' This is a first rent appeal arising from the order, dated 30-4-1999 passed by the learned Vth Senior Civil Judge and Rent Controller. Karachi (South) whereby in Rent Case No, 1270 of 1993 the application for ejection was allowed and the appellant was directed to vacate the rented premises i,e, Shop No,5, IIIrd Floor, Rehman Chambers, Katchi Gali No,2, Marriat Road, Karachi hereinafter referred to as the demised premises and hand over peaceful vacant possession thereof to the respondent within sixty (60) days from the date of the order.
2. The facts in brief are that the respondent is the owner and landlord of the demised premises and the appellant is the tenant thereof on a monthly rent of Rs,200. It is alleged that the appellant had committed default in payment of rent from the month of January, 1993 and hence ejection was sought on this ground as also on the ground of .Personal bona fide need. The defence put up by the appellant before the learned Rent Controller was that in fact he had always been paying rent regularly to the respondent and in this regard has produced various rent receipts beginning from the year 1984 till December. 1992 and has also pleaded that there was a confirmed practice between the parties that rent was received in lump sum sometime for six months at a time and on other occasions for one year. As regards the default period, it is the appellant's case that rent for the period January to June, 1993 was tendered on 15-5-1993 to the respondent who accepted it but did not issue any receipt immediately and as per practice promised to do so in due course.
Thereafter, on or about 15th August, 1993 when the appellant's son went to the respondent to collect the receipt and also to render rent for the second half of the year 1993 viz. From 1-7-1993 to 31-12- 1993 the respondent avoided to deliver the receipt as well as to accept the rent for the second half of the year 1993. This prompted the appellant to remit the rent for the second half of the year 1993 by means of money orders which was not accepted by the respondent and finally the appellant was constrained to deposit the entire rent for the year 1993 before the learned Rent Controller. It is the appellant's further case that the respondent never required the demised premises for his own personal bona fide need etc
3. Based upon the parties' pleadings the learned Rent Controller framed the following issues:
(i) Whether the opponent has committed wilful default in payment of rent?
(ii) Whether the demised premises was required by the applicant for his personal bona fide need?
(iii) What should the order be?
4. The parties led their evidence and after having heard the arguments of the respective counsel the learned Rent Controller came to the conclusion that default had been committed by the appellant but the demised premises were not required by the respondent for his personal bona tide need. Consequently, ejection was ordered on this basis and hence the appeal.
5. Mr. Aijaz Ahmed Khan; in support of the appeal, has contended that.As per the cross- examination of the respondent; he tad admitted that the contents of paragraph 4 of the written statement are true and correct. Learned counsel has submitted that in such paragraph 4. It is clearly mentioned that the respondent used to collect cumulative rent for six months and used to issue receipt(s) subsequently at his own convenience and also that the respondent had collected the rent for the demised premises, for the period from January, '1993 to June, 1993 on or about 16th May, 1993. Amounting to Rs,1,200. Consequently. Learned counsel has submitted that in view of this clear admission of receipt of rent for the disputed/default period, nothing further remains to be established by the appellant, and accordingly the learned trial Court fell into grave error by holding that the respondent in his cross-examination had specifically' denied the suggestion of the learned counsel.Of the appellant that he had received the rent for the disputed/ default period and has not issued the rent receipt. Similarly, learned counsel has referred to the affidavit-inevidence of the appellant where in paragraph 4 thereof he had deposed that on or about 16th May, 1993 the rent for the period January to June, 1993, amounting to Rs,1,200, was paid to the respondent as usual without receipt, being furnished by the latter as per established practice on which aspect of the matter the appellant has not 'been cross-examined at all. Similarly, learned counsel has referred to the affidavit-in-evidence of the appellant's son namely Muhammad Ahdullah who also had deposed on the same lines as per paragraph 4 of his affidavit-in-evidence and on which too he has not been cross-examined at all. Consequently. Learned counsel has 'submitted that where the facts deposed in an affidavit-inevidence have not been challenged they would be deemed to have been admitted as per Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCM R 2300 Similarly. He has submitted that the Pugrecigoodwill money of the demised premises amounting to Rs,12,500 had been paid by the appellant to the respondent which should be adjusted against the default. If any, and in this respect has relied upon the case of M.K. Muhammad and another v.
Muhammad Abu Bakar 1993 SCM R 200. Learned counsel has submitted further in this regard that under cross-examination, the respondent has displayed his ignorance as to the receipt of Pugree/ goodwill which means admission as per Shafique Ahmed v. Abdul Rehman 1987 M LD 2243.
