IN THE HIGH COURT OF SINDH, AT KARACHI

 

Constitutional Petition No.S-1258 of 2010

Present:

                                  

     Mr. Justice Abdul Maalik Gaddi

 

Muhammad Riaz Shaikh and others….………………………….. Petitioners

 

Versus

 

Iftikharuddin and others……… ………………………………….Respondents

 

Date of hearing                                28.01.2014   

Date of order                                     28.01.2014

 

 

Mr. Afaq Ahmed, advocate for the Petitioners.

Syed Muhammad Haider, advocate for the respondent No.1.

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O R D E R

 

Abdul Maalik Gaddi,J  Through this Constitutional Petition, the petitioners have assailed the legality and propriety of the order dated 30.11.2010, passed by the learned Vth Additional District and Sessions Judge, Karachi South in FRA No.269/2006, whereby the learned Appellate Court reversed the findings of Rent Controller recorded on the point of default in payment of rent and allowed the ejectment application filed by respondent No.1 on the said ground.

 

2.         Brief facts of the case are that the respondent No.1 filed an eviction application under Section 15 of Sindh Rented Premises Ordinance, 1979 against the petitioners on three grounds viz; (i) default in payment of monthly rent from January, 1994 to March, 1994, (ii) infringed the terms and conditions of tenancy and (iii) subletting.

3.         The respondent No. in his evocation application contended that he is owner/landlord of building known as Al-Noor Chambers, Plot No.PR-2/3/2, Preedy Street, Karachi, wherein the petitioners are the tenants of respondent No.1 in respect of Shop No.31, situated at ground floor of  Al-Noor Chambers, at the monthly rent of Rs.491.40. It is further contended that the petitioners paid the monthly rent to respondent No.1 uptill the month of December, 1993 and thereafter from the month of January 1994 to February 1994 failed to pay the monthly rent to the respondent No.1. Hence according to the respondent No.1, the petitioners have committed default in payment of monthly rent. Besides the ground of default the respondent No.1 contended that the petitioners infringed the terms and conditions of tenancy on which the tenement in question was let-out to the petitioners and the petitioners were using the tenement in question for the purpose other than for which it was let-out. So also the petitioners without the written consent and permission of the respondent No.1 sublet the tenement in question to some unauthorized person.

 

4.         The petitioners have contested the ejectment application by filing their written statement before the learned Rent Controller, wherein the petitioners though admitted the relationship of landlord and tenant between them, but opposed the ejectment application on all three grounds.    

 

5.         The learned Rent Controller, after recording of evidence of the parties and after hearing their counsel dismissed the ejectment application filed by respondent No.1 vide its order dated 27.7.2006 on all the said three grounds. Feeling aggrieved with the said order, the respondent No.1 preferred an appeal being F.R.A. No.269 of 2006 before the District & Sessions Judge Karachi South, which was subsequently transferred to learned Vth ADJ, Karachi South on administrative ground, who decided the said appeal by allowing the ejectment application only on the ground of default in payment of rent, which is impugned through this Constitutional Petition.

 

6.         Heard parties advocates and perused the record.

 

7.         It is contended by the learned counsel for the petitioners that the default alleged was never committed by the petitioners and it is clearly reflected on record that the amount of alleged default was firstly tender through money order dated 24.03.1994 and thereafter duly deposited in Court in M.R.C. No.553/1994 on 01.01.1995. He further contended that the findings of the learned Rent Controller is based on rational, logical and proper appreciation of evidence which was recorded before him and as such there was no reason or room for disturbing or reversing the findings of Rent Controller by the learned appellate Court. While elaborating his arguments, he has contended that the petitioners used to pay the monthly rent to the respondent No.1 in advance and the petitioners paid rent to the respondent No.1 till December 1993, vide receipt available at page 93 of the file, he has further contended that the petitioners had sent the rent for the month of January 1994 and onwards on 24.3.1994 through money order which was refused by respondent No.1 therefore, petitioners have started depositing the rent in Misc. Rent Case No.553 of 1994 before the Rent Controller Karachi South, as such according to him the petitioners have not committed any default in payment of rent. In support of his arguments, he has relied upon case law reported in 19995 SCMR 330, 1986 CLC 705 (Kar), 1990 MLD 1667, 1989 SCMR 1670 and 1992 SCMR 46.

 

8.         Conversely, learned counsel for the respondent No.1 has supported the findings of the learned appellate Court on the ground of default in payment of rent by arguing that petitioners have committed willful default in payment of rent with effect from January 1994 to March 1994. He has further submitted that during the cross-examination the petitioner No.2 namely Shahzad Riaz Shaikh, who is attorney for the rest of the petitioners has admitted that there was a practice to pay the monthly rent in advance of 5th of every month. According to him, the said witness has also admitted the receipt and so also the contents of clause 20 printed on backside of Ex.0/1 in evidence. But the petitioners have failed to pay the requisite rent in time, therefore, he was of the view that the petitioners have committed willful default in payment of rent which cannot be washed out even by subsequent tender/depositing rent in Court. In support of his arguments he has relied upon case law reported in 1999 YLR 230.

