1. ' Appellant Shah Nawaz Faridi has assailed an order dated 13-9-1989 passed by 1st Senior Civil Judge and Rent Controller, Karachi East directing eviction of the appellant from the premises in litigation, under section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be mentioned as the Ordinance).
2. ' Admittedly the appellant is in possession of the shop in litigation viz. No,5 out of the six shops with a mosque, constructed on Plot No,778-A, Deh Thano Malir City, by Dr. Abdus Samad son of Hilaluddin. Said shop was rented out to the appellant by respondent Sirajul Masajid on monthly rent of Rs,125, under a Tenancy Agreement dated 1-6-1973. The rent was later on increased to Rs,150 p.m.
3. ' In his Rent Application No,474 of 1985, the respondent prayed for eviction of the appellant from the shop in litigation on the grounds that the appellant had defaulted in payment of rent since March, 1984 and had not maintained the shop in good condition.
4. ' Rent case was contested by the appellant, who in his written statement challenged maintainability of the rent application, and controverted the grounds taken for his eviction.
5. Appellant claimed to have maintained the house in litigation in good condition without committing any act, which could impair look, value and utility of the shop. While denying the allegation of being defaulter in payment of rent, the appellant took plea that the monthly rent was being adjusted towards an amount of Rs,28,239 spent by him and by tenants of Shops Nos.2, 3 and 4 on repairs and reconstruction necessitated by detachment of a portion of the shops, which was taken away by NLC in June/July 1985, for the purpose of extension of National Highway. It was added that after mutual settlement between the respondent and its different tenants including the appellant, joint fund of Rs,36,000 was raised from which Rs,24,000 were spent on repairs and reconstruction of the portions affected, Rs,3,749 were paid towards electric dues and Rs,298 were paid as estimate charges of reconnection of electricity including testing fee of Rs,50. Adjustment of monthly rent towards said expenses, was said to be in accordance with the settlement agreed to by the respondent.
6. ' After recording evidence of the parties, learned trial Court under the impugned judgment dated 13-9-1989 accepted the application and ordered eviction of the appellant within one month. Hence this appeal.
7. ' Mr. Waqar Hussain, learned counsel for the appellant, argued that the issue of default was not proved as the rent due was being adjusted towards expenditure on repairs, reconstruction and electricity. It was next argued that the respondent was bound to honour his commitment about adjustment of the amount spent on reconstruction, repairs and other items, from future rent.
8. Learned counsel referred to affidavit in evidence of Dr. Abdul Hameed, where it was admitted that in the year 1983, the Government of Sindh had schemed out to expand the National Highway and that all the tenants of the respondent voluntarily agreed to surrender the required small front portion of their shops, in the interest of nation and get the same repaired. It was next argued that the respondent had failed to prove the issue of default, because he had not denied the fact that the appellant and his other tenants had spent money on reconstruction/renovation of the demised premises.
9. ' Mr. Khurshid Ahmad Qureshi, learned counsel for the respondent argued that the appellant had not controverted the allegation, about not having paid the rent from March, 1984 onwards and in view of this, the allegation that the appellant had defaulted in payment of rent stood proved.
10. Learned counsel for the respondent referred to the legal notice dated 29-10-1984 sent by him to the appellant. It was added that even after receiving such notice, the appellant had not written to the respondent that he was adjusting the monthly rent towards any expenditure incurred by him and by other tenants of the respondent on account of repairs or renovation of the disputed shops. It was next argued that there was absolutely no settlement that the repair charges would be adjusted from the rent. Learned counsel referred to para. 13 of the affidavit of Abdul Hameed, which was not challenged in the cross-examination. It was further argued that the appellant and other tenants were compensated for the repairs because no rent was charged from them for the period June, 1983 to September, 1983 (both months included) although they had agreed that any amount spent on repairs would be treated as donation to the respondent mosque. Reference was made in this respect to para. 6 of the affidavit of Waseem Khan, which was not challenged in cross- examination. Reliance was placed on the statement of accounts, produced by the respondent, showing payment of rent in respect of the shop in litigation. It was next argued that the appellant and other tenants had admitted that there was no written agreement or settlement to the effect that the amount spent on repairs and renovation would be adjusted from the rent. It was also argued that the appellant had not obtained permission from the Rent Controller under section 12 of the Ordinance and as such he could not claim adjustment of rent. In support, learned counsel for the respondent cited the cases of Chaudhry Rustam Ali v. Mst. Jamila Akhtar 1985 SCMR 810, (2)
