
2. Issues Nos. 1 and 2 have been decided against the respondent/landlord. The ejectment has been ordered on the ground of nuisance and damage to the property. The respondent filed cross- objections and is aggrieved with the decision on the issues Nos. 1 and 2 which have been decided against him.
3. I have heard Mr. M. A. Karim Siddiqui for the appellant. It is argued that there is no evidence about damage of property and nuisance. It is contended that it is the responsibility of the landlord to pay K.E.S.C. Electric charges and due to non-payment and fault of landlord electricity of other shopkeepers was also disconnected. He has argued that appellant has not committed default and he has paid the rent up to December, 1982 therefore, question of default from September, 1982 does not arise.
Mr. Khalid Javed, appearing for the respondent submitted that appellant was taking electricity from sub-meter and used to pay the monthly bill to K.E.S.C. Directly but he deliberately closed the shop for 10 months and failed to pay the electric charges therefore K.E.S.C. Disconnected the main connection which created nuisance to all other shopkeepers. He has argued that rent from September, 1982 was not paid and appellant has forged the receipt of rent of February, 1982. He has relied on the counterfoils of the receipt book of the landlord which show that the receipt produced by the appellant was in respect of rent of February, 1982.
4. Shaukat A.I s/o Haji Qamaruddin landlord in his affidavit-in-evidence corroborated the version as given in the rent application and stated that up to 1971 the monthly rent was Rs. 150 which was gradually increased to Rs. 210 per month which appellant was paying up to August, 1982 at the rate of Rs. 210 for which receipts were issued to appellant regularly as well as to other tenants of the market. He has produced photo copy of the receipt of Annexures A, A-1, A-2, A---3 and A-4. He has also stated that duplicate copies of- the receipts are also available with him. He has stated that appellant is difficult and troublesome tenant and he has indulged in such activities which have caused nuisance to neighbours and due to non-payment of electricity charges by him the electricity of entire building was disconnected twice in the year 1982 which caused trouble and inconvenience to other occupants of the building. He has stated that appellant has damaged the floor of this shop as such has impaired the material value and utility of the premises and he closed the shop for the period of 10 months which has caused loss to the goodwill of the shop as well as the market. In support he examined Shaukat A.I s/o Fateh Muhammad tenant of Shop No. 6 of the same market who stated that landlord used to issue receipts to the tenants anti the shop No. 1 is closed/locked for last 10 months and electricity of entire market was disconnected twice during the year 1982 which caused trouble to occupants of the building. Nazir Ahmed Ex. 5 has corroborated the version given by other tenant Shaukat A.I. He is tenant in respect of shop No. 17 of the market.
5. Appellant Bashir Ahmed has filed his own affidavit in evidence and has not examined any other witness in support of his case. He has stated that shop was rented out to him by Qadiruddin and receipt for. The rent of may 1971 and deposit of Rs. 500 were issued by the son of the landlord namely Wajid A.I for the first time., The rent was mostly recovered by Wajid A.I or by Asghar A.I regularly but no receipts were issued except the receipt mentioned above with an ulterior motive and design to keep the appellant and other tenants under pressure.. He has stated that brother of the respondent has got the Kent for the month of December, 1982 and did not issue receipt at that UM but after few days when he was pressed by the appellant to enhance the monthly rent which appellant refused and pressed for the receipt for the month of December, 1982 whereupon the respondent issued the receipt dated 18-12-1982 for an amount of Rs. 175 as against the payment of Rs.
150. He has stated that some altercations took place between the appellant and respondent but he refused to correct the amount in the. Receipt. He has deposed that every tenant including the appellant was to pay the electric charges to the respondent to deposit in K.E.S.C. But he misappropriated Rs. 600 therefore K.E.S.C. Disconnected electricity. Appellant had to pay amount once again for the restoration of the connection and no one used to pay electricity bill directly. He has stated that after the death of Haji Qadiruddin he was not served notice under section 18 by the heirs of the deceased. He has denied the other allegation as mentioned in the rent application.
6. The rate of rent claimed by the respondent in the rent application is Rs. 210 P.M. Whereas the case of appellant is that the rent was Rs.
150. There is no rent agreement between the parties. In support the parties have produced rent receipts of 1971. According to receipt Ex-A the rent was Rs.
150 and similarly the rent vide receipt Ex-A-1 dated 7-8-1978 was Rs. 150 and Ex. A-2 shows that landlord received Rs. 175 and same is the, position in document Ex. A-3 up to July, 1980 and other receipt Ex. O-7 indicates that landlord received Rs.
175. Due to this contradictory evidence in absence of any other relevant document, the Rent Controller has rightly decided this issue against the landlord.
