' This order would dispose of F.R.A. No, 274/88 filed by Dost Muhammad (hereinafter to be referred to as the tenant) and F.RA. No, 328/88 filed by Mst. Ramzan Bibi and others (hereinafter to be referred to as the landlords). Both these appeals are directed against the judgment delivered in Rent Case No, 1520/86 on 24-2-1988 by the IInd Senior Civil Judge and Rent Controller Karachi South.
2. Admittedly the tenant is in possession of the premises in litigation mentioned in para 1 of the rent application. Rate of rent is admittedly Rs,50 per month.
3. On 24-11-1986 the landlords filed Rent Case No, 1520/86 for eviction of the tenant from the disputed premises on the grounds of default, sub-letting and bona fide personal use. It was averred in the rent application that the tenant had not paid rent since 1-1-1983 and had rendered himself liable to eviction. It was also averred that the tenant had handed over possession of the premises in case, to someone else while he was living in a house at North Nazimabad, Karachi.
Lastly it was averred that the case premises were required in good faith by Sultan Akhtar one of the landlords for personal occupation as he was living in a rented premises.
4. All the three grounds taken for eviction were controverted by the tenant in his written statement.
Case of the tenant was that in January, 1983 he offered rent to the landlords for January, 1983 to April, 1983 but the landlords refused to accept the same, as they wanted enhancement of rent at the rate of Rs,125 per month. In view of this, the tenant claimed that he had been depositing the rent in Court of the Rent Controller under Miscellaneous Rent Case No, 1551/83. It was further pleaded by the tenant that the landlords had filed rent cases for eviction of their other tenants and during pendency of such cases the landlords constructed in the same building two additional flats, which were let out, one to Abdul Karim and another to Zahoor Ahmed. On the question of subletting the tenant contended that all his postage and correspondence was being received at the address of the case premises where he was living.
5. After recording evidence learned Rent Controller under the, impugned judgment dated 24-2- 1988 found the ground of default in payment of rent to have been proved against the tenant, while the grounds of subletting and personal requirement were found not proved. Since the ground of default in payment of rent was proved hence eviction of the tenant was ordered within 60 days.
6. FRA No, 328/88 is directed against findings of the Rent Controller holding that the grounds of personal requirement and subletting were not proved. FRA No, 274 of 1988 is directed against finding of the Rent Controller to the effect that the ground of default in payment of rent was proved.
7. Mr. Muhammad Ashraf Bhatti, learned Counsel for the tenant argued that his client was tenant in the case premises (Flat No, 6) for preceding 25 years and during such a long period there was no instance of default in payment of rent and that no rent application was filed against the tenant by the landlords prior to filing of the present rent proceedings. It was further argued that rent for January, 1983 was payable by February, 1983 and the penal provision would have applied if the rent was not offered for a period of 60 days from the date on which the rent was due. In this respect he submitted that rent was offered to the landlords and they refused to accept the same and hence the rent could not be deposited in Court of the Rent Controller before 20-3-1983. It was argued that even if there was default it was for 20 days only and the discretion in such case should have been exercised in favour of the tenant. In this respect reliance was placed on the case of Muhammad Yousuf v. Abdul Latif and others 1982 CLC 398. Learned Counsel for the tenant further argued that on 24-11-1986 when the rent case was filed, the claim of rent for January, 1983 was timebarred and there could be no order of ejectment based on non-payment of timebarred rent. In support he cited the cases of Ashfaq Rehman v. Muhamad Afzal PLD 1968 SC 230 and Muhammad Ahmed v.
Mst. Qamar Anwar Shaikh 1980 CLC 664. On the point of personal requirement, learned Counsel for the tenant argued that the landlords had failed to establish on record that Sultan Akhtar was living in a rented house and that the two receipts produced in support did not bear flat No, and they were not signed by the same person and even name of the tenant written in one receipt was different from the name written in other receipt. In respect of the subletting, learned Counsel for the tenant referred to three letters received by the tenant from Habib Sugar Mills Limited at the address of the case premises. Photo copies of those letters have been produced as Ex: 0/3, Ex: 0/4 and Ex: 0/5.
