1. ' The present appeal is directed against order dated 17-7-1988, passed by the IIIrd Senior Civil Judge, Karachi (East), dismissing Rent Case No,3250 of 1977, renumbered as Rent Case No,1603 of 1985, filed by the appellant against the respondent on the ground of default in payment of rent.
2. ' The tenancy in respect of property, bearing House No,4, Blocks 7 and 8, Karachi Memon Cooperative Housing Society, Karachi was created between the parties under agreement dated 1- 4-1975. The rent was agreed at Rs,1,000 per month. The respondent paid a sum of Rs,12,000 to the appellant being 50% of the advance rent for the period of two years and 50% of the monthly rent i,e, Rs,500 per month was payable every month from 1-4-1975. On expiry of the said two years, the monthly rent of Rs,1,000 became payable from 1-4-1977. According to the appellant, the respondent made payment of the rent during the period April, 1975 up to July, 1976 in cash or by incurring expenses on electric works or payment of taxes as authorised by her, leaving a balance of Rs,147.60 on account of arrears of rent. The respondent also failed to pay Rs,500 per month as stipulated under the agreement from August, 1976 to March, 1977 and after expiry of the two years, he further neglected to pay rent at the rate of Rs,1,000 per month from April, 1977. The respondent in his written statement without specifically denying the averments made in the application, alleged to have made up to date payment till 17-2-1977. According to him, on 17-2-1977, the appellant had executed an agreement of sale in respect of the demised property and thereafter the relationship between the parties came to be governed in terms of the said agreement. The sale was to be concluded after observance of formalities required to be completed by the concerned Cooperative Housing Society and in the meanwhile the respondent was permitted to carry out additions and alterations which he did at a considerable expense. However, the appellant failed to execute the registered sale-deed within the stipulated period and when the respondent called upon her to execute the deed by notice dated 11-6-1917, she denied the execution of agreement of sale. On such denial by the appellant, according to the respondent, he, by way of abundant caution paid rent through cheque dated 1.8-1977 and continued sending the rent by cheques. Subsequently, he came to know that the cheques sent by him to the appellant were not enchased and, therefore, he started depositing rent in Miscellaneous Rent Case from November, 1977. He thus denied having committed any default in payment of rent. It is further disclosed that the appellant filed Suit No,558 of 1977 in this Court for cancellation of the agreement to sell dated 17-2-1977 and the respondent filed Suit No,780 of 1977 for specific performance of the contract.
3. ' The appellant examined her attorney Ataullah Farooqui, who reiterated the contents with regard to the default as disclosed in the Rent Case. The agreement to sell was described as forged document. The suit filed by the appellant was decreed and that of the respondent was dismissed by this Court. The respondent filed his affidavit-in-evidence in which he took up new pleas and claimed to have made total payment of Rs,31,948.40 covering rent from 1-4-1975 to 30-11-1977. The above figure includes the amount of Rs,300, spent on purchase of stamp paper for execution of lease, payment of Rs,7,500 allegedly made by him to the appellant on 28-12-1976 and Rs,1,000 on 27-5-1975, a sum of Rs,4,000 by two cheques dated 14-1-1976 and 30-4-1976 and the amount paid by him on account of meter charges, electricity bill and towards property tax. The above payments were made till 7-5-1977.
4. ' The alleged payments arc belied by the correspondence and other material on record. By letter dated 27-8-1976, which also bears rubber stamp date of 28-12-1976, the appellant acknowledged total receipts of Rs,7,352.30, out of which a sum of Rs,3,500 was paid by cheques of Rs,1,500 and Rs,2,000 respectively, Rs,1,995 spent by the respondent towards electric works and Rs,I,857.40 being property tax paid by him on behalf of the appellant. The respondent was accordingly called upon to pay Rs,147.60 to round the figure up to Rs,7,500 to cover rent till July, 1976. I le was called upon to additionally pay Rs,720 towards water charges and Rs,2,500 on account of rent from August to December, 1976.
5. ' The respondent through his Advocate's notice dated 11-6-1977 called upon the appellant to execute the sale-deed. It was replied through her Advocate's letter dated 16-6-1977, denying the alleged execution of sale agreement and complained that instead of sending Rs,3,367.60, as demanded in letter dated 27-8-1976/28-12.-1976, the respondent had sent cheque dated 11-6-1976 in the sum of Rs,3,074.60, wrongly claiming that the said amount would cover rent till 16-5-1977. It was followed by the respondent's Advocate's rejoinder dated 15-8-1977, enclosing cheque dated 1- 8-1977 in that sum of Rs,2,514. In this letter the respondent has claimed the rent to be due and payable from 17-5-1977 to 30-8-1977, amounting to Rs,3,500, out of which he deducted Rs,986 paid by him on 20-5-1977 on account of property tax. It does not offer any explanation as to in what manner the amount of Rs,3,074.60 covers rent up to 16-5-1977.
