1. ' The appellant has impugned the order dated 16-2-1988 of Vth Senior Civil Judge and Rent Controller (South), Karachi whereby the appellant has been ordered to be evicted from the premises (shop constructed on plot No,S.B.4/63) Won Hoffen Street, Saddar, Karachi (hereinafter known as the disputed premises).
2. ' Facts of the case in brief are that respondent filed an application under section 15 of the Sindh Rented Premises Ordinance and stated that the appellant is his tenant in disputed shop at monthly rent of Rs,35 and was running a Dry Cleaning business and had not paid rent 'since September, 1972. The appellant being a defaulter, was liable to eviction. The appellant filed his written statement and denied the contentions of the respondent that he was defaulter in payment of rent since August 1972. He pleaded that one Dr. Abdul Samad, the son of the respondent used to collect the rent on behalf of his mother (the respondent). Further that, the said Dr. Abdul Samad used to collect accumulated rent. The appellant also pleaded that he paid Rs,300 to Abdul Samad through money order dated 20-6-1975 and another sum of Rs,395 through money order dated 2-2-1976 and Rs,1,300 in cash on 13-9-1978. The case of the appellant further was that he was always ready and willing to pay the monthly rent but the respondent's son Dr. A. Samad always said that amount of Rs,35 per month was a meagre amount which he could not come to collect every month. In June 1982, according to the appellant, he tendered by money order a sum of Rs,2,200, which was in excess of arrears, which amount was refused by Dr. A. Samad. On this, the appellant approached Abdul Samad the rent collector, informing him that he had refused the money order without any reason and that the appellant would deposit the rent in Court. It is also pleaded that on this, the rent collector Dr. A. Samad threatened that if the appellant deposited rent in Court, ejectment application would be filed against him.
3. ' In evidence, Abdul Wajid son and attorney of the respondent, filed his affidavit in evidence and also filed photostat copy of general power of .Attorney. Affidavit in evidence of Dr. A. Samad, the son of the respondent was also filed. They were both cross-examined by the learned Advocate.
4. During examination of respondent's witness Dr. A. Samad, the Advocate for the appellant confronted him with rent receipts dated 22-2-1972 and 18-8-1973 which the witness admitted to have been signed and executed by him. He was also confronted with money order postal receipt, a letter issued by the Post Master showing that money order No, 4638 was paid to the payee on 15-5- 1975. These two documents have been marked as A/5 and A/6. The witness Dr. A. Samad was also confronted with two money order receipts A/7 and A/8 and handwritten receipt showing payment of Rs,1,300 marked A/9. Four money order coupons of various dates alongwith two money order receipts were also shown to this witness but he denied to have refused to receive the said money ordeRs, They are A/10 and A/18.
5. ' The appellant filed his own affidavit in evidence and the affidavit of his employee Ibrahim and they were cross-examined at length by the learned Advocate for the respondent. One Muhammad Shamsuddin Assistant Superintendent of Post Office was also examined by the appellant to show that money orders in question were sent by the appellant but the witness stated that after 18 months: the record of his office is destroyed as per rules and there was no record in his office in connection with the money orders dated 2-5-1975, 2-2-1976 and 15-6-1982. He produced a copy of the Rules showing that the old record is to be destroyed after 18 months.
6. ' The learned Rent Controller determined the following points for consideration:--
(1) Whether the opponent has committed default in payment of rent?
(2) What should the order be?
7. ' On appraisal of evidence the Rent Controller came to the conclusion that the appellant was defaulter since September 1973 and directed his eviction from the shop in question, giving him 60 days time for handing over the pessession.