Issue No. 2 is in respect of default: The respondent has alleged that appellant has failed to pay rent w.e.f. September 1982 till filing of the rent case i.e. 9-1-1983. The case of the appellant is that rent was regularly paid up to December, 1982 and receipt Ex. 2 was issued. Shaukat A.I in his cross--- examination admitted that he had not given intimation to the appellant for the death of his father but voluntarily states that fact was known to the appellant. He has denied that receipt 18th December. 1982 Ex. 2 was ever issued by his brother or by him. He has admitted that his brother used to receive the rent but subsequently he himself started issuing rent receipts. The appellant in his written statement has stated that he paid Rs. 150 being the rent of December 1982 to which respondent later sent the receipt for Rs. 175 and he objected and returned the receipt for correction but he threw the same in the shop which has been misplaced somewhere. The appellant got receipt Ex. A-2 produced in cross-examination of Shaukat A.I. Appellant in para. 4 of his affidavit- in-evidence stated that rent of December, 1982 was taken away by .The brother of the respondent but did not issue receipt but after a few days the receipt dated 18-12-1982 was issued for Rs. 175.
The appellant has also taken the stand that no notice under section 18 was served on him. From the evidence it is not clear when Haji Qadiruddin died, This pica has not been taken in the written statement by the appellant. On the contrary, he has stated that relationship of landlord and tenant is admitted and appellant used to pay rent whenever the respondent came on the shop to realise the same but he never issued the receipt and also no such plea has been advanced in the affidavit-in-evidence about notice under section 18, therefore, it is clear that appellant was paying rent to the respondent. Not only this rent he has produced receipt A-2 showing that rent up to December, 1982 was paid. Had he taken the plea that default was due to the notice under section 18 it could have been considered but in the circumstances stated above this allegation and requirement of law has neither been proved nor substantiated as it was not taken in the pleadings.
The appellant has only produced one receipt Ex. A-2 showing that rent up to December, 1982 has been paid and this fact has totally been denied by the respondent and produced counterfoils of the receipt book maintained and kept by the landlord and the contention of the respondent is that some fabrication and manipulation has-been made in the original receipt which was issued on 18- 2-1982 but inadvertently the month in the bottom is given through over-sight as December 1982.
There is force in this allegation as rent of December, 1982 is not supposed to be paid on 18-2-1982 and it is not the case of the appellant. During the course of argument I asked the learned counsel and appellant who was present to produce the receipt, regarding payment of rent for the month of September, October and February, 1982 but they show their inability on the ground that no receipt has been issued. It is also submitted, on behalf of the respondent that from the counterfoils it is clear that rent for September, December, 1982 was not paid and he has referred to the receipt No. 2838 in the counterfoil showing that rent for January and February, 1982 amounting to Rs. 420 was also issued on 18-2-1982. There is difference between Ex. 2 and Ex. 0---7 and in absence of other receipts which deliberately appear to have not been produced by the respondent clearly show that some manipulations have been made inadvertently month of December, 1982 has been shown by the respon--dent. The appellant was shown the counterfoils of receipt book but he stated that receipt is not clear and he has no eye glasses. The specific questions were put to him about this receipt. He was represented by his advocate but he was not able to reconcile this anomaly. In absence of any convincing proof I am of the view that default in payment of rent for four months from September, 1982 to December, 1982 has been proved. Even otherwise default is claimed from Sep--tember and there is no evidence that appellant has paid the rent for September, October and November, 1982 and he is in default. The findings of the Rent Controller on this issue are set aside and in my view the default has been proved.
7. Now I come to the issue of nuisance. It is an admitted position and it is in the evidence that electricity of the shopkeepers of the market was discontinued due to non-payment of the electricity. The case in the rent application is that the appellant failed to make payment which amounts to nuisance and it is supported by two other tenants namely Shaukat A.I s/o Fateh Muhammad and Nasir Ahmed. Shaukat A.I has stated that shop was closed for one year and electricity was disconnected twice of the entire market in the year 1982 and this fact has been admitted by the appellant that electricity was discontinued but he has taken the stand that he used to pay electricity charges to the respondent and this plea was not taken in the written statement but reply is simple denial. In cross---examination he has admitted that electricity of the shop in question was disconnected due to non-payment of electricity charges. He has stated that electric meters of the shops are separate and he was liable to pay electricity charges and every shop has got a separate sub-meter. He has taken contradictory stand but the fact is that due to his default the electricity of all the shop-keepers was disconnected. It has been argued that it is a practice that in case of default of one tenant holding sub-meter the electricity of the entire market could be disconnected. Appellant has admitted in the cross-examination that he applied to K.E.S.C.
In the year 1982 for electricity. He has produced copy of application Ex.
4. It shows that he paid the bill alongwith penalty but in spite of that electricity was not restored. From the evidence it is proved that due to non---payment of electricity charges by the appellant all the shopkeepers have suffered and it amounts to nuisance. On this I refer to a case reported m 1982 CLC 332. The Rent Controller has also discussed the entire evidence on this point in detail. I also hold that Rent Controller has rightly decided this issue against the appellant. So far damage is concerned the evidence of Shaukat has gone unchallenged.
Upshot of the above discussion is that respondent has proved the case and the appeal is therefore dismissed with no order as to costs. The appellant is liable to be evicted.