1. ' Appellant Wali Muhammad has called in question his eviction ordered from the premises in litigation by Ilnd Senior Civil Judge and Rent Controller, Karachi (Central) in Rent Case No,827/87, under the judgment dated 1_1989.
2. ' Admittedly appellant is tenant of the respondent in the premises in litigation viz. Shop No,7 and a top floor flat both part of a building standing on Plot No,60/E, Block III, Nazimabad Karachi, on monthly rent of Rs,250 for the shop and Rs,175 for the flat. After taking the premises on rent, the appellant started using the shop for business purposes and the flat for residential purposes.
3. ' In his Rent Application No, 827 of 1987, the respondent sought eviction of the appellant on the grounds (i) that he was a persistent defaulter and had failed to pay rent for the premises in question since February 1987 and (ii) that he had sublet the shop to M/s. Shahab Store.
4. ' The rent application was contested by the appellant, who in his written statement pleaded absence of cause of action and challenged the case to be not maintainable. Appellant controverted the grounds taken for his eviction and claimed to have paid Rs,3,000 as `Pugree' while taking the premises on rent in 1970. He claimed to be running his business in the name of Shahab Store in the shop in litigation. Appellant claimed to have paid rent up to the month of February 1987.
5. He alleged that rent for March, 1987, April 1987 and May, 1987 was tendered to the respondent, who refused to accept the same and as such the same was sent to the respondent through money order. Appellant claimed that he had been depositing the rent in Miscellaneous Rent Case No, 656/87 for the period from March, 1987.
6. ' After recording evidence of the parties, learned Rent Controller under the impugned judgment found the issue of subletting in the negative and found the issue of default in the affirmative.
7. Consequently he ordered eviction of the appellant from the premises in litigation within 60 days of the judgment. Hence this appeal Mr. Rashid A. Rizvi learned counsel for the appellant argued that evidence of the respondent was interested, untrustworthy and unreliable. That no independent witness was examined as Rashid Ali was an employee of the respondent. Learned counsel defended right of the respondent to change his business in the demised shop. It was next argued that the respondent had neither pleaded nor established, as to, from what date of each month the tenancy started. It was added that no case for default in payment of rent was made out in presence of the receipts Exh.A/1 to Exh.A/6 issued by the respondent. Respondent was alleged to have written incorrect dates in the receipt Exh. A/2 to Exh. A/6--controverting the ground of default, learned counsel for the appellant took stand that rent for March, 1987 to May 1987 was sent to the respondent by money order but since he did not accept it, hence rent for said months was deposited in Court on 2-7-1987 in Miscellaneous Rent Case No,656 of 1987 filed on 1-7-1987. Learned counsel for the appellant also spoke about the practice of paying rent after intervals in lump sum.
8. He was of the view that the discretion should have been exercised by the Rent Controller in favour of the appellant, when the ground of default in payment of rent was not affirmatively proved. In support learned counsel for the appellant cited the cases of:--
(i) Muhammad Aslam v. Wazir Muhammad (PLD 1985 SC 46).
(ii) Najmuddin v. Zamir Ahmed (PLD 1982 Kar. 188).
(iii) Muhammad Shafi v. Iqbal Ahmed and another (PLD 1965 Lah. 23).
(iv) Mst. Tilyan v. Moula Bux and another (1991 CLC 1729).
(v) Associated Sales Agencies, Karachi v. Standard Insurance Company Limited 1985 CLC 2419.
(v) Yaqoob Dasso v. Mst. Amtul Bari (1985 MLD 1151).
9. ' Mr. Mushtaq A. Memon learned counsel for the respondent argued that the tenancy between the parties commenced from 19th of each calendar month. That the respondent in his cross- examination was not questioned if the tenancy commenced from a date other than 19th of each month. Learned counsel for the respondent pointed out that the receipts Exh.A/3, Exh.A/5 and Exh.A/6 supported the contention that the tenancy commenced on 19th of each calendar month.
