1. ' The present appeal has been filed by the appellant tenant challenging the orders passed by First Senior Civil Judge and Rent Controller (Central), Karachi in Rent Case No,1796 of 1981.
2. ' Briefly the facts of the case are that the present respondent is owner of Shop Nos.1 and 2 situate in House No,45, Block-15, Federal 'B' Area, Karachi, hereinafter called the disputed premises while the present appellant is the tenant of the said shops at the rent of Rs,150 per month for each shop thus totalling to Rs,300 per month. The case of the respondent who filed the ejectment case against the appellant is that the quantum of rent was subsequently increased to Rs,200 per month (totalling Rs,400 per month) by mutual consent which the appellant paid up to December, 1980 and has defaulted in payment of rent thereafter. It was also contended by the respondent in the rent case that the appellant did not pay the electricity charges and also sublet the shops without his permission. The appellant filed written objections wherein he denied the above allegations and claimed that the respondent had demanded enhanced rent at the rate of Rs,200 per month which he did not pay and, therefore, the rent case was filed. The appellant also contended that he had paid rent upto the month of March, 1981 and because the respondent refused to accept the rent on account of his demand for enhancement, he deposited the rent in Court of Rent Controller in M.R.C.
3. No,2005 of 1981. Both the parties had filed their respective affidavits-inevidence and produced tenancy agreement. Both parties were cross-examined. The Rent Controller heard the arguments and concluded that the appellant had committed default in payment of rent as alleged while the issue of subletting was answered against the landlord. Thus, the Rent Controller directed the vacant possession of the shops to be handed over to the respondent. Being aggrieved the appellant has preferred this appeal.
4. ' I have heard the learned counsel for the parties and perused the record. The contention of the Advocate for the appellant is that the appellant had paid the rent till the month of March, 1981 and therefore, he is not a defaulter. The learned counsel has also submitted that the rent was paid in the Court of Rent Controller from April, 1981. He has further submitted in the present case that it is an admitted position that no rent receipts were being issued and, therefore, the burden to prove the default would shift on the landlord. He placed reliance on the case of Amin Master v. Abdul Rasheed 1986 CLC 1551. As against this the learned counsel for the respondent has pointed out that the burden is on the tenant to prove that he had tendered the rent. He has also pointed out that the case of the appellant as set out in the written objections is that the landlord had demanded enhancement at the rate of Rs,200 per month for each shop while in affidavit-in-evidence the appellant has stated that the respondent had demanded the rent at Rs,500 per month for each shop. This contradiction is very material and would render evidence of the appellant as untrustworthy. He has also submitted that the appellant deposited the rent in Court only after the rent case was instituted.
5. ' I have considered the above submissions of the learned counsel. As regards the above case of Amin Master v. Abdul Rasheed which has been relied upon by the learned counsel for the appellant, it may be observed that the principle that was laid down in this case by a learned Single Judge of this Court is that where the rent receipts are not issued by the landlord and no documentary evidence to prove the payment of rent is brought on record by the tenant, the evidence of both parties is to be placed in even scales and benefit would go to tenant. It may further be observed that a precedent would only have relevance or binding effect in a case of identical nature. In case there are material differences in the facts of the case in hand and the precedent, the case in hand will have to be considered on the basis of its own facts and circumstances. Keeping this principle in view I would proceed to examine evidence of two parties.
6. The case of the respondent landlord is that the rent of the shops was increased to Rs,200 per month which the appellant paid till December, 1980 and defaulted thereafter. As against this the appellant in his written objections has pleaded that because he did not pay enhanced rent, the landlord refused to accept the rent at the rate of Rs,150 per shop and, therefore, he deposited the rent in Court. However, the appellant himself in his affidavit-in-evidence (paragraph 7) states that the landlord demanded increased rent at the rate of Rs,500 for each shop and it was only when the appellant refused to pay this demanded rent, the landlord became hostile and filed the rent case.
7. It may be observed that no such suggestion has been put to respondent in his cross-examination that he had demanded enhanced rent at the rate of Rs,500 for each shop. All that is said in the cross-examination is only a suggestion in the last line if the respondent would be prepared to withdraw the rent case if the opponent pay him Rs,500 for both the shops. There is yet another material contradiction in paragraph 14 of the affidavit-inevidence of the appellant wherein he states "I say that I had offered and am still prepared to pay Rs,400 per month towards the rent of both the shops to the applicant but the applicant has refused."
8. ' In view of above contradictions the stand of the appellant stands belied. Now in case the appellant had offered Rs,200 per month to the respondent there could be no reason that respondent would have refused the same and filed the rent case as contended in paragraph 6 of the written objections of the appellant. It may also be observed that the present rent case was filed on 19-4-1981 while the rent deposited in the Court of Rent Controller is on 30-4-1981 onwards which is obviously after filing of the rent case. However, no evidence to the effect that the appellant had deposited the rent in Court was produced before the Rent Controller. It is in this Court at the appellate stage that the appellant has filed alongwith memo. Of appeal a certificate from the Court of Rent Controller showing that deposit of rent was being made from 30th April, 1981. This certificate has been placed on record at the appellate stage without moving an application for allowing additional evidence under Order 41, Rule 27, C.P.C. However, even if this be taken into consideration then also the rent having been deposited after institution of the rent case, the burden would be very heavily placed on the appellant to prove his bona fides. The appellant would also be required to prove that before depositing the rent in Court, he had tendered the rent to the respondent as required under section 10 of the Sindh Rented Premises Ordinance, 1979 which reads as under: "10. Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: ' Provided that nothing contained in this section shall apply in the case pending before the Controller on the commencement of this Ordinance."
9. ' The scheme of the above provision shows that in the first instance the tenant has to tender the rent directly to the landlord and the landlord shall issue a receipt acknowledging the same. It is only in case the landlord refuses or avoids to accept the rent, that the rent may be sent to him by postal money order or be deposited with the Rent Controller. The appellant has not placed any corroborative evidence on record to show if he had ever tendered the rent to the respondent. The established principle is that the debtor has to seek the creditor.
10. ' In view of the above discussion I am of the firm opinion that the appellant in the present case miserably failed to show that he had tendered the rent to the respondent and is liable to ejected on account of the default in payment of rent. Accordingly, I maintain the orders of the Rent Controller and dismiss this appeal with no order as to costs. However, the appellant is allowed a period of four (4) months, after the expiry of which he shall hand over the vacant possession to the respondent.