1. ' This first rent appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the S.R.P.O., 1979) is directed against the judgment, dated 2nd April, 1997 whereby the Ejectment Application No,295 of 1996 seeking ejectment of the appellant was allowed from Shop No,5/A, Block 'P' Hassan Apartment Extension situate on Sub-Plot No,FL-77/P/VI of Plot No,687 Block 13-D, Shah Muhammad Suleman Road, Gulshan-e-Iqbal, Karachi (hereinafter referred to as the demised premises) was allowed by the learned First Rent Controller, Karachi East.
2. ' Briefly stated the appellant was inducted as tenant by the respondent in respect of the demised premises @ Rs,2,300 per month which was to be increased by 10 per cent. The total being Rs,2,530 per month with effect from 1-1-1994 after three years. The ejectment was sought on two grounds namely wilful default in payment of rent at the enhanced rate. It is the case of the respondent that vide agreement, dated 1-11-1991, initially the respondent was let out the demised premises at the rate of Rs,2,300 per month which was to be enhanced by 10% w,e,f, 1-11-1994 i,e, Rs,2,530 payable in advance by 5th of each calender month but allegedly on many occasions the appellant paid rent after the period fixed therein and although as per agreement enhanced rent at the rate of Rs,2,530 was to be paid w,e,f, 1-11-1994, but on one pretext or the other he started paying rent Rs,2,500 from May, 1995. Thus, the appellant was in arrears and committed default. The other ground for ejectment was requirement of personal bone fide use for the respondent No,4. The appellant filed their written statement wherein they denied the alleged wilful default as well as the claim of the respondents for personal bona fide use.
3. ' The parties led their evidence. Affidavit-in-evidence were filed on behalf of the respondents by Muhammad 'Afsar Ali while the appellant also filed his affidavit in evidence and both the witnesses were cross-examined by their respective, learned counsel. The learned trial Court answered both the points in affirmative which resulted in passing of the impugned judgment.
4. ' I heard learned counsel for the parties at length and perused the record.
5. ' Learned counsel for the appellant vehemently urged that the findings of the learned Rent Controller are in disregard of facts, evidence and pleadings. Regarding payment of rent he submitted that the appellant had paid rent for the month of May and June 1997 but no receipt was issued by the landlord. He further submitted that the respondent No,4 is student and he has no experience of any business including the business of furniture which is of technical nature particularly when in this kind of business different chip boards and other related material for making furniture are involved. He also submitted that mere words of the landlord are not sufficient to establish that he had sufficient funds to start the said business. Lastly he submitted that the learned Rent Controller failed to appreciate the case of the appellants in its true and proper perspective.
6. ' Learned counsel for the respondent supported the impugned judgment and submitted that after the expiry of agreement the parties were still bound by the terms and conditions subject to modification particularly with regard to the increase in rent. He also referred to the evidence led by the parties to show that the appellant admitted most of the claim of the respondent in cross- examination.
7. ' I have given due consideration to the respective submissions of the learned counsel for the parties and have also gone through the case law cited by them before the learned Rent Controller.
8. ' The relationship of landlord and tenant between the parties is admitted so also the terms and conditions of the tenancy agreement. The appellant was supposed to pay the rent Rs,2,530 per month from November, 1994 but he paid rent 0 Rs,2,500 per month from November, 1994 to April, 1995 (six months) and this has not been explained at all in the written statement or in the affidavit- in-evidenced as to why less amount was paid. The plea of default has been fully proved by the respondent as the evidence of the respondent No,4 has remained unshaken in cross-examination and it is consistent with the rent application. So far the appellant is concerned; it would be relevant to reproduce the following piece of evidence which is material on the question of default: "It is correct to suggest that I have not tendered the rent for the month of July 1996 prior to deposit the same in Court."
9. ' The terms and conditions of the original agreement were not repugnant to the S.R.P.O., 1979, therefore, the same shall continue to operate. The learned Rent Controller has dealt with each piece of evidence regarding the alleged default and has rightly held as under:-- "I do not agree with the contentions of learned counsel for the opponent that after expiry of tenancy agreement the opponent shall become statutory tenant. The case law cited by learned counsel for the opponent is old view of our own High Court.
10. ' In my view that the terms of the so-called expiry agreement which are not repugnant to the rent law shall continue to operate. For example the rate of rent the mode of payment thereof including its advance payment or deposit etc. My this view is supported by case law reported in PLD 1988 SC 190 and this view of Honourable Supreme Court was also followed by our High Court in Dr. Wasif Ahmed Jalali's case reported in 1996 M LD 1733.
