1. ' By this common judgment I intend to dispose of these two appeals.
2. ' Briefly the facts are that the present respondent being one of the co-owners in the property bearing No,T.L.1/18 situate in Tahilram Quarters, Nishat Road, Karachi had filed the ejectment cases against the present appellants on the ground of wilful default in payment of monthly rent, impairing value and utility of the premises in dispute and personal bona fide requirement. The case of the respondent is that appellant Sheikh Muhammad Sher is in occupation of one godown in the said building at monthly rent of Rs,45 and that he had defaulted in payment of rent from May, 1972 to July, 1979 while the appellant Babo Khan is in occupation of a godown at the same monthly rent and that he had defaulted in payment of rent from July 1967 to July 1979 other grounds being causing damage to the property and impairing the value and utility of the same and requirement for personal need. The two appellants contested the rent cases. Their case is that they have paid the rent up to November 1972 and thereafter the rent was sent by money order which was declined by the present respondent and, therefore, they started depositing the rent in Court from 6-3-1973. It is further pleaded by the appellants that no ejectment can be sought on the basis of time-barred rent and that since they have already been depositing rent in Court when the rent case was filed, the default, if any, is only of technical nature and would not entail any penalty. The appellants also took the plea that they were not served due notice under section 13-A of then applicable West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, relationship of landlord and tenant did not exist between parties. On these pleadings of the parties the trial Court had settled four issues of which issue No,3 relates to impairment of the utility and value of the premises in dispute and was not pressed while the first two issues pertaining to the existence of relationship and default were answered in favour of the landlord while Issue No,4 was answered against the landlord. Consequently the rent case was allowed directing the ejectment of the present appellants. Being aggrieved the appellants have preferred these appeals.
3. ' At earlier request of the learned counsel for the parties these appeals were directed to be heard at the same time as they involved same premises and common points of law and fact. The respondent had filed his affidavit-in evidence in each case and that of his brother Saifuddin. He also produced certain documents and was cross-examined. As against this in the case in F.RA.
4. No,622/1987 the appellant filed his own affidavit-in-evidence, produced certain documents and was cross-examined while in the case in F.RA. No,632/1987 the appellant filed affidavit-in-evidence of his son Muhammad Abbas, who also produced certain documents and was cross-examined.
5. I have heard learned counsel for the parties. Mr. S.M. Afzal, learned counsel for the appellant in the first case has submitted that this building was originally owned by one Hassan Ali, who had inducted the present appellant as tenant in the said building. This Hassan Ali died in the year 1961 leaving behind three sons, namely, Tahir Ali, Saifuddin and Asghar Ali and two daughters. It is also submitted that after the death of Hassan Ali one of his sons, namely, Tahir Ali used to collect the rent. Accordingly the present appellants had by their conduct accepted the heirs of deceased Hassan Ali to be the owners of the building and in such circumstances there was no need of serving any notice under section 13-A of the then applicable West Pakistan Urban Rent Restriction Ordinance, 1959 as the relationship, thus, stood established between the parties. It is not the case of the appellants that Tahir All was not one of the owners of the said building or that he was not their landlord. The present respondent Asghar Ali being one of the owners of the said building cannot be said to have received the ownership subsequently from Tahir Ali so as to call for the application of section 13-A of the abovesaid Ordinance. Accordingly I am of the view that the relationship of landlord and tenant did exist between the parties. However, it may be added that Muhammad Abbas son of appellant Babo Khan in his cross-examination was shown a notice sent by the said Tahir All to all the tenants on 12-3-1968 informing them that he had transferred his share to his two minor children by way of gift and that in future the rent will be collected by the present respondent on behalf of all the heirs. It has been admitted by Muhammad Abbas that this notice bears his father's signatures which are similar to that on the written statement. In these circumstances, I am inclined to uphold the fmdings of the Rent Controller to the effect that the relationship of landlord and tenant did exist between the parties.
6. ' Now, I take up the other crucial issues in the case pertaining to the default. In the case of appellant Sheikh Muhammad Sher his learned counsel has submitted that admittedly the rent has been paid by the appellant till 1-4-1972 as per receipt produced as Exh.7-D and that thereafter the rent was sent through money order, dated 2-1-1973. On this very fact it appears that rent for the period May to December would have fallen in default unless explained otherwise. The learned counsel for the appellant has in the first instance submitted that he has paid the taxes to Excise and Taxation Department and that he is entitled to adjust the same against rent. In support of his contention he has placed reliance on the case of Haji Khuda Bux v. Muhammad Anwar 1982 CLC 1006. There is no cavil about this legal proposition but the question here is whether the said taxes have been paid and if so for what period and whether any effort was made by the opponent to intimate the landlord or require the landlord to make such payment. In the present case there is nothing on the record to show if any such approach was made to the landlord before making such payment.
