' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Sindh Rented Premises Ordinance, 1979) is directed against the Order, dated 8-8-1996 passed by the learned Senior Civil Judge/IIIrd Rent Controller, Karachi Central, whereby ejectment application of the appellant filed under section 15 of Sindh Rented Premises Ordinance, 1979 was dismissed.
2. The rent application was initiated against Asrar Mohiuddin Siddiqui, who died on 21-3-1995 during pendency of the proceedings (hereinafter referred to as the deceased tenant). In his place the present respondent being the widow of the deceased tenant was impleaded as opponent.
3. The factual background as disclosed in the ejectment application is that the premises bearing No,C-190, Block-10, Federal 'B' Area, Karachi (hereinafter referred to as the demised premises) was let out to Pakistan Steel Mills Corporation, for residential purpose of the deceased tenant (late Asrar Mohiuddin Siddiqui) on monthly rent of Rs,4,950 for a period of 2 years and Rs,1,18,800 were paid on 14-2-1990 being the advance rent. After expiry of two years on or about 14-2-1992 the deceased tenant approached the appellant for permitting him to continue his possession of the demised premises at the same monthly rent with effect from 15-2-1992. He allegedly also agreed to pay the water and conservancy charges and paid Rs,29,700 as advance rent on 15-3-1992 for the period from 15-2-1992 to 14-8-1992. Thereafter, he paid rent up to 14-2-1993 through cheques but from 15- 2-1993 he failed to pay rent amounting to Rs,19,800. Thus, according to the appellant he committed wilful default in the payment of rent.
4. The respondent's late husband contested the matter. In his written statement preliminary legal objections were taken to the effect that the. Appellant having sold the demised premises is no more the owner. Therefore, he was not entitled to file the rent application claiming himself to be the landlord/owner. It was further stated that the respondent is statutory tenant and was not liable to pay rent in advance as claimed by the appellant. It was also averred that after expiry of tenancy agreement executed between the appellant and Pakistan Steel Mills Corporation, the appellant/landlord accepted the deceased tenant as statutory tenant and had also stated realising rent from him "at his own convenience through cheques" which was paid/tendered at the request of the appellant himself. It was denied that the respondent's late husband had agreed to pay water and conservancy charges. The late husband of the respondent also denied having committed willful default in payment of rent as according to him, the appellant in the first instance did not issue any rent receipt and thereafter did not encash the cheque despite verbal and written requests made by her later husband.
5. The appellant filed his affidavit-in-evidence and was cross-examined by the learned counsel for the respondent. The deceased tenant (late husband of the respondent) also filed his affidavit-in- evidence but he could not be cross-examined as he expired thereafter. However, 0/W Saeed Akhtar, Advocate in the capacity of attorney of the respondent filed his affidavit-inevidence and he was cross-examined. Syed Shoib Raza, Senior Assistant of N.D.F.C. And Mehtab Nabi postman from Nazimabad Central Post Office were examined as Court-witnesses.
6. The learned trial Court answered the sole point of wilful default against the appellant-landlord hence this appeal.
7. I heard learned counsel for the parties at length and perused the record as well as the case-law cited by them.
8. Learned counsel for the appellant contended that-- - (i) burden to prove wilful default was on the appellant and through his consistent evidence he has proved that late husband of the respondent committed wilful default;
(ii) relationship of landlord and tenant was defined mala fide although that too has been proved.
Hence on this ground alone the respondent is liable to be ejected;
(iii) respondent's late husband failed to comply with the tentative rent order, therefore, his defence should have been immediately struck off;
(iv) the rent deposited by the respondent in miscellaneous rent application was not a valid deposit as the alleged default had already been committed;
(v) respondent is liable to be effected for not paying water and conservancy charges.
' In support of his submissions, he relied upon the following case-laws: Burden of Proof and Default
(a) Allandin v. Habib PLD 1982 SC 465.
(b) Muhammad Hussain v. Saleh Muhammad 1998 M LD 1115.
(c) Saeed Ahmed v. S. Rais Pervaiz PLD 1997 Kar.
247.
(d) Muhammad Luqman Ahmed v. Munir Ahmad and another 1997 CLC 651.
(e) Naseem Begum v. Mrs. Raeesa Khatoon and 2 others 1997 M LD 1030.
(f) Feroz Khan v. Syed Zohra 1996 CLC 949.
(g) Noman Ahmed v. Mrs. Ghazala Iqbal 1996 M LD 1717.
(h) Mumtaz Ahmad v. Razia Zaheer 1993 CLC 1602.
(i) Abdul Aziz v. Syed Muhammad Afzal Shah 1990 CLC 336.
(j) Muhammad Bhai and 5 others v. Messrs Alia International Enterprises 1990 CLC 711.
(k) Mst. Roshan Habib v. Haji Usman through its 11 Legal Heirs 1987 CLC 1484.
(1) Jalees Ahmed v. Abida Ismail 1987 M LD 114.
(m) Syed Khadim Hussain Abdi v. Mst. Geti Ara Begum PLD 1986 Kar.
184.
Mala fide denial of Landlord--Tenant Relationship.
