' Appellant Niaz Ahmed Elmi has challenged his eviction from the shop in litigation ordered by the IVth Senior Civil Judge and Rent Controller, Hyderabad, in Rent Case No,782 of 1980.
2. Admittedly, the appellant is tenant of the respondent in the shop in litigation bearing No,194/B Unit No, 11 Latifabad, Hyderabad, on the monthly rent of Rs,100 plus electricity charges. The electricity charges, according to the respondent, were Rs,35 per month and according to the appellant, were on the basis of actual electricity consumed at the rate of Re.1 per unit. Admittedly, the appellant had paid rent to the respondent for the period ending November 1979. It is also an admitted position that at one time the appellant was collecting on behalf of the respondent, rent from the neighbouring tenments and was sending the same to the respondent after interval of some months.
3. The respondent filed Rent Case No, 782 for eviction of the appellant from the shop in litigation on two grounds viz. That the appellant had defaulted in payment of rent from December 1979, including electricity charges and that the appellant had committed certain acts whereby the utility and value of the shop had impaired.
4. The rent application was contested by the appellant, who denied both the grounds, alleged against him. The appellant took plea that the rent was being received in lump sum and as such the appellant cannot be termed as a defaulter in payment of rent, even if he had not paid the rent for a particular month, as the discretion was to be exercised in his favour. The appellant claimed to have sent a bank draft of Rs,300 to the respondent on 30-11-1980, but the same was allegedly not acknowledged.
5. After hearing the counsel for the parties the learned Rent Controller under the impugned order dated 27-8-1989 found the ground of default in the affirmative and the other ground in the negative and ordered eviction of the appellant, within 90 days, from the date of the order.
6. Mr. Abdul Hameed Khan, learned counsel for the appellant argued that eviction cannot be ordered unless it was affirmatively proved that there was wilful default in payment of rent. In the present case, according to the learned counsel, there was no wilful default. It was also argued that rent of the shop in litigation and other tenements belonging to the respondent in the locality, was being sent regularly by the appellant to the respondent. The learned counsel for the appellant further argued that a rent agreement was executed between the parties but the same was lying with the respondent, who had not produced it. It was also argued that a bank draft of Rs,300 was sent to the respondent on 30-11-1980. Learned counsel for the appellant claimed that an amount of Rs, 3,210 in respect of electricity charges was paid and the same included the electricity charges payable by the appellant for his shop and as such there was no default in respect of the electricity dues. In support, learned counsel for the appellant cited the cases of Shaikh Abdus Sattar v. Malik Muhammad Afzal and others (PLD 1985 SC 148) and Meharban Ali v. Haji Muhammad Qasim PLD 1976 Lah. 1052).
7. Mr. Raja Khan, learned counsel for the respondent referred to the letters dated 20-9-1980, 27-10- 1980 and 30-11-1980 sent by the respondent to the appellant and argued that there was non- payment of rent for December 1979 and onwards and as such default was proved. It was further argued that the appellant had taken two self-contradictory pleas in his written statement by saying at one place that he was regular in payment of rent and at another place that there was practice of lump sum payment of rent. The plea that the electricity charges were paid, did not appear in the written statement, and such plea was not to be accepted as argued. Learned counsel for the respondent relying on various authorities argued that a tenant who had defaulted in payment of rent cannot avoid order of ejectment by taking a plea that there was practice of lump sum payment of rent. In support learned counsel for the respondent cited the cases of:--
(i) Abdul Rashid v. Saleh Muhammad (1980 SCMR 506).
(ii) M/s. Tar Muhammad Janoo & Co. v. Taher All and others (1981 SCMR 93).
(m) Haji Muhammad Qasim v. Meharban Ali (1983 SCMR 1205).
(iv) MRs, Alima Ahmed v. Amir Ali (PLD 1984 SC 32).
(v) Amir All and others v. M/s. Burma Oil Mills Ltd. (1990 SCMR 1327).
(vi) Mst. Hajiani Aisha and others v. Abdul Waheed (PLD 1989 SC 489).
(vii) Mahboob All V. Abdul Manan and others (1984 CLC 1201).
(viii)Shaikh Muhammad Munir v. Muhammad Ilyas (1986 CLC 93).
(ix) Syed Zahid All v. Syed Muhammad Nasim (1984 CLC 828).
(x) Syed Khadim Hussain Abdi v. Mst. Geti Ara Begum (PLD 1986 Karachi 184).