7. There is unsigned copy of letter on record which is dated 30-8-1972 to the effect that the appellant has paid a sum of Rs,137.50 on 10-5-1972 towards property tax which is adjusted against the rent for the month of May, June and July, 1972. This letter has not even been authenticated by the appellant himself by putting his signature or initial thereon. There is also nothing on the record to show if this letter was received by the appellant or said Tahir All to whom it is addressed. There is another letter dated 24th October, 1972 on the record which is original duly signed by present appellant. This letter has been placed on record by the appellant with his own affidavit. If this letter was ever sent to the said Tahir Ali then it is very surprising to note that the original is being placed on record by the appellant himself. This fact itself shows that this letter was not despatched to the said Tahir Ali.
8. However, respondent has been shown these two letters who has denied any knowledge of the same. The receipt pertaining to the payment to Government with regard to the property tax has also been placed on record which pertains to the year 1975/76 and is inconsistent with the contention of the appellant. As regards the money order sent by the appellant it may be observed that only one money order was sent admittedly on 2-1-1973. Although there is nothing on the money order coupon to show if the same was refused by the respondent as it does not carry any such endorsement from postal authorities. Even if this be accepted then also this money order has been sent in January, 1973 and there is no other material on record to explain if any attempt was made to tender the rent to the landlord during the period May to December, 1972 which is eight (8) months. Mr. S.M. Afzal, learned counsel for the appellant has argued that there should not only be a default but there should be an element to show that default is wilful. He has placed reliance on case-law in this respect. Now, as stated about the default for eight months has gone unexplained.
9. In these circumstances, I am inclined to maintain the findings of the Rent Controller on this issue also. As regards the other question that no action can be brought on the basis of time-barred default, Mr. Khalilur Rahman, Advocate for the respondent has relied on the case of Pervaiz Akhtar v. Additional District Judge, Rawalpindi PLD 1990 SC 681, wherein their Lordships were pleased to observe that time-barred rent would not preclude a landlord from enforcing his right for eviction of tenant on the ground of default.
10. ' In the case of appellant Babo Khan it may be observed that default claimed is for the period July 1967 to July 1979. The three receipts of rent which are placed on record are dated 25-1-1964, 7-12- 1965 and 23-6-1967. There is nothing on the record to show if any rent was tendered by the present appellant after the last-mentioned receipt till 30-12-1972 when the said money order is said to have been sent to the respondent. Babo Khan himself avoided to give evidence in Court in support of his contentions although he had himself signed and verified his written statement. In the normal course the obvious inference that could have been drawn from this conduct of the appellant is that if he had appeared in the Court and submitted to the test in cross-examination, the same would have gone against him. However, his son Muhammad Abbas has admitted that the notice dated 12-3-1968 bears signature of his father, the appellant. This witness of the appellant has not been able to prove if any rent was paid after this notice of 1968 was received by his father till the rent was deposited in Court on 6-3-1973. He has, of course, stated that he had sent the rent through money order on 13-12-1972 and such money order coupon has been placed on record but even this money order coupon does not bear any initial or seal of the Postal Department nor it bears any endorsement as to the effect, if the same was refused. Admittedly thereafter the rent was deposited in Court for the period July 1972 to March, 1973 on 6-3-1973 but it has not been explained if the previous rent was paid. The learned counsel has submitted that it was admitted that rent prior to July 1972 had been paid. A perusal of the cross-examination of the respondent and his witness would show that no such question was put to them in cross-examination but it appears that the witness was asked only with regard to rent due after July, 1972. The principle of law is that debtor is to seek the creditor and that onus to prove the rent to have been paid is on the tenant.
11. Accordingly it was for the appellant to have shown that he had paid the rent since after the notice of 1968 till rent was deposited in the Court. In this view of the matter, I do not find any reason to condone such default and disagree with the findings of the Rent Controller.
12. ' The upshot of the above discussion is that the two appeals are dismissed. The appellant will hand over the vacant possession to the respondent within sixty (60) days from the date of this order.