6. On the other hand, Mr. Mehmood Ahmed.Khan, appearing for the respondent, has submitted that the appellant's entire case is based on the cross-examination of the respondent where he admits that the contents of paragraph 4 of the written statement, filed by the appellant. Are true and correct. However, as per learned counsel this admission is to be seen in conjunction with the earlier question, particularly, as earlier he had denied receipt of rent for the default period. According to learned counsel the earlier question posed to the witness was whether he was aware of the contents of the written statement to which he replied in the affirmative and then the contents of paragraph 4 of the written statement were read over to the witness to which he said that the same were true and correct This, according to the learned counsel only amounts to the admission that he had knowledge of the written statement and not aeessarily that paragraph 4 thereof was factually correct. As to the contention put forward by learned counsel for the appellant that the factum of payment of rent for the disputed period was asserted by both the appellant and his son and they were not cross-examined on the same, this per learned counsel, is totally incorrect.
According to learned counsel the cross-examination of both these witnesses would display that suggestions were made to them that the rent for the disputed period was not paid, which they have denied. Further learned counsel has relied upon the fact that the rent receipts on the record would display that these had been issued without delay although being for a lump sum period of six months each. Hence, it is inconceivable as to why after tendering rent fur the disputed period on 15-5-1993, the landlord should wait up till August, 1993 in order to obtain a receipt for such period as the same was highly improbable. In view of these circumstances learned counsel has submitted that the appellant has failed to prove payment of rent for the default period the onus of which lay upon him as per Mrs. Shamshad Anwar v. Saeed Ahmed 1992 CLC 2077. Learned counsel has also relied upon Pragma Leather Industries v. Mrs. Saadia Sajjad PLD 1996 SC 724 for the proposition that the practice of lump sum tender and acceptance of rent between the parties cannot negate the tenant's obligation to pay rent within the statutory period which had not been done in the present case had the appeilant
7. As regards adjustment of Pugree/goodwill, learned counsel has submitted this could not be done per Mst. Qamer Jahan v. Haji Habib Judira 1990 CLC 591 so also he has submitted that this plea was never ' taken either the written statement or the evidence produced before the Rent Controller by the appellant and hence could not be taken at the appellate stage particularly when there was nothing on the record as to the terms and conditions on which such Pugree/goodwill was given etc.
8. I have heard both learned counsel and my conclusions are as follows: ' It would be seen that the case of the appellant is based, inter alia, on the alleged admission by the respondent in his cross-examination before the learned trial Court that para. 4 of the appellant's written statement was correct whereby it had been averred that the rent for the default period had been paid to the respondent by the appellant amounting to Rs,1,200. However, in my opinion, this alleged admission has to be seen in the context of the overall cross-examination of the respondent as well as that of the appellant. Considering this aspect of the matter, it is quite clear that the respondent just prior to his alleged admission that the contents of para.4 of the written statement were correct has also averred that he knew the contents of the written statement and hence it is quite possible that he viz. The respondent while admitting that the contents of para.4 of the written statement were true and correct meant that he was aware of said para.4. So also it is significant to note that earlier in his cross-examination the respondent has denied receipt of rent for the disputed/default period, Consequently, in my view, the to is no admission by the respondent of receipt of rent for such period, A particularly, when in his affidavit-of-evidence he has reiterated the contents of the application under section 15 of the Sindh Rented Premises Ordinance, 1979 that no rent has been received by him from the appellant attar December, 1992.
9. As to the learned counsel for the appellant's contention that the appellant and his witness were not cross-examined at all on their plea taken in their affidavit-in-evidence that they had paid the rent for the disputed period, it would be seen that such cross-examination is present on the record of the learned trial Court wherein suggestions have been put to both of them to the contrary, which they have denied.
10. Learned counsel for the appellant's next contention is that in any event the rent for the default period could be adjusted from the goodwill/Pugree in the amount of Rs,12,500 which was given by the appellant to the previous owner of the rented premises. In this regard, it would be seen that nothing has come on the record as far as payment of such Pugree amount is concerned either to the respondent or previous owner of the rented premises. In any event, in my opinion adjustment of arrears of rent from goodwill/Pugree could not be claimed by the appellant from the respondent as admittedly such amounts had been paid to the original owners of the rented premises for which proposition Muhammad Ashraf v. Ismail 2000 SCM R 498 can be cited. As to the case cited at the bar by the learned counsel for the appellant M.K. Muhammad and another v. Muhammad Abu Bakar (supra) in my opinion the same is not relevant as in that case it had been held both by the trial Court and the Appellate Court the landlord had received the amount of Rs,17,000 as goodwill money, which the Honourable Supreme Court allowed to be adjusted against arrears of rent.
However, in the present case, as observed above, nothing has come on the record as to the receipt of any amount of goodwill money by the respondent, which has not been proved in the circumstances of the case. In Nargis Latif v. Feroz Afaq Ahmed Khan 2000 SCM,R 99, the Honourable Supreme Court also disallowed adjustment of goodwill money as it had not been proved.