(xi) Syed Taher All v. S.M. Yousif (1990 ALD 162 (2).
()di) Mst. Koonch Amna and others v. Mst. Zubaida and others (PLD 1983 Kar. 584).
(xiii) Taiyab A. Kapadia v. Agha Ziauddin Barth (1981 CLC 1267).
8. On facts most of the .Things are admitted. It was not claimed by the appellant if he had paid rent for December 1979 onwards. Present rent application was filed on 14-12-1980 and by that date there was default of 10 months. Even if plea of the appellant that electricity charges were paid by him, is accepted, he has given no explanation for non-payment of monthly rent for December 1979 onwards. He has not been able to prove sending of bank draft of Rs,300 to the respondent on 30-11- 1980. The fact that the appellant was collecting rent on behalf of the respondent from other tenants of the respondent, is not of much help to him because such power-of-attorney was later on cancelled. In the case of Shaikh Abdus Sattar (PLD 1985 SC 148), it was held that there is no express procedure prescribed in the statute which the Rent Controller must adopt while dealing with applications of landlords seeking ejectment of their tenants and that the only requirement prescribed in the statute is that ejectment of the tenant should be ordered only if the Rent Controller is 'satisfied' after giving him a reasonable opportunity of showing cause against the application, that this is warranted. It was further held that the word "satisfied" imports the necessity of an enquiry but in holding such enquiry the Rent Controller will not be bound by any particular procedure. In the instant case non-payment of rent for the disputed period is admitted and it did not require any evidence. The evidence was required from the side of the appellant to show that non-payment of rent was not intentional". In the case of Meharban All (PLD 1976 Lahore 1052), the view taken was that if default has been committed by a tenant deliberately then order of ejectment against him should be passed, but in case deliberate default is not proved then it is discretionary with the Controller to pass such order.
9. In his affidavit-in-evidence, respondent Maqbool Ahmed has stated that the appellant had wilfully committed default by stopping payment of rent from December 1979, and that the appellant had failed to pay electricity charges. In his cross-examination, the respondent denied if any draft of Rs,300 was sent to him by registered post on 30-11-1980, but admitted that he had received a letter from the appellant. He admitted that he did not give any notice in writing to the appellant, as to, why he had sent to him the letter without draft. He also admitted in cross that one Baboo had filed case against him for restoration of electricity and that such case was defended on his behalf by the appellant. As against above evidence, appellant Niaz Ahmed, in his affidavit favour was abruptly revoked by the respondent who demanded the rent through notice. Appellant added that he sent bank draft of Rs,300 to the respondent by registered post on 30-11-1980 and the same was delivered to the addressee on 4-12-1980. Appellant further stated that he had paid electricity bills of Rs,3,210 direct to the WAPDA as a huge amount was outstanding against the respondent. This was not stated in the written statement. In the case of Taiyab A. Kepadia (1981 CLC 1267), the view taken was that in the absence of a particular plea in the written statement, the tenant is not entitled to set up a new case at stage of evidence. In his cross-examination the appellant admitted that previously he was attorney of the respondent but such power was cancelled. Appellant admitted in his cross-examination that 8 months' rent was due against him when the case was filed and that he did not file any rent deposit application in the Court. In the circumstances, I agree with learned counsel for the respondent that the appellant is proved to have committed 'wilful default' and the respondent has discharged the burden of proof. In the case of Syed Khadim Hussain Abdi (PLD 1986 Karachi 184), it was held that the burden of proof that the tenant had not paid the rent would be sufficiently discharged by the landlords stating on oath in Court that he had not received the rent.
10; As regards the plea, that the rent was being collected in lump sum, learned counsel for the respondent cited a number of authorities where it was held that mere fact that a tenant made it a habit not to pay rent regularly every month and that landlord tolerated his default for sometime and accepted rent paid at irregular intervals, cannot be deemed to have established a practice of payment of rent whenever tenant pleased. Such practice cannot absolve the tenant from paying the rent every month, as held in the case of M/s. Tar Muhammad Janoo & Co. (1981 SCMR 93), since the appellant has been proved to be a wilful defaulter, the discretion cannot be exercised in his favour, as per the case of Meharban All (PLD 1976 Lah. 1052).
11. For the foregoing reasons, this appeal stands dismissed and the order of ejectment passed against the respondent is maintained but the appellant is given a period of three months to vacate the shop in litigation. A short order in these terms was passed on 22-10-1992 and these are reasons for the same.