 

9.         After hearing the parties advocates, and perusal of record it reveals that there exist relationship of landlord and tenant in between the parties. It is the case of the respondent No.1 that the petitioners have committed willful default in payment of rent with effect from January 1994 to March 1994. This fact has been denied by the petitioners in their joint written statement. In order to ascertain whether the petitioners have committed default in payment of rent as alleged by the respondent No.1 or otherwise. I have gone through the evidence of respondent No.1 in which he has stated that he has not received the rent with effect from January 1994 to March 1994. It is settled law that non-payment of rent is a negative fact. If landlord appearing in Court and stating on oath to have not received rent for a certain period, burden lies upon him would sufficiently discharged and shift on tenant to prove affirmatively that he paid or tender such rent.

 

10.       Here in this case the landlord has stated that he has not received the rent for a period of January 1994 to March 1994, therefore, burden shift on tenant to prove that he has paid rent for a particular period. In this connection, I have gone through the evidence of petitioner No.2 namely Shahzad Riaz Shaikh, who in his cross-examination categorically admitted the rent receipt Ex.0/1 in evidence. So also admitted the contents at the back of the said receipt. This witness during his cross-examination also deposed that he always used to pay/tender the rent in advance since inception of tenancy. He also admitted the terms and conditions written on the back side of the said receipt. For the sake of convenience, it would be proper to reproduce relevant piece of cross-examination which reads as under:

 

“I paid the monthly rent uptill the month of December 1993 for which applicant issued me the rent receipt. I see the rent receipt dated 13.2.1993 and say that this is the same receipt. I see back of the said receipt as Ex.0/1. I admit the contents of clause 20 printed on back side of the Ex.0/1. Vol. stated that I always used to tender the rent in advance since the inception at the tenancy. It is correct that for the first time I sent the monthly rent for the month of January 1994 to the applicant through postal money order on 24.3.1994. I produce the certified copy of money order as Ex.0/2. It is correct that on 11.04.1994 I had filed M.R.C. 553/94 before the Court of Ist Rent Controller Karachi South for deposit of monthly rent for the month of January, 1994. I produce the certified copy of M.R.C. No.553/94 as Ex.0/3. It is correct that for the first time I deposited the monthly rent for the month of January, 1994 in MRC No.553/94 & the same was deposited by me on 01.01.1995. ”   

 

11.       From the above piece of evidence, it is revealed that the rent was to be paid in advance every month by the 5th of each Colander month, whereas the petitioner No.2 during his cross-examination admitted that the first time he sent the monthly rent of January 1994 to the respondent No.1 through postal money order on 24.3.1994. This fact has been denied by the respondent No.1.

 

12.       Under such situation, I have gone through the following case law:-

            1)         Ghulam Nabi Vs. Noushad Ali and 2 others 2010 MLD 1543

            2)         Razia Sultana Vs. Muhammad Hasan Khan 1991 CLC 632

3)         Mst. Shabana and another Vs. Messrs N. P. Cotton Mills (Pvt) Ltd. 1999 YLR 230

 In the case of Ghulam Nabi Vs. Noushad Ali and 2 others 2010 MLD 1543 (Kar), it has been held that tenant plea having sent rent through money order denied by landlord-Effect-burden to prove payment of rent of defaulting period would shift upon tenant, but in the present case the tenant admitted that he first time deposited the monthly rent of January 1994, in M.R.C. No.553 of 1994 on 01.01.1995 after the delay of about one year. It is argued by the learned counsel for the petitioners that the petitioners have sent rent of the disputed period through money order, which was refused by respondent No.1 and this fact has been denied by the respondent No.1. Under this situation I am of the view that where payment of rent by money order was disputed, it was proper to examine postal authorities to establish remittance, delivery and acceptance or refusal of such amount. Procedure prevalent for remitting money order required that money order should be tendered with a form by the postman and if it was accepted a receipt was given by payee and refusal and in case of acceptance receipt would be delivered to the remittal, mere receipt for remittance of money order, infact and it was filed by tenant as happened in this case could not be created as an authentic document to prove that the money order was remitted.

 

12.       Here in this case, it is an established practice by the tenant to pay rent in advance on every 5th of the calendar month and this fact has admitted by the attorney of the petitioners in his evidence, therefore, under the circumstances, the petitioners were required to pay/tender the rent as admitted practice but here in this case admittedly the tenants have sent rent for the month of January 1994 to March 1994 on 24.03.1994 through money order, which was also not received by landlord and thereafter the tenants have started to deposit the rent of the disputed period and onward in M.R.C. No.553/1994 on 01.01.1995. The similar situation was came under discussion in the case law reported in the case of Razia Sultana Vs. Muhammad Hasan Khan 1991 CLC 632 in which the Honourable High Court of Sindh has held as under:-

 

13.       I have perused the record of the learned lower Court but did not find convincing evidence on record.

 

14.       It is settled law that payment or tender of rent after committing of default of no avail to the tenant. In this regard I am supported with case law reported in 1999 YLR 230. No Postman has been examined in this case by the tenants to prove that the rent of the disputed period was received by the landlord. No convincing evidence on record on behalf of the tenants to discharge the burden lay on them.

 

15.       In view of the foregoing reasons, I am of the view that the judgment of the learned appellate Court is not open to exception and the view taken by her on the question of default is based on correct appreciation of evidence. In the result this Constitutional Petition is dismissed with no order as to cost. Since the petitioners are old tenants of the premises in question, therefore, they are granted 90 days’ time to vacate the premises in question and handover its vacant possession to the respondent No.1 subject to payment of rent.

 

16.       This petition was dismissed alongwith listed application by me by my short order announced in open Court on 28.01.2014 in open Court. These are the detailed reasons for the same.

 

                                                                                                            J U D G E