(a) Ghulam Samadani v. Abdul Hameed 1992 SCM R 1170.
(b) Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) PLD 1992 SC 401.
(c) Akbar Ali Khan Mirza v. The Additional District Judge and others 1989 SCM R 1399.
(d) Province of Punjab through Secretary Eduction and another v. Mufti Abdul Ghani PLD 1985 SC 1.
(e) Muhammad Islam Khan v. Cantonment Board, Kohat 1982 SCM R 1056.
(f) Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCM R 443.
(g) Merajuddin and another v. Kh. Mehboob Elahi and 4 others 1992 CLC 2457.
(h) Sain Muhammad Tufail v. Anjuman-e-Darbar-e-Hussain 1993 M LD 316.
Non-compliance of Tentative Rent Order.
(a) Mst. Akhter Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1.
(b) Zia Ullah Shah v. Syed Riaz Ahmed 1981 SCM R 538.
(c) Mst. Jan Bibi and others v. Azam Khan and another NLR 1990 AC 688.
Invalid Deposit of Rent in Miscellaneous Rent Case.
(a) Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381.
(b) Abdul Rasheed v. Hanifur Rehman 1994 M LD 955.
(c) Munawar Hasan v. Badiul Hasan 1992 CLC 2495.
(d) Jarnshed Baig v. Muhammad Ashique 1991 M LD 1048.
(e) United Bank Ltd. v. Ehasn Ellahi 1989 CLC 287. Non-payment of Water and Conservancy Charges
(a) Messrs Kwality Food Products v. Mst. Sehba Nishat Haq 1991 M LD 1331.
(b) Syed Afroze Ali v. Mutiullah Khan NLR 1991 AC 514.
(c) Dr. Syed Ateeq Ahmed v. Mst. Nargis Jamal 1989 CLC 160. Learned counsel for the respondent submitted that:--
(i) Monthly rent of Rs,4,950 included water and conservancy charges; neither the previous tenant Messrs Pakistan Steel Mills Corporation nor the deceased tenant were liable to pay these charges.
Even these charges were never demanded by the appellant;
(ii) the respondent denied the relationship between him and the appellant as landlord and tenant as the demised premises were sold out;
(iii) the respondent is not a defaulter inasmuch as her late husband regularly paid rent to the appellant through cheques, but the latter did not issue receipt on the pretext that payment through cheques did not require any receipt;
(iv) the appellant did not encash cheques subsequent to 15-2-1993 in spite of repeated oral and written requests by the deceased tenant, therefore, he started depositing rent in Court vide M.R.C.
NG.590 of 1993;
(v) the tentative rent order could not be complied with as there was some error in the said order which was rectified on the application of the respondent then the rent was deposited in time;
(vi) the statement of postman Mehtab Nabi establishes that the appellant avoided malafidely to receive letter of the respondent sent to him through registered post;
(vii) neither in the ejectment application, nor in the affidavit-in-evidence, the appellant/landlord stated that he used to issue receipts against payment of rent. Therefore this plea taken in the evidence was false.
' In support of his above submissions, the leaned counsel relied upon: Mst. Noor Jehan and 3 others v. Piaray Lal 1990 ALD 580, Khursheed Ahmed v. Rahimuddin 1992 ALD 546, Shafiqur Rehman v.
Saeed Ahmed 1991 M LD 1393, Muhammad Shafi v. Mst. Sohra Khatoon 1983 CLC 346, Zohra Begum v.
Pakistan Burmah Shell Ltd. 1984 CLC 2769, Zulfigar Hussain v. Mrs. Tazeen Chaudhry 1986 CLC 393 and Younus Rizwani Sheikh v. Pakistan State Oil Co. Ltd.
9. In the first instance the respondent's predecessor-in-interest (her husband) denied relationship of landlord and tenant between the parties. Although he admitted in the written statement that initially Pakistan Steel Mills was the tenant of the appellant but after two years when he retired from Pakistan Steel Mills, at his request he was accepted as tenant. In this situation I find considerable force in the submission of the learned counsel for the appellant that subsequent denial of relationship of landlord and tenant on the vague plea that the appellant had sold away the demised premises to some one was contumacious and mala fide. It would be relevant to note that A he had filed MRC 590 of 1993 under section 10(3) of Sindh Rented Premises Ordinance, 1979 wherein, in para.1 he stated as follows:-- "(1) That the applicant is the tenant of the opponent in respect of premises No,C-190, Block-10, Federal 'B' Area, Karachi at a monthly rental of Rs,4,950. The tenancy is oral and the applicant is a statutory tenant."
' But in the written statement he took up the following plea: "(a) That the applicant is no more owner/landlord of the premises in question and as per the information of the opponent has sold the premises in question as such he is not entitled to file this case claiming himself to be the owner of the premises in question."
' In para. 4 of his affidavit-in-evidence, he (the deceased tenant) reiterated the same facts.