11. ' It appears that during cross-examination of the opponent, he has submitted that he has no proof regarding payment of monthly rent for the period of May and June, 1996. The opponent failed to mention the specific date on which the rent of the same period was allegedly paid to the applicants and to whom applicant, it was allegedly paid. It is an admitted position between the parties that the applicants have continuously been issuing the valid rent receipt to the opponent after accepting rent from the opponent. The applicant, No,4 has denied to have received the rent for the same period. Rent receipts (Exhs. 0/3 to 0/20) produced by the opponent does speak that the opponent used to pay the rent from month to month for which valid receipts were issued by the applicants. Admittedly no witness was examined by the opponent to prove the payment of monthly rent of May and June 1996. Mere statement of the appellant/tenant that he has paid rent to the applicant/landlady but the receipts were not issued would not be sufficient proof of the payment when there has been no other corroborative piece of evidence in support of the said statement. Law has imposed an obligation upon the tenant to make payment of rent in a particular mode and if that mode is not followed the person who has failed to follow the law has to suffer.
12. Reliance can be placed on judgment reported in PLD 1982 SC 465 and 1986 MLD 1237.
13. ' In the instant case the opponent has failed to prove payment of monthly rent of May and June, 1996 to the applicant as he has failed to examine any corroborative piece of evidence.
14. ' From the pleadings it appears that the opponent has deposited rent for the month of May and June, 1996 in the Court in M.R.C. No,320 of 1996 under protest as such I would like to see whether the opponent has deposited rent in due time before the Court. As I have already held that in spite of mode of payment, rate of rent including advance payment of deposit shall alive as such in this instant case as per tenancy agreement the opponent is liable to pay monthly rent in advance by 5th of each English Calender month. In my humble view rent from the month of May became due on 5th May, 1996 and the opponent has a grace period of 15 days. It means that the opponent can pay or tender the rent for'the month of May upto 20th May, 1996 and so also from the month of June 1996, he can pay the same upto 20th June, 1996. Admittedly the opponent has no proof regarding payment of monthly rent for the months of May and June, 1996. The opponent deposited monthly rent w,e,f, ' May, 1996 in M.R.C. No,320 of 1996 on 13-6-1996 which is after about 38 days from the date when rent for the month of May, 1996 became due as such the opponent has committed wilful default in payment of monthly rent from the month of May 1996.
15. ' I have also gone through rent receipt (Exhs.0/3 to 0/20) and it appears that the opponent never paid the rent in time as per tenancy agreement. I could not understand that how a negligent person became so vigilant that he paid the rent for the month of May and June before time and he also offered the rent for the month of July, which was refused by the applicant and he deposited the same in Court on 13-6-1996.
16. ' For the foregoing reasons, I have come to a definite conclusion that the opponent has failed to prove affirmatively the payment of rent for month of May and June, 1996 to the applicants and the applicants have not issued rent receipt to him. In my humble view, the opponent ought to have deposited the rent for the same period on or before 20-5-1996 as per clause (1) of 'Tenancy- agreement' (Exh.B.) because the rent is payable in advance by 5th of each English calender month and tenant has available 15 days grace period. In my view, the opponent has committed wilful and deliberate default in payment of rent for the month of May and June, 1996.
(3) The learned counsel for the applicants during arguments indicated that in para. (9) and prayer clause of Miscellaneous Rent Application No,320 of 1996 (Exh.0/21) the opponent sought permission to deposit the rent at the rate of Rs,2,500 per month and he has been depositing at same rate.
17. Court Deposit Slips (Exhs.0/22 to 0/26) are evident for the same. However, the opponent is liable to deposit the same at the rate of Rs,2,530 per month as provided in clause (1) of 'Tenancy Agreement'. Thus, the opponent has also committed default in payment of rent subsequently to filing ejectment case at the agreed monthly rent.
18. ' On the other hand the learned counsel for opponent has contended that since the applicants had been accepting the rent at Rs,2,500 per month the opponent is justified in depositing at the same rate. He contended that parties have altered rate of rent by their conduct. He contended that it cannot be said that the opponent has committed default subsequent to filing ejectment case.
19. ' Since the applicants lave specifically stated the rent at Rs,2,530 per month in their ejectment case in view of clause (1) of Tenancy Agreement, 'as to why the opponent has been depositing the rent at lesser rate. There appears no reason for doing so. It is well-settled law that the default subsequent to filing ejectment case would be considered. I am not hesitated in holding that the opponent has also committed wilful default subsequent to filing ejectment case as he has violated the ' Tenancy Agreement'. My this view is also supported by 1989 CLC 34 and 1989 CLC 1116.
20. ' For the foregoing reasons my answer on point No,1 is, therefore, being in affirmative."
21. ' It would be relevant to note that the appellant claimed that he deposited the rent in M.R.C. No,.320 of 1996 but there is no explanation as to why the rent was not paid or tendered as required under section 10 of S.R.P.O., 1979.
22. So far the second point is concerned, the burden was on the landlord to prove it. The evidence of the respondent No,4 that he is a student and jobless has gone unrebutted. It has come in the evidence that the respondents have separate funds to set up furniture business in the demised premises. It is not essential that the respondent No,4 should possess experience of the proposed business. The argument of the learned counsel for the appellant on this point including the alleged acceptance of "Pugree" is devoid of any force.
23. ' The upshot of the above discussion is that finding no merit in this appeal it is dismissed, with costs.
24. The appellant is directed to hand over vacant possession of the demised premises to the respondents within ninety (90) days subject to the payment of rent according to law.