10. He wanted receipt Exh.A/3 to be taken for the period till 13-2-1987. Reference was made to Article 73 of Qanun-e-Shahadat (section 62 of Evidence Act), about non-proof of the money order. It was as lastly argued that a case of default in payment of rent at least for June 1987 was made out if not for remaining months, because of late deposit of the tame in Court. In support learned counsel cited the cases of:--
(i) Haji Muhammad Mehar Ellahi v. M/s. Mandviwalla Motor Co. And others (1985 CLC 2155).
(ii) Mst. Maqbool Jan and another v. Begum Nargis Jan and another (1968 SCMR 111).
(iii) Mst. Taiyaba Khatoon v. Muhammad Fareeduddin (PLD 1971 Kar. 747).
(iv) Shahriyar Ali Patudi and others v. M/s. Decora Furnishers (PLD 1985 Kar. 47).
(v) Syed Khadim Ali Shah Bokhari v. Pakistan Burmah Shell Ltd. (1986 CLC 1487).
11. ' In respect of the ground of subletting, respondent Tajamul Hussain stated in his affidavit that the appellant, who used to sell edible oil and ghee in the shop in litigation had given up his business and had sought employment in a plastic factory at Korangi and had unlawfully sublet said shop to M/s. Shahab Store a different party. Respondent did not elaborate further. His witness Rashid Ali claimed to have learnt from the shopkeepers in the area that the appellant had sublet the shop to M/s. Shahab Store and had started some other work. Rashid Ali added that under directions of his mentor viz. The respondent he chased the appellant and found that he was doing the work of manufacturing of small plastic items in an plot near Bilal Colony where he was joined by his sons.
12. There is material contradiction in this evidence about the appellant working in a plastic factory or having set up an independent manufacturing concern. In either cases subletting of the shop in litigation is not established, as a person can run his business in a shop as well as carry out some manufacturing concern with help of his sons. Rashid Ali admitted that he was employee of the respondent and he used to receive rent from the appellant. Evidence of the respondent was silent about M/s. Shahab Store being a partnership firm or simply a name of the business being run in the shop. There is no evidence about charging of any rent by the appellant from M/s. Shahab Store.
13. As against this the appellant in his affidavit denied having sublet the disputed shop to M/s. Shahab Store or having joined any service. His witness Yasin stated in his affidavit that he was running business in the disputed shop in the name and style of M/s. Shahab Store. Yasin admitted in his cross-examination that the appellant was known to him and was Gujrati like him. He replied in the affirmative to a suggestion that the appellant was running a business of Ghee and oil in the disputed shop. He added that Shahab Store belonged to the appellant. The respondent has attempted to create an impression that M/s. Shahab Store was an independent concern, with or without the appellant. No such evidence was led. Respondent has not been able to make out if there was change in status of his tenant. Hence the case of Haji Muhammad Mehar Ellahi 1985 CLC 2155 cited on his behalf does not help him. In said case the original tenant had been taken over by a limited company and this amounted to change in status of tenant, as held. In his evidence respondent Tajamul Hussain did not state if the appellant had surrendered possession of the disputed shop in favour of a third party.
14. ' In the case of Associated Sales Agencies, Karachi (1985 CLC 2419) the landlord seeking eviction of his tenant could not establish that the tenant had ceased to occupy premises or recovered any rent from the sub-tenants and the ground of subletting was held to have not been proved.In the case of Mrs. Tooba Taliby and another v. Sultan Lakhdir and another (1984 MLD 74) the view taken was that for establishing sub-tenancy it is necessary to prove that the tenant has parted with the possession and has created an interest in the estate. In the case of Yaqoob Dasoo 1985 MLD 1151 the view taken was that mere parting with possession was different from subletting. In said case the landlady seeking eviction of her tenant failed to establish as to when the premises were sublet and in what manner possession was parted by the tenant and she was held to have failed to establish subletting. Nothing of that sort has been proved in the instant case. Consequently no exception can be taken to the negative finding by the Rent Controller on the ground of subletting .