10. Since during the proceedings the deceased tenant expired and on his behalf his successor Mst.
Majda did not file her own affidavit-in-evidence, but on. Her behalf her nephew and attorney Saeed Akhtar, Advocate filed his affidavit-in-evidence on 3-7-1996. After having given due consideration to the evidence of this attorney, I fined the untrustworthy and unreliable. In para. No,1 he stated "he is well-conversant with the facts of the case. In para. No,5 of his affidavit-in-evidence he stated as follows:-- "That I say that applicant is no more the owner of the premises in question and as per my informantion the applicant has sold the premises in question as such he is not entitled to file this case claiming himself to be the owner of this premises in question."
11. From the above, it is abundantly clear that throughout the stand of the respondent had been inconsistent and contrary to the factual position. On the one hand while submitting the miscellaneous application the respondent's late husband admitted that he was tenant of the appellant but subsequently, during ejectment proceedings throughout the respondent's stand is denial of relationship of landlord and tenant between the parties. In my humble View such as denial was contumacious and mala fide. In view of such a conduct of the tenant, recording of evidence on the other allegations such as default is not required, as has been held by the Honourable Supreme Court in Ghulam Samdani v. A. Hameed 1992 SCM R 1170, and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCM R 443.
12. The next co ntention of the learned counsel for the appellant was that the tentative rent order passed by the learned Rent Controller was not complied with according to which the respondent had to deposit Rs,52,975 as arrears of rent but instead of depositing this amount the respondent deposited only Rs,51,975 as per his own calculation. In my humble view instead of doing so as per his own calculation the respondent should have complied with the tentative rent order as directed and no prejudice at all would have caused to him if he had deposited the tentative rent because he could have claimed adjustment of the difference between the two amounts which was a meager one. In such a situation when there was deliberate noncompliance of the tentative rent order the learned Rent Controller ought to have struck off the defence of the respondent and he should have passed the order of eviction by summary disposal of the case without any further proceedings, in view of the law laid down by the Honourable Supreme Court in Mst. Akhtar Jehan Begum v. Muhammad Azam PLD 1983 SC 1.
13. The next submission of the learned counsel for the appellant was that the rent for the period from 15-2-1993 to 14-6-1993 was not paid to the appellant. Initial burden to prove this allegation was on the appellant. He has discharged this burden by taking consistent stand in his ejectment application, affidavit-in-evidence and cross-examination that the rent for this period was not paid to him. The law is well-settled that if the landlord states on oath that he has not received rent for the disputed period, he has discharged the burden of proof and the same was shifted to the tenant. (See Allandin v. Habib PLD 1982 SC 465). In his written statement as well as in the affidavit- in-evidence of attorney of the respondent it is alleged that the applicant never issued any rent receipt and this has also been believed by the learned Rent Controller. It was the duty of the respondent's late husband to have obtained the rent receipts. It is unimaginable that the deceased being an educated person and a lawyer by profession would pay rent without obtaining the receipt. There is nothing in the evidence to indicate that he ever protested for the alleged non- issuance of rent receipts. Even otherwise the respondent was required to act strictly in accordance with the provisions contained in section 10(3) of Sindh Rented Premises Ordinance, 1979. The evidence on record clearly indicates that no attempt at all was made to deposit rent through money orders. Therefore deposit of rent in M.R.C. Was improper' and invalid. Likewise, it is an admitted position that water and conservancy charges were not paid by the respondent on the plea that these charges were included in the monthly rent. There is no tenancy agreement between the parties whereby the landlord was supposed to make payment of these charges. Thus, in this situation since water and conservancy charges are included in the definition of rent as defined in section 2(i) and in the absence of any evidence to the contrary, it was the liability of the respondent to pay the said charges and the failure to do so proved that; her late husband was also a defaulter on this score as well. See Dr. Syed Atique Ahmed v. Mst. Nargis Jamal 1989 CLC 160.
14. It was also contended by the learned counsel for the appellant that learned Rent Controller erroneously placed reliance on counterfoils of cheques without signature of the landlord as proof of payment by the. Respondent. In this regard suffice it to observe that counterfoils without signature of the landlord are unworthy of credit because such document can easily be manipulated by a person who is in possession of the cheque book. Even otherwise, there is no proof whether the cheques were actually delivered to other appellant. In this regard the learned Rent Controller has misappreciated the evidence. Shoib Raza has nowhere deposed about issuance and delivery of cheques. On the contrary categorically stated that Cheques bearing No,106555, 106558 and 106559 were never presented in his bank and were not enchased. This witness belies the allegation that cheques were delivered. Regarding the statement of Mehtab Nabi the learned Rent Controller has also misappreciated his evidence. He was cross-examined about his remarks on the registered letter alleged to have been sent by the deceased tenant who was returned by this postman as undelivered because he could not establish contract with the appellant due to his non-availability in the house. As per evidence this letter was brought to the appellant's house on 11- 7-1993 but the ejectment application was filed on 12-7-1993 while verification was made by the Oath Commissioner on 10-7-1993, which shows that as was rightly contended by learned counsel for the appellant this letter was fabricated as value evidence to cover-up the default.
15. The upshot of the above discussion is that the impugned order being not sustainable in law is set aside, and the appeal is allowed with costs. However, 60 days' time is allowed to the respondent to hand over vacant possession of the demised premises to the appellant subject to payment of rent regularly.