1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 10-2-1993 passed by V Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No,826/1991, Syed Zoha v. Feroz Khan whereby ejectment application filed by the respondent/landlord was allowed and appellant/tenant was directed to hand over the vacant possession within three months to the respondent from the date of the impugned judgment.
2. ' Brief facts of the case are that respondent/landlord filed an application for ejectment under section 15 of the Rent Ordinance against the appellant/tenant in respect of ground floor of Property No,143/3, Sharfabad, Karachi-East which was on rent at the monthly rate of Rs,1,700 per month excluding electricity and Sui-gas charges since 1980 on the ground that the appellant/tenant has failed to pay rent to him from January, 1990 till November, 1991. The appellant/tenant filed written statement stating therein that the property in question belonged to the wife of the respondent on whose behalf the latter was collecting rent from the appellant/tenant even during her lifetime and that he has paid rent of August, 1991 at the agreed rate of rent of Rs,1,700 per month but the respondent/landlord made an enhanced demand of Rs,5,000 per month as rent instead. Of Rs,1,700 per month therefore he deposited rent from the month of September, 1991 in MRC No,686/91 where he has been depositing rent regularly and further that the respondent/landlord has been collecting rent from the appellant/tenant at his own convenience and whenever respondent made such demand from him, the appellant paid him rent immediately therefore the appellant was not defaulter in the payment of rent. On the pleadings of the parties, learned Rent Controller settled the following issues:
(i) Whether the opponent has committed a wilful and deliberate default in payment of rent?
(ii) What should the order, be?
3. ' The respondent/landlord filed his affidavit-in-evidence and closed his side so also the appellant/tenant filed his affidavit-in-evidence and closed his side. Both the parties were cross- examined.
4. ' After recording the evidence of the parties as said above and hearing the learned counsel for parties, learned Rent Controller answered issue No,1 in affirmative and ordered the eviction of the appellant/tenant as per impugned judgment.
5. ' I have heard learned counsel for appellant and the respondent in person and perused the R&P of the case and the case-law cited.
6. ' Mr. Arif Bilal Sherwani, learned counsel for appellant has argued that the finding of learned Rent Controller as to the default in payment of rent was erroneous and not based on proper appreciation of evidence on record and the case-law, so also the cases cited in the judgement were distinguishable to the facts of the instant case. He has placed reliance upon 1986 CLC 1280, 1990 CLC 1218, 1991 M LD 651, 1048 and PLD 1985 Kar. 741 in support of his contentions.
7. ' The respondent in person has argued that the appellant/tenant has not paid him rent since January, 1990 and that if he would take oath on Holy Qur'an that he has made payments, he would not press his claim for his ejectment. He has further argued that if he would have been dishonest then he could have said that appellant/tenant had not paid rent even prior to January, 1990 because there was no evidence with the appellant to disprove his statement.
8. ' The respondent/landlord in the ejectment application has said that appellant/tenant has not paid him rent from January, 1990 till November, 1991 at the rate of Rs,1,700 per month and the said statement has been reiterated by him in his affidavit-in-evidence. Besides the respondent has stated in the affidavit-hi-evidence that he has been issuing receipts on plain paper to the appellant/tenant whenever he paid rent.. The appellant/tenant in his written statement has stated that he has paid rent till August, 1991 to the respondent/landlord and from September, 1991 he has deposited rent regularly with the Controller in MRC No,686/91 and that the respondent/landlord never gave him rent receipt for the rent payment which he made. The appellant/tenant has reiterated his statement in the counter-affidavit stating that he has paid rent to the respondent/landlord till August, 1991 and was never issued rent receipt and thereafter he refused to increase rent from Rs,1,700 to Rs,5,000 therefore he deposited rent in MRC No,790/91 as per Annexure 0/1.
9. ' The respondent in the cross has stated that: "It is not correct to suggest that I do not use to give receipts to my tenants. It is correct that I have not produced counterfoil of receipts before this Court. Voluntarily says that I approached the opponent to sign the rent agreement but he refused to, hence I have not received (should be given) him receipt. I have issued receipts for two months and after that I have not issued the receipts. The opponent is my tenant since January 1980, but he has failed to pay rent since January, 1990 hence filed present application in December, 1991."