11. However, having said as much, the other aspect of the matter is with regard to the tender of rent by the appellant on the basis of the alleged established practice of such tender on lump sum basis for prolonged periods and acceptance of the same by the respondent. In this connection, it would be seen that as per the rent receipts on the record of the learned trial Court viz. Exhs.A/2 to A/11:, beginning from 1983 such receipts would establish a practice between the parties of lump sum tender and acceptance of rent. For example for the period from July to December. 1983 receipt No,529 is available and is dated 1-12-1983. Similarly for the period from January to May, 1984, the receipt is dated 28-5-1984. For June to December, 1985, the receipt dated 24-12-1985. January to June, 1987. The receipt is again dated 13-8-1987, July to December, 1987, receipt is dated 13-8-1987, July to December, 1989, receipt is dated 20-11-1989. January to June. 1990 it is again dated 6-11- 1990. For July to December, 1991 it is dated 14-5-1992 and January to December, 1992 it is dated 20- 8-1992.
12. From a perusal of the above receipts it transpires that whereas rent was accepted in some cases for six months at a time, in other cases it was accepted for the whole year and sometimes in advance as well. For example for the period January to December, 1987 at least for the months of August. September. October, November and December. 1987 rent was paid in advance as the receipt is dated 13-8-1987. The same is the case for the period from January to December. 1990 where for the entire period rent was tendered on 6-11-1990. Which would denote that rent for the months of November and December, 1999 rent was given in advance. However, as per dictum of the Hon'ble Supreme Court laid down in Aleema Ahmed v. Amir Ali PLD 1984 SC 32 and Shezan Ltd. v.
Abdul Ghaftar and others 1992 SCM R 2400, it has been held that the practice of tender and acceptance of rent on lump-sum basis cannot negate the I express provisions of the Sindh Rented Premises Ordinance. 1979 whereby a particular methodology has been enacted for the payment of the rent. Which the tenant has to abide by in order to avoid being evicted on the ground of default.
Nevertheless the Hon'ble Supreme Court whilst discussing the above mentioned cases in Pragma Leather Industries v. Sadia Sajjad (supra) has opined that the question as to whether a tenant is guilty of a wilful default depends on the facts of each case and consequently if a landlord by fraud or by any sharp practice creates a default the Rent Controller in such a case may hold that there is no wilful 'default on the part of the tenant concerned warranting his/her eviction. In such an event the High Court would be justified not to interfere with the above finding as an Appellate Court and so also the Supreme Court would be reluctant to upset the above concurrent findings of fact. In my opinion, therefore, where there has been an established practice between the parties as in the present case of tender and acceptance of rent on lump-sum basis and issuance of receipts after such tender has been made, then, by not issuing a receipt for a particular period, the landlord cannot be heard to say that a default has occurred. This would indeed be a sharp practice as contemplated in the case of Pragma Leather Industries (supra) which would then he an engineered default and not a wilful one.
13. In the circumstances the appellant could be given the benefit of the doubt as far as default is concerned up to August 15. 1993 when as per the appellant's own admission the respondent had failed to hand over the receipt for the rent received by him on 16-5-1993 for the first 'half of 1993 (which would amount to refusal) and alsorefused to accept the rent tor the second half of the year 1993. Which were subsequently sent through money order twice. However, thereafter. It was the appellant's duty to deposit the rent as per the provisions of the Sindh Rented Premises Ordinance, 1979 within the statutory period. In this connection it would be seen that rent up to August. 1993 should have been deposited ' with the learned Rent Controller within sixty days courting from the date when the appellant had knowledge that the money order in the amount of said rent was refused. The first money order was dispatched on 19-8-1993 and the second one on 7-9-1993 both in the amount of Rs,1.200 each being rent for the period July to December, 1993 and finally the entire amount for the year 1993 in the sum of Rs,2,400 was deposited with the learned Rent Controller on 12-11-1993 in M.R.C. No,1603/1993 filed on '11-11-1993. There is nothing on the record to establish when the first money order was returned to the appellant upon refusal by the appellant as no postman was examined for this purpose. However, a reasonable time may be presumed in this regard, say a week to ten days from dispatch of the same which would mean for the first money order, the appellant would be presumed to have received it back upon refusal by the latest on '26-8-1993. In the circumstances, deposit of the rent for January to June, 1993 on 12-11-1993 (even if it were presumed that the first money order was for the period January to June, 1993) would not be within the statutory period of two months. In my view, therefore, default for the period January to June, 1993 stands proved and consequently I would pass orders for the ejectment of the appellant from the premises in question. The appellant is directed to hand over the vacant possession of the premises to the respondent within three months from today as it is an old tenancy. Order accordingly. This F.R.A. Is in the circumstances dismissed.