8. ' The learned Advocate for the appellant has contended that in fact a long practice was established by which Dr. A. Samad, the son and rent collector of the respondent/landlady, used to collect the rent in lump sum and that rent was in fact paid up to 13-9-1978 and there was no default as contended in the eviction application or in evidence. He has also contended that it is not denied in evidence of the respondent that there was no such practice of receiving rent in lump sum. In these circumstances the appellant cannot be held as defaulter. He has placed reliance on Iqbal Yousuf v. Kishwar Jehan (1991 SCMR 864) in support of his above contention but the facts of the case in hand are distinct from the facts in the reported judgment. He next referred to Abdul Aziz v. Abdul Ghani (1986 SCMR 1857) where it was held that where landlord himself adopted practice of receiving arrears of rent in lump sum and such parctice being in vogue from very beginning of tenancy, that rent had not been paid by tenant to the landlord as required under law, then the conduct of the landlord himself was such which furnished sufficient justification to Appellate Court to exercise its discretion against him in dismissing his eviction petition. The learned Advocate then contended that acceptance of rent by the son and rent collector of the respondent periodically, would not tantamount to default in payment of rent. In this respect, he referred to Mst. Naseem Akhtar v. Mst. Bibi Gul Durani and 2 others (PLD 1988 Karachi 372) where it was held that there being practice of collecting rent periodically, no exception can be taken to dismissal of rent application of landlord. The learned counsel has lastly contended that the Rent Controller has not appreciated the conduct of the appellant who had sent three money orders on 15-6-1982 (two money orders for Rs,1,000 each and one money order for Rs,200). By this, the learned Advocate tried to suggest that the appellant was anxious to make payment of arrears of rent accumulated against him but the respondent or her agent refused to accept the same.
9. ' The learned Advocate for the respondent has contended that the appellant, on his own showing, admitted in cross-examination that arrears of rent amounting to Rs,3,850 were lying with him. The rent per month is admittedly Rs,35 and the arrears of such big amount admitted by appellant, clearly makes him defaulter and the order of the Rent Controller is unexceptionable. On the point of default the learned Advocate has referred to Ghulam Nabi v. Muhammad Sachal (1988 CLC 2858) where it was held that the tenant cannot absolve himself of responsibility of paying rent every month as agreed initially in writing, by taking the plea of his having been verbally asked by landlord to pay rent in lump sum and after long intervals. It was also held that where tenant fell into arrears of so many months, no indulgence could be shown in such case of gross negligence.
10. ' I have heard the arguments of learned counsel, perused the evidence and the case-law referred.
11. There is no dispute with regard to the quantum of rent. All that is alleged against the appellant is that he has not paid rent since September, 1972. The appellant's case is that the rent collector of the respondent used to collect rent periodically and in lump sum because the monthly rent of Rs,35 was so meagre that the rent collector desired not to come each month and receive the same. No such practice has been proved by the appellant. On the contrary the record shows that the appellant himself used to go and pay rent to the rent collector and the receipts Annexures A/3 and A/4 would show the payment of Rs,315 and Rs,420 on 22-1-1972 and on 8-8-1973. If the landlady or her agent had refused to receive the rent each month, the appellant/tenant was under an obligation to send the same by money order or deposit it in the office of the Rent Controller which in this case has not been done. On the contrary the money orders sent by him show accumulated amount of Rs,500 and even more. These money orders are shown to have been refused by the respondent's son Abdul Samad who has denied the refusal of the same. Since in cross- examination the respondent admitted that receipt dated 18-8-1973 (Exh. A/4) was issued by him, it establishes that the rent was paid to him up to 18-8-1973. There is no proof of payment of any rent after August 1973 and appellant is a defaulter from September, 1973 onwards and has committed wilful default. Besides, there is an admission of the appellant in cross-examination that an amount of Rs,3,850 being the arrears of rent, are lying with him. Thus, on his own showing, such a big amount of rent is accumulated, which he has not paid. Even after the filing of the rent case the rent has not been paid by him. In these circumstances the findings of the learned Rent Controller are unexceptionable, as the same are based on evidence on record and require no interference. The appeal is accordingly dismissed with no order as to costs. However, the appellant is allowed one month time for vacating the premises in dispute.