8. Mr. Abdul Wajid Wyne, learned counsel for the landlords argued that the first deposit of rent was made in Court by the tenant on 26-5-1986 under receipt Ex: 0/2 and as such no rent was deposited even in Court of the Rent Controller before 26-5-1986 and as such the default was proved. It was further argued that there was no effort by the tenant to send rent of the premises to the landlords by money order. In respect of the rent for January, 1983 it was argued that the same was payable by 1-4-1983 if the tenant wanted to avoid eviction and that even if the rent was deposited in Court of the Rent Controller on 20-4-1983, it was not deposit of rent within time at least for the month of January, 1983. It was further argued that the tenant had not mentioned the date on which he offered the rent for January, 1983 to the landlords and he had not explained as to why the rent was deposited in Court as late as on 20-4-1983. Learned Counsel for the landlords cited the case of Allah Din v. Habib PLD 1982 SC 465 where it was observed as below:-- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13(2)(i) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question."
' On the point of subletting the only argument advanced was that a letter sent to the tenant at his Nazimabad address was duly delivered to him and this showed that he was living in his house at Nazimabad and not in the case premises. On the ground of personal use it was argued that out of the 10 landlords Sultan Akhtar required the case premises because he was living in a rented house after his marriage in 1985. In this respect, evidence of Shahzad was relied.
9. The current rate of rent of the premises is admittedly Rs,50 per month. Sultan Akhtar one of the landlords said in his affidavit on oath that the tenant had not paid or tendered rent and was in arrears from 1-1-1983. In his affidavit Sultan Akhtar did not state if the rent was offered to him and to other landlords and if the same was refused. Tenant Dost Muhammad said in his affidavit that he always paid rent for one year by cheques and that he offered rent for January, 1983 to April, 1983 to the landlords but they refused to accept the same at the rate of Rs,50 per month and demanded Rs,125 per month. The tenant was subjected to sufficiently long cross-examination but it was not suggested to him that he had not offered rent for January, 1983 to April, 1983 to the landlords. In the circumstances, the onus was heavily on the landlords to establish that rent for January, 1983 to April, 1983 was not offered to them.
10. There is force in contention of learned Counsel for the tenant that on 24-11-1986 the rent for January, 1983 was time-barred. Question arises, as to what is the effect of non-payment of time- barred rent on the ejectment proceedings. In the case of Muhammad Ahmed v. Mst. Qamar Anwar Shaikh 1980 CLC 664 the view taken was that if default in payment of rent within prescribed period was committed, the tenant would be liable to be ejected notwithstanding subsequent payment of arrears of rent, unless he can make out a case of waiver on part of the landlord. In the cited case the default in payment of rent was held to have been wiped out due to conduct of the landlord in accepting arrears of rent and allowing laps by passage of time. The most important point held in the cited case was that the ejectment cannot be sought on the basis of arrears of rent for a period falling beyond the limit of three years from the date of institution of proceedings. In the case Ashfaqur Rehman PLD 1968 SC 230 it was held that a Rent Controller acting under section 13(6) of the W.P. Urban Rent Restriction Ordinance cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation. This authority was not on the point. However, the case of Muhammad Ahmed 1980 CLC 664 applies to this case on all the fours. Moreover, the delay in payment of rent for January, 1983 was only of 20 days. In the case of Muhammad Yousuf v. Abdul Latif and others 1982 CLC 398 there was default in payment of rent found to have been technically committed only once in 11 years of tenancy and such default was not wilful and it was held that Rent Controller had acted within his jurisdiction in exercising discretion in favour of the tenant. In view of the case-law discussed, I am of the view that the tenant was not liable to be evicted on the ground of default in payment of rent as the alleged default was of only 20 days and there is evidence on record to show that rent of January, 1983 to April, 1983 was offered to the landlords but they refused to receive it.
11. On the question of personal requirement the case of the landlords is shattered by the fact that during pendency of previous ejectment applications based on identical ground of default and personal requirement, two flats newly constructed were rented out to two different tenants. Hence the Rent Controller rightly found the ground of personal requirement to have not been established.
12. In respect of the subletting the landlords did not give full particulars. It was not known as to who was the sub-tenant and how much rent he was paying to C the tenant. Merely because a letter addressed to the tenant was delivered to him at his Nazimabad address, does not show that he had relinquished the possession of the case premises in favour of a third person. The tenant is said to be having his office in Nazimabad. However, the onus was on the landlords to prove subletting and they have failed to prove the same.
13. In view of my above findings, I dismiss F.RA. No, 328/88 and accept F.R.A. No, 274/88 and order dismissal of the rent case. Costs to be borne by the parties.