11. Syed Abdul Jabbar v. Syed Mohsin Abbas 1986 CLC 2007 and (3) Naimuddin Siddiqui v. S.M.
12. Ahmed Habibur Rchman 1983 CLC 1378.
13. ' On the point of default, the respondent examined Dr. Abdul Hamced (Exh.4) and Muhammad Wasim Khan (Exh.5). Dr. Abdul Hamced in his affidavit (Exh.4) while conceding that a portion of the disputed shop was surrendered for expansion of National Highway, alleged that no rent was paid for March, 1984 onwards. Para.5 of his affidavit shows that after surrender of part of the shop in litigation, the same required immediate repairs. Dr. Abdul Hameed added that the appellant agreed to get the premises repaired at his own cost from his own pocket, as donation to the mosque and that he agreed and consented to this. In para. 7 of his affidavit, Dr. Abdul Hameed admitted that affected portions of the shops were repaired and electric installations were also made by the appellant and other tenants, from their own pocket as donation to the mosque and that after completion of repairing work, the appellant resumed his business in the disputed shop and started paying monthly rent at the same rate and continued to pay the same upto February, 1984. Dr. Abdul Hameed also admitted that the K.E.S.C. Issued incorrect bills, and hence payment of the bills was not made, and the matter was pending with K.E.S.C. For correction, and in the meantime the appellant and other tenants requested that they be allowed to obtain electric connection, and that they would pay the arrears of electric bill as their business was being affected. In his cross-examination, Dr. Abdul Hameed stated that there was only one electric meter, for supply of electricity to the mosque and its six shops including the disputed shop. He admitted that electric bill for May 1983 amounting to Rs,3,700.42 was paid by the appellant and other tenants.
14. He admitted that the appellant and other tenants also paid Rs,298 for reconnection of electricity.
15. He admitted that portion of the building, in 1983, was demolished because of construction of National Highway and it was repaired. Dr. Abdul Hameed further admitted that some times he received the accumulated rent in lump sum from the appellant. Muhammad Wasim Khan is Cashier of the respondent and he supported Dr. Abdul Hameed on all points. In his cross- examination, Muhammad Wasim stated that the appellant was tenant since 1967 under a tenancy agreement. He added that the rent was being paid monthwise but there were instances when the appellant requested that he was unable to pay the rent for a particular month and that the same be collected in next month. He admitted that the appellant himself carried out the alteration/addition from his own pocket, after surrender of land, which was 4 to 6 feet in front of every shop. He contradicted Dr. Abdul Hameed by saying that every tenant had separate electric meter. He admitted that electric bill in the name of the respondent amounting to Rs,3,742 was due and payable by 23-6-1983 but the same was paid by the appellant for restoration of electricity, as there was dispute about payment of F.A.C. Between the respondent and K.E.S.C. He admitted payment of Rs,298 by the appellant for reconnection of electricity.
16. ' As against this evidence, the appellant filed his affidavit (Exh.6) and the affidavit of Ali Muhammad (Exh.7). In both the affidavits, it was stated that there was acquisition of a part of the shops of the respondent for the purpose of extension of National Highway and that there was settlement/agreement that the expenditure on reconstruction/renovation would be made by the appellant and other tenants. In his cross-examination, the appellant admitted that from June, 1983 to September, 1983 he did not pay the rent as it was agreed that expenses will be adjusted from the rent. Appellant also admitted that he had stopped paying rent due to adjustment of expenses from the rent. He further admitted that since March, 1984 he was not paying rent due to adjustment of rent towards expenditure. Appellant also admitted that he had nothing in writing for adjustment of expenditure from rent and that no notice was given to the respondent Trust for adjustment. All these admissions are very important and they by themselves prove case of the respondent and shatter case of the appellant.
17. The evidence on record shows that the appellant jointly with other tenants of the respondent had spent some amount on the repairs/renovation of the disputed shop and other shops of the respondent in the same building, but there is no convincing evidence to show if the respondent had agreed that the future monthly rent would be adjusted towards the amount spent by the appellant and other tenants on renovation/repairs. In the case of Rustam Ali 1985 SCMR 810, it was held that plea of adjustment on account of repair was not tenable for want of permission and that the ground of default was established. In the case of Naimuddin 1983 CLC 1378 the allegation in the rent application showed that half of the rent for a certain month had not been paid and was illegally adjusted towards repair charges incurred without consent of the landlord or permission of the Controller and the view taken by a learned Single Judge of this Court was, that the default was clear from the circumstances of the case. In the case of Syed Abdul Jabbar 1986 CLC 2007, it was held that the burden entirely lies upon the tenant to show that the amounts required to be adjusted were paid with explicit or implied consent of the landlord. It was also held that cost incurred on repair of the rented premises could only be adjusted from rent if repair was made by the tenant with permission of the Rent Controller and where the tenants made repairs of the rented premises at their own will or necessity without consent of the landlord and adjusted cost of repairs from rent of premises, the default stood established in the circumstances. In view of this legal position, the appellant has no case, to claim adjustment of the expenditure on repairs or reconstruction from the monthly rent to claim adjustment of the amount paid for electric clues and for reconnection, from the monthly. Rent, even if his right to recover the amount in question through a Civil Court is conceded. But there can be no adjustment of the expenditure from the monthly rent, in the way desired by the appellant, as this would be contrary to the provisions contained by section 12 of the Ordinance.
18. ' For the foregoing reasons, I dismiss this appeal with no order as to costs. The appellant is given a period of three months to vacate the premises.