1. The appellant Mst. Mahjabeen has filed this First Rent Appeal challenging the order of the Additional Controller of Rent, Clifton Cantonment, Karachi, whereby the application under section 15 filed by the respondent landlord Muhammad Imtaiz A.I for the ejectment of appellant was allowed and she was ordered to vacate the premises in dispute and hand over the possession thereof to the landlord within 35 days.
2. The facts of the case in short, are that the appellant was inducted as tenant by the landlord in a residential flat No.21-D, 3rd floor, 10th Commercial Street, Phase-5, Defence Housing Authority Karachi, at a monthly rent of Rs.4,000 per month under an agreement of tenancy. The tenancy appears to have started sometimes in the year 1988. However, there are two agreements on record, the last one is dated 1-4-1992 for the period of 11 months. The relationship of landlord and tenant and the quantum of monthly rent is not in dispute.
3. The landlord filed a rent application under section 17 of the Cantonment Rent Restriction Act, 1963 on 5-1-1994 and contended that the tenant had committed default in payment of rent from 1-1- 1993 and has, therefore, incurred the liability of being ejected from the disputed premises. , In her written statement the tenant claimed that the rent was never paid from month to month. Instead, the rent collectors used to collect the rent on behalf of the landlord in lump-sum, sometimes for a period of 6 months and sometimes for one year. It was admitted position that the rent for the period 1-1-1993 to December, 1993 was not received by the landlord but it was claimed that for this period the rent was offered to the rent collectors but they declined to receive the same. However, the tenant had deposited the rent in the month of April, 1994 in a miscellaneous rent case. It was claimed that the default had not been committed as there was practice to receive the rent in lump sum and secondly the rent was offered to the rent collectors, who had refused to accept the same.
4. The learned Rent Controller in his order framed the following issues:- '(1) Whether the opponent had committed default in payment of rent for the demised premises from 1-1-1993?
(2) What was the mode of payment of monthly rent of the premises in case?
(3) What should the order be?"
5. The landlord in evidence filed the affidavit of his attorney Sabilur Rehman Awan, who was cross- examined by the counsel for the tenant. From the side of the tenant also the affidavit of her attorney Dr. Saleem Ahmed was filed, who was cross-examined by the learned counsel for the landlord. The learned Rent Controller, after appreciating the evidence of the parties, came to the conclusion that the tenant had committed default in paying the rent for the period January, 1993 to February, 1994 as the said rent was deposited in the month of March, 1994 after filing of the rent application.
6. The learned Rent Controller did not find proof of the fact that there was an arrangement of payment of rent in lump sum between the parties and that the terms of the agreement were to the effect that the rent was to be paid from month to month and even dates for payment were mentioned in the agreement itself. Consequently, an order of ejectment was passed.
7. The learned counsel for the appellant-tenant in support of this appeal reiterated the same contention, which was raised before the learned Rent Controller and insisted that since the rent in the past was paid for 6 months at a time to the landlord, and he had taken no exception to it, it may be considered that such was an arrangement between the parties.
8. I have given due consideration to all the arguments advanced by the learned counsel and also minutely scrutinized the evidence led by the parties.
9. The tenancy agreement dated 1-4-1992 is an admitted document between the parties. Para. 5 of the said agreement is reproduced hereunder:-- "5. That the tenant shall pay the agreed rent month by month to the landlord without fail', failing which in payment of rent continuously for two months shall be liable for agreement without any notice. "
10. The terms of the agreement as reproduced above, clearly show that the intention of the parties at the time of entering into the agreement of tenancy was that the rent was payable from month to month and not in lump sum. However, when the tenant has taken a plea that in spite of such condition, there was an arrangement between him and the landlord that the rent will be payable periodically after 6 months or sometimes after one year, it was incumbent on the tenant to prove this arrangement through independent evidence. The burden to prove this fact was on the tenant and he had to discharge the same with some reliable evidence. The learned counsel for the appellant-tenant has relied on the circumstance of payment of the past rent evidenced by the receipts on record. No doubt, the receipts, which have been placed on record in the Court of the Rent Controller, do show that the tenant had paid rent sometimes for 6 months at a time and sometimes for a year. But these receipts show advance payment, which in itself belies the contention of the learned counsel for the tenant that the rent was payable periodically in lump sum on expiry of 6 months or 12 months. If some weight is given to the circumstantial evidence, then the natural conclusion should be that -the tenant should have paid the advance rent in the month of January, 1993 and should not have waited for 6 months or one year for the rent collector to receive the rent from him. The second argument of the learned counsel for the appellant was that the tenant had offered the rent for the month of January, February, 1993 and onwards but, the same was not accepted by the rent collectors of the landlord. This argument is not supported by evidence on record as no cogent evidence has been laid to prove this fact. Had the rent been refused by any of the rent collectors of the landlord, the legal requirement on the part of the tenant was to send the same through money-order, but it is an admitted position that the tenant did not send any money-order to the landlord, There is also no explanation as to why the tenant waited up to the month of March, 1994 to deposit the rent for the past more than 12 months in a miscellaneous rent case. The explanation that, the tenant was under the impression that the landlord will receive the rent in lump sum, has already been found unsatisfactory as the circumstances did not prove such arrangement between the parties. Therefore, the default in payment of rent is very clear.
11. The learned counsel for the tenant also made a feeble attempt to raise an objection that since the property in dispute was situated in Defence Housing Authority and the land of entire Defence Housing Authority belonged to the Government, there was an exception under which the rent laws were not applicable to such properties. This was an incorrect argument and the learned Rent Controller has decided this objection as a preliminary objection in his judgment by holding that Cantonment Rent Restriction Act was very much applicable. The property in dispute is a building and not the land which may belong to the Central Government. The building belonged to the landlord, who had rented out the same to the appellant-tenant and the Authority on this point was PLD 1966 (W.P.) Peshawar 159.
12. No other ground attacking the judgment of the Rent Controller was pressed, which may be worth mentioning here. Under these circumstances, this appeal fails and the judgment of the Rent Controller is maintained. This First Rent Appeal is, therefore, dismissed with costs. However, it is directed that the appellant shall vacate the premises in dispute within 60 days' time from today.