1. This appeal under section 21 of the Sindh Rented Premises Ordinance is filed by the appellant against the order, dated 31-7-1986 passed by the learned I Senior Civil Judge and Rent Controller, Hyderabad whereby, he has ordered eviction of the appellant from the Shop No-1 in C.S. No.F/1149/29 Station Road, Hyderabad on the ground of default in payment of rent for five months i.e. June, 1985 to October, 1985.
2. Briefly, inter alia, the facts of the present litigation are that the shop in question was let out initially by the respondent to the appellant on a monthly rent of Rs.300 under an agreement and thereafter by subsequent agreements as it is alleged the rent was enhanced to Rs.400 p.m. And thereafter to Rs.500 p.m. With effect from July, 1989. The last agreement signed between the landlord and the tenant was to the effect from 10-11-1982 for a period of 11 months only. The agreement also shows that the appellant had deposited Rs.1,200 with the respondent. The so-called last agreement is dated 10-11-1982. According to the said agreement the rent was payable in advance i.e. On 1st of every calendar month by the appellant. It is claimed that the appellant committed default in payment of rent since June, 1985 and at the time of the filing of the application under section 15 of the Sindh Rented Premises Ordinance, 1979 he was in arrears of rent of Rs.2,500 for five months i.e. From June, 1985 to October, 1985. As such it was alleged that the appellant committed default for five months, therefore, he was liable to be ejected.
3. The appellant after service of the notice filed his written statement in which he admitted the tenancy of the respondent but submitted that shop was given to him on rent by the father of respondent at the rate of Rs.200 p.m. With the deposit of Rs.1,200 but the respondent was receiving Rs.600 p.m. As rent but was issuing rent receipt at the rate of Rs.500 p.m. The defence of the appellant in the written statement was that he used to offer monthly rent in time but the respondent himself used to receive monthly rent after six months and sometimes for one year, as such he was not a defaulter in the payment of rent but as per direction of the respondent rent of the disputed shop was given periodically, as such, the appellant was not liable for the ejectment.
4. The landlord i.e. The respondent and the tenant/appellant filed their respective affidavits in evidence before the learned Rent Controller and were cross-examined.
5. The following were the points for determination framed by the learned Rent Controller:---
(1) Whether the opponent has committed default since June, 1985 up to October, 1985?
(2) What should the order be?
6. After filing of the affidavit in evidence and cross-examination of both the parties the learned Rent Controller directed the appellant to hand over the vacant physical possession of the disputed shop to the respondent within two months from the date of the impugned judgment as such allowed the application for ejectment. Being aggrieved by the said judgment the appellant/tenant has filed this appeal before this Court.
7. Muhammad Umer, who was applicant/landlord in Rent Case No.352 of 1985 filed his affidavit in which he has reiterated the facts of the case stated by him in the rent application. Alongwith his affidavit in evidence he has produced the agreement in original which agreement is reproduced as under:--- "RENT AGREEMENT
(1) And whereas the Party No. l has let out on lease and the Party No.2 has taken on lease a shop constructed on ground floor of the Building No.F/1149/29 at the rate of Rs.500 (rupees five hundred) only per month.
(2) And whereas the Party No.2 shall pay the monthly rent in advance before the 1st of every calendar month.
(3) And whereas the tenancy will commence from 10-11-1982 would be for 11 months. After expiry of tenancy period the tenant will hand over vacant physical possession of the rented premises to the landlord.
(4) And whereas party No.2 has deposited Rs.1,200 (rupees one thousand two hundred) only with Party No.1 for the guarantee to observe the terms and conditions as agreed, but the amount of Rs.1,200 (rupees one thousand two hundred) only will be forfeited, in case Party No. 2 fails to deliver vacant physical possession after expiry of 11 months or fails to pay the full amount of the monthly rent as agreed.
(5) That the lessee shall not sublet the rented premises or any portion thereof to any one.
(6) That the landlord shall be entitled for enhancement of rent up to 10% per annum of the existing rent after expiry of every three years from the date of commencement of tenancy, if the tenancy is renewed for further period by landlord.