15. ' In his affidavit respondent Tajamul Hussain alleged that since February 1987 the appellant had failed/neglected to pay the monthly rent which was payable in advance on 19th of each month. In his rent application the respondent did not state if the monthly rent was payable in advance on 19th of each month. In his cross-examination the respondent admitted his signature on the rent receipt ExhA/1 produced through him. Under receipt Exh.A/1 payment of Rs,1,500 on 15-6-1982 by the appellant as rent for the period 1-1-1982 to 30-6-1982 has been acknowledged. In respect of rent receipts Exh.A/2 and Exh.A/3 the respondent stated that the same were issued by his P.S. Rent receipts ExhA/4 dated 15-7-1984 ExhA/5 dated 19-8-1984 and ExhA/6 dated 10-12-1984 were produced during cross-examination of respondent's witness Rashid Ali through him. He admitted in cross-examination that the receipt Exh.A/4 was in respect of the period 13-3-1984 to 13-6-1984, that the receipt Exh.A/5 was issued for 18-6-1984 to 18-4-1984 (mistyped for 18-8-1984) and that the receipt ExhA/6 was issued for the period 18-9-1984 to 18-12-1984. Rashid Ali contradicted the respondent by saying that the appellant used to pay the rent from 13th of each month. He admitted that the rent receipts ExhA/5 and ExhA/6 were issued by him and that inadvertently in the receipt ExhA/5 a date was mentioned as 18-6-1984 instead of 13-4-84 inadvertently. There is thus confusion about the date of commencement of each month's tenacy as per respondent's evidence. Contents of the rent receipt Exh.A/1 dated 15-64982 were not challenged either by the respondent or by Rashid Ali. None of them said that the dates 1-1-1982 to 30-6-1982 were written, in the receipt ExhA/1, inadvertently, for some other dates. In this situation the tenancy between the parties appears to be commencing from 1st of each calendar month and ending on last day of each month.
16. ' Besides making claim about payment of Rs,3,000 to the respondent as "Pugri" appellant Wall Muhammad in his affidavit said that he had paid rent up to the month of February 1987. Elaborating further the appellant said that in the rent receipts Exh.A/3 to A/6 the Rent Controller had wrongly mentioned date of rent due to the 18th of each month instead of 1st of each English calendar month. Appellant has no documentary proof about having paid to the respondent Rs,3,000 as "Pugri", as admitted by, him in his cross-examination. Appellant has been good enough to produce rent receipts which suggest that he has paid rent till 18-2-1987. The disputed period for which proof about payment of rent was required is from February 1987 till 30-6-1987 as the rent case was filed in July 1987. There is no documentary proof about payment of rent for the disputed period. By stating in his affidavit that rent was not paid to him since February 1987, the respondent has discharged the initial burden of proof. In the case of Allah Din v. Habib PLD 1982 SC 465 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 but it must be appreciated that non-payment of tent 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."
17. On his part the appellant has not been able to substantiate payment of rent for the. Disputed period or at least for February 1987. His allegation that rent for March, 1987 to May 1987 was tendered to the respondent, who refused to accept the same, although mentioned in his affidavit, was not proved through any witness. There is no documentary evidence to support version of the appellant that rent for March 1987 to May 1987 was sent to the respondent by money order. Photo copies of the returned money order forms, shown to have been produced, were not produced. The appellant therefore failed to prove that he had sent rent for March, 1987 to May 1987 by money order, to the respondent. In the circumstances the ground of default was proved.
18. ' Under receipts ExhA/1 and Exh.A/2 rent for six months each was paid. Under receipts ExhA/3 to A/6 rent for three months each was paid. Practice of receiving rent in lump sum by the landlord, furnished sufficient justification for exercising discretion in an ejectment application against the landlord, as per Abdul Aziz v. Abdul Ghani (1986 SCMR 1857). But in M/s. Tar Muhammad Janoo & v.