6. ' It appears that the appellant did not accept the payments made through the aforesaid two cheques probably for the reason that the payments were not only erratic but were also not made on due dates. Even if the said payments are accepted and so also the payment of Rs,986 made by the respondent is adjusted towards rent, there is no escape from the conclusion that the respondent had committed default in terms of the Sindh Rented Premises Ordinance XVII of 1979, as detailed below.
7. ' As the correspondence shows by 28-12-1976 the appellant had received rent up to July, 1976, short by Rs,147.60. Thereafter the appellant received two cheques dated 11-6-1977 and 1-8-1977 in the sum of Rs,3,074.60 and Rs,2,514 respectively. The respondent is entitled to adjustment of Rs,986, paid by him towards property tax. Thus the total amount to his credit comes to Rs,6,574.60, out of which Rs,147.60 plus Rs,720, being payable by the respondent towards balance of rent for July, 1976 and water charges in terms of the tenancy agreement, respectively are to be deducted leaving balance of Rs,5,707 to be adjusted towards rent from August, 1976.
8. ' The Rent Case was filed on 28-9-1977, on the said date the total rent due was Rs,9,000, Rs,4,000 for the period from August, 1976 to March, 1977 at the rate of Rs,500 per month and Rs,5,000 from April, 1977 to August, 1977 at the rate of Rs,1,000 per month. As against the above amount, the appellant had received Rs,5,707 only, which accounts for rent up to April, 1977 only, leaving balance of Rs,707 with the appellant to the credit of the respondent. The above balance cannot be treated as legal discharge towards payment of rent for May, 1977, being short of the rent due and payable for the said months.
9. ' The learned counsel for the respondent, however, contended that the Court should accept the payment of Rs, 31,948.40 which covers rent up to November, 1997. He was not in a position to satisfy with regard to actual payment of the said amount. However, the circumstances obtaining in the case do not warrant to accept the above plea legally and factually.
10. The plea raised in the affidavit-in-evidence with regard to the aforesaid payment is inconsistent with the averments made in the written statement, according to which, the rent was paid up to 17- 2-1977 and thereafter A the rent was sent by way of abundant caution through cheque dated 1-8- 1977 and further that he continued sending rent by cheques till he came to know on inquiry from the bank that the cheques were not enchased and, therefore, he started depositing rent in Court from November, 1977. The above evidence tendered in the affidavit by the respondent being inconsistent with the written statement is to be overlooked and discarded in view of the established law that any quantum of evidence on a plea not raised in the written statement cannot be looked into.
11. ' The above evidence is belied by the conduct of the respondent. If he had paid rent till November, 1977 by 7-5-1977, he would not have sent cheque dated 11-6-1977 in the sum of Rs,3,074.60 as rent till 16-5-1977 and subsequent cheque dated 1-8-1977, as stated in his Advocate's notice dated 15- 8-1977, towards rent from 17-5-1977 to 30-8-1977 nor he would have continued sending cheques subsequently, as alleged in the written statement.
12. ' The witness of the appellant was not confronted with any document, except receipt dated 28-12- 1976 in the sum of Rs,7,500 allegedly executed by the husband of the appellant. The witness denied the signature of the husband of the appellant on the said receipt. It may be pointed out that the original documents pertaining to payments to KESC and property tax have come from the possession of the appellant. In the cross-examination it was suggested to the respondent that the original receipts of the payments made by the respondent were returned on receiving the payment thereof. Though it was denied by the respondent, it appears to be highly probable that the original receipts were returned either on receiving the payment or adjustment thereof towards rent. Since these payments were not disclosed by the respondent in the written statement nor it was alleged that the different amounts spent or paid by him on behalf of the appellant had remained unadjusted or unpaid, coupled with the fact that the original receipts have come from the possession of the appellant and the fact that the appellant had no opportunity to rebut the disclosures made late in the day in the affidavit-in-evidence for the first time, such payments cannot be accepted and deserve to be discarded, particularly so there being no evidence whatsoever to establish the alleged payments.
13. The learned Rent Controller had accepted the amount disclosed by the respondent in his affidavit- in-evidence to have been made to the appellant, without applying his mind to the material on record. There is no evidence whatsoever on the record to justify acceptance of the said amount.
14. ' It may be pointed out that the record does not show whether the appellant has accepted the cheques of Rs,3,046.60 and Rs,2,514, nonetheless the delivery of the aforesaid cheques having been established on record, the amounts reflected in the said cheques have been calculated towards the rent.
15. Consequently, the finding of the learned Controller is hereby reversed and it is held that the respondent had committed default in payment of rent from May, 1977.
16. ' The above are the reasons for the short order dated 17-5-1993, whereby the appeal was allowed and the respondent with consent was given one year and six months' time to deliver the vacant possession of the demised premises to the appellant and in case he fails to put the appellant in possession on expiry of the said period, the Rent Controller shall issue writ of possession, on filing of the execution application, without any notice to the respondent. The above time was granted to the respondent subject to payment of rent.