(7) That the Party No.2, will not make any addition and alteration without the written permission of the lessor. Any addition or alteration done by the lessee without the express permission of the lessors, will not bound the lessor in any manner whatsoever.
(8) In witness whereof having accepted the above condition with free will, both the parties of the First and Second Part have set their hands and seal before the witnesses. On the day of 10th November, 1982.
8. (Sd.) Lessor(Sd.) Leasee Muhammad UmarMirza Muhammad Muqeem s/o Haji Muhammad Ishaqs/o Wahid Beg.
9. WITNESSES:
1. (Sd.)
10. Muhammad Siddiq Hirabad, Hyderabad.
2. (Sd.) Murad Hussain C/89, Barrage Colony, Hyderabad Before me (Sd.)
11. Sub-Divisional Magistrate City Hyderabad. 11-11-1982."
12. The period of this agreement was for eleven months and it was executed on 10th November, 1982 and it expired after the eleven months i.e. 10-10-1983. After that the parties did not execute any agreement. Alongwith his affidavit in evidence the respondent/landlord has produced counterfoils of the receipts from the period 10-9-1983 to 18-6-1985. These receipts show that in the beginning the rent of the disputed premises was Rs.200. Subsequently it went up to Rs.500 p.m. Only the receipt dated 10-9-1983 shows that the landlord/respondent received rent of two months i.e. May and June, 1983. Thereafter all the receipts show that the appellant/tenant paid rent in each and every month. It has not come in evidence whether periodically rent was paid by the tenant i.e. The appellant before the Court though the defence was taken by him that landlord used to collect the rent collectively and not in every month. This is the position which has come on record of the lower Court. The learned Advocate for the appellant contended that amount of Rs,.1,200 was given in advance to the landlord which amount was towards the rent of the months for which the tenant could not deposit the rent and further that after the expiry of the rent agreement it was agreed by the parties that this amount would be deducted if and when the rent could not be deposited by the tenant/respondent.
13. I am afraid, I cannot accept this contention as clause (2) of the rent agreement clearly shows that the tenant was liable to pay the monthly rent in advance before the 1st of every calendar month and para. 4 of the agreement reproduced, as above, shows that amount of Rs.1,200 deposited by the tenant was for guarantee to observe the terms and conditions as agreed in the rent agreement and further that the said amount will be forfeited in case tenant/respondent fails to pay the full amount of the monthly rent to the landlord as agreed in the said agreement.
14. The contention of the learned Advocate for the respondent/landlord is that according to the agreement the rent of every month was payable by the first of every next month. The agreement of rent was expired on 10-10-1983 and thereafter there was no agreement of any kind either in writing or in verbal by the parties as such the tenant/respondent was bound to hand over the vacant possession of the premises to the landlord but he failed to do so as such the landlord was forced to file an application under section 15 of the Sindh Rented Premises Ordinance, 1979 in which it was stated that the tenant has failed to pay rent of the disputed shop for five months as such he was in arrears of the rent amounting to Rs.25,000, as such, liable for ejectment.
15. After going through the entire evidence and agreement and the counterfoils of the receipts I have come to the conclusion that the tenant paid the rent for only two months but on that receipt the warning was given by the respondent/landlord that he should pay the rent regularly for each month as such he was bound to pay the rent of the premises every month regularly. I do not see any rent receipt which shows that the landlord has collected the rent collectively for six months or more at any time. This was false narration of the facts by the tenant/respondent to show that he paid the rent collectively for six months or more, except the one receipt which shows that the rent of two months collective was paid. On the other hand there is admission on the part of the tenant that he has not paid the rent to the respondent from the month of June, 1985 but he has deposited the rent in the Court on the order of the Court but he has deposited the rent since 2-12-1985 which shows that from July, 1985 to November, 1985 no rent was paid by him to the landlord which amounts to his ejectment from the premises in dispute.
16. For the above reasons, I do not see any force in this appeal which is dismissed accordingly. The appellant/tenant is directed to put the respondent landlord in peaceful vacant possession of the