10. ' The appellant in the cross-examination has stated that: "Before and after the death of Mst. Hajra, I used to pay the rent to her husband Syed Zoha. It may be correct that Mst. Hajra has expired in February, 1989. It is correct that I have not mentioned in my present affidavit that when the applicant has asked me for enhancement of the rent amount. I have offered the applicant to increase the rate of rent from Rs,1,700 per month to Rs,2,000 per month but have not mentioned this in my affidavit. It is correct that I do not go to the house of applicant for payment of rent amount. I used to pay the rent to the applicant Zoha Sahib as landlord. It is correct that I have no documentary proof that landlord has ever refused to receive the rent. I used to deposit the rent in Miscellaneous Rent Case No,790/91 from 27-11-1991. It is correct that in Suit No,1682/91 filed by me, applicant in his objections has stated that the plaintiff (opponent) was defaulter since January, 1990. I am already on oath and not willing to take another special oath. It is correct that I have not sent rent amount through money order. It is a fact that I have not deposited the rent in the Court since 1990 till today."
11. ' Section 10 of the Rent Ordinance runs:-- "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) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate.
(4) The written acknowledgement, 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 Controllers on the commencement of this Ordinance."
12. Under the abovesaid section only three modes of payment of rent to the landlord have been provided; (1) rent be paid to the landlord; (ii) be sent A through postal money order, and (iii) be deposited with the Rent Controller within whose jurisdiction premises is situated. In the instant case the appellant/tenant has been paying rent to the respondent/landlord without receipt from 1980 and since then there has been demand of enhancement of rent by the respondent but the latter did not state about the non-payment of rent by the appellant for the prior period to January, 1990 till November, 1991 and the respondent filed ejectment application on 11-12-1991. The appellant has admitted that he never gave any notice to the respondent that former was not being issued rent receipts. The appellant has not produced any evidence in support of his statement that he offered rent for the month of September, 1991 at Rs,1,700 per month but it was refused. On the contrary, appellant's statement that he offered enhanced rate of rent of Rs,2,000 is falsified by the fact that when the appellant has never been to the respondent for payment of rent then how he would have made such offer. Besides, he did not state this fact of making offer of Rs,2,000 in the written statement. The appellant has not even stated that he has made such offer of Rs,2,000 per month as rent to the respondent when he came personally to him. It does not appeal to me that when the appellant would pay rent to the respondent for the month of August, 1991 and latter would tell the appellant that he would not accept less than Rs,5,000 as monthly rent and would also at the same time receive Rs,1,700 rent for August, 1991. It is also settled law that demand of enhanced rate of rent would not absolve the tenant to tender the agreed rent and the tenant would be bound to make payment to the landlord within time at the same rate. It is strange that all of sudden, on alleged refusal to accept the agreed rent by the respondent, the appellant started making deposit of rent in the office of Rent Controller that also for the month of September and October, 1991 as per photo copies of receipts dated 20-11-1991 and 30-10-1991 respectively in the name of deceased Mst.
13. Hajra Khatoon when the appellant knew as per admission in cross-examination that she expired in February, 1989 and further that even during the lifetime of landlady, the appellant was making payment of rent to the present respondent, the husband of landlady. The deposit of rent in the name of dead person in the circumstances of the case, would not be due tender of rent in the eye of law. Reference is made to Qadri Brothers and Workshop v. Masood Hussain Antria (1991 CLC 1042). Testimony of the respondent in the instant case is confident inspiring, reliable and appeared to be straightforward and honest as to his statement that the appellant did not pay rent to him from January, 1990 till D November, 1991. Mere fact that the respondent did not issue rent receipts would not mean that it should be presumed that the appellant/tenant has made a payment from January, 1990 to August, 1991 to the respondent when on oath he has denied receipt of payment of rent. In case the appellant/tenant could apprehend that the respondent/landlord might seek his ejectment in the month of October, 1991 whereby he deposited rent with the Controller then why he did not apprehend the same earlier when he was not being issued rent receipts by the respondent considering that dispute about enhancement of rent was there between the parties since long. In absence of reliable and satisfactory evidence in the circumstances of the present case, the testimony of the appellant/tenant cannot be said to be sufficient to prove the payment of rent having been made till August, 1991 to the respondent/landlord. The appellant/tenant should not have paid rent without obtaining rent receipt or without any other documentary proof of payment of rent and in case rent receipt was not issued on the first occasion then the rent should have been sent by money order or should have deposited in the Court but this was not done therefore the appellant/tenant cannot escape the liability and consequences as laid down under the rent laws.