19. Tahir Ali and others (1981 SCMR 93) it was observed that mere fact that a tenant had made it a habit not to pay rent regularly every month, with the landlord having tolerated the default for some time by accepting the rent .Paid at irregular intervals, cannot in any way be deemed to have established a practice. Practice of payment of accumulated rent was not pleaded in the written statement. Hence such practice even if established, does not place the appellant in an advantageous position.
20. ' It was argued on behalf of -the appellant that even if default in payment of rent was established the Rent Controller should have exercised the discretion in favour of the 'respondent. In this respect the view taken in the case of Najamuddin (PLD 1982 Kar. 188) was that under the provisions contained in section 13(2) of W.P. Urban Rent Restriction Ordinance the Controller is not bound to order eviction in every case in which default in payment of rent has been proved and that the Cont.
21. Roller has ample discretion, which he has to exercise after taking into consideration all the factors.
22. Reliance was also placed on case of Muhammad Shafi PLD 1965 Lah. 23 where it was held that under section 13(2) of W.P. Urban Rent Restriction Ordinance eviction of the tenant on the application of a landlord on the ground for non-payment of rent and other eventualities as enumerated in sub-clauses (i) to (vi) of that section is a matter of discretion with the Controller, as suggested by the language of the relevant provisions, as against the provisions contained in subsection (3) of section 13 of the said Ordinance. On the other side the view taken in the case of Mst. Taiyaba Khatoon (PLD 1971 Kar. 747) was that where rent has not been paid or tendered, in terms of clauses (1) of subsection (2) of section 13 of W.P. Urban Rent Restriction Ordinance, the Controller cannot excuse failure. In the case of Shahriyar All Patudi and others (PLD 1985 Kar. 47) the view taken was that the Rent Controller has been conferred a discretion to refuse ejectment in cases where default has been committed but such discretion has to be, exercised judicially and not arbitrarily on whims and caprices. Any contumacious conduct or lack of bona fide on part of the tenant may disentitle hint to ask for such discretionary relief. In the case of Syed Khadim Ali Shah Bokhari (1986 CLC 1487) the view taken was that where there is no conclusive evidence to establish a clear cut default or the tenant has taken positive steps for payment of rent and due to reasons beyond his control it is delayed, the discretion may be exercised in favour of the tenant, but exercise of such discretion depends upon the facts and circumstances of each case, which may differ from each other, and it has to be exercised on recognised judicial principles and should not be arbitrary, perverse, capricious and hypothetical. In the instant case no special circumstances have been pleaded or proved to entitle the appellant to the discretion being exercised in his favour, for his being excused from ejectment in spite of his being proved as a defaulter in payment of rent for not one month but for four months.
23. ' Remaining authorities cited on behalf of the appellant do not help him. In the case of Yaqoob Dasoo (1985 MLD 1151) the landlady admittedly had with her a sum equal to rent for four months and she failed to explain the nature of such deposit and such deposit was treated as advance rent.
24. In the present case, claim about payment of "Pugri" is not proved. In the case of Mst. Tilyan (1991 CLC 1729) the documentary evidence and tenant's statement showed that the tenant had paid rent to the landlord up to a certain date and then deposited the tame in Court after refusal by the landlord to accept the rent sent to him through money order and the view taken was that default was not proved. In the present case there was no documentary evidence about sending of the money order and its refusal or about offer of rent for March, 1987 to May, 1987.
25. ' For the foregoing reasons the impugned order is maintained but the appellant is given a period of three months subject to payment of rent to surrender peaceful possession of the premises in litigation in favour of the respondent. In default he would be evicted by force without being given prior notice. The appeal stands decided in the aforesaid terms with no order as to costs.