14. The appellant/tenant has not examined any other witness to corroborate his statement that rent was paid by him from January, 1990 to August, 1991 but he was not issued receipt. The defence which has been taken by the appellant if allowed to succeed it would perpetuate the wrong as in every case tenant could take this plea of making payments to the landlord without having receipt with him and thereby flout the provision of section 10 of the Rent Ordinance which has been provided in the Rent Ordinance to safeguard the rights of the both parties. It has come in evidence that the respondent was making demand for enhancement of rent since long but yet the appellant has been making payment of rent without getting, receipt, if it was so he should have been cautions and should have sent rent through postal money order, or deposited it with the Controller long before January, 1990 but he did not do so. Now mere his word would not be sufficient to believe him that he has paid rent up to August, 1991. Reference is made to Jabar Ahmad v. Abida Ismail (PLD 1987 Kar. 280) wherein learned Judge in Chamber observed: "That if the tenant does not protest on the refusal of landlord to issue receipts and keeps quiet on account of confidence that he reposes in the landlord then he has to thank himself for his conduct.
15. The presumption in such a case would be that the tenant had not paid rent."
16. ' Accordingly, the contention of the learned counsel for appellant has no merit and substance. Now there remains case-law cited by the learned counsel for appellant. The first case in Mst. Faiyazi Begum (1986 CLC 1280) where the landlord had stated that he has been issuing rent receipts regularly to the tenant which fact was denied by the latter therefore onus was held to be upon the landlord to establish that such receipts were issued as and when the occasion arose: But in the instant case the landlord has himself admitted that he had only issued two receipts that too on plain paper to the appellant/tenant and thereafter he did not issue receipts as the latter did not sign the tenancy agreement and so far other tenants, respondent stated that he has been issuing rent receipts to them. Appellant also did not produce the other tenants of the respondent to prove his statement that they too were not being issued receipts and that the appellant paid rent up to August, 1992 but he was not issued rent receipts, therefore, the facts of the cited case were distinguishable to the facts of the instant case. The next case cited is Fasih Hashmi (1990 CLC 1218) wherein learned Judge in Chamber held that where the tenant has pleaded payment of rent regularly to the landlord but for which no rent receipt was issued and the veracity of the tenant could not be started in the cross-examination and the tenant was supported by one witness who stated that the landlord never issued rent receipt to any of his tenants after receipt of the rent from them which fact proved that the landlord had failed to rebut the evidence of tenant that rent was paid for specified period. The facts of the instant case are different to the case cited by the learned counsel for appellant. There is no other evidence from the side of appellant to support the statement of the tenant/appellant that the other tenants paid rent to the respondent but they too were not issued receipts and the appellant paid rent till August, 1992 but no rent receipt was issued to the former. On the contrary in the instant case the respondent/landlord has frankly admitted to have not issued receipt except the two rent receipts on plain paper. In the case of Fazal Hussain (1991 M LD 651) the landlord had admitted the receipt of certain amounts from the tenant in advance which could have been adjusted, towards the monthly rent and further that landlord suppressed the fact that previously he had filed rent case for eviction therefore the facts of the cited case were different to the facts of the instant case. In Jamshed Baig's case (1991 M LD 1048) the tenant pleaded that landlord never used to issue rent receipts could not find support from the record therefore his eviction was ordered therefore the said case cited supported the case of the respondents.
17. ' In Habib Ahmad's case (PLD 1985 Kar. 741) the learned Judge in Chamber held that as the landlord did not care to issue rent receipt in compliance to the mandatory requirement of law, therefore, he could not insist the tenant to prove the payment by normal practice by producing the rent receipts. The facts of the cited case are different and also distinguishable to the facts of the instant case as in that case the testimony of the tenant was found to be reliable and trustworthy whereas in this case testimony of the respondent has been found to be reliable and trustworthy as to his statement about the non-receipt of the payment of rent for the stated period.
18. In view of the evidence on record it has been proved by the respondent/lanldord that rent from January, 1990 till August, 1991 was not paid/tendered by the appellant/tenant and the rent for the months of September and October, 1991 was deposited in the name of dead person would not be due tender in the eye of law in the circumstances of the case, therefore, the appellant was defaulter within the meaning of section 15(2)(ii) of the Rent Ordinance. Impugned judgment is legal and based on proper appreciation of evidence and the law, therefore, the same is maintained and the appeal has no merit and substance hence the same is dismissed with no order as to costs with the direction to the appellant to hand over the vacant possession to the respondent within 60 days subject to the condition that he would deposit the rent for the said period with the Rent Controller.