1. ' Through this Constitutional petition, invoking Constitutional jurisdiction of this Court, the petitioner has challenged the legality and propriety of the judgment passed by respondent No,1, dated 14-12- 2002.
2. ' The brief facts leading to the filing of the present Constitutional petition are that one S. Noorul Haq through his brother and General Attorney-namely Azizul Haq (father of the petitioner), being landlord, filed a Rent Application bearing No,719 of 1989 against respondent No,2, Dr. Muhammad Farooqullah, under section 15(i)(ii)iv) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred as "the Ordinance") on 17-8-1989 asserting default in payment of rent since September, 1988.
3. ' Respondent No,2 filed his written statement wherein he explained payment of rent since September, 1988, detailing as under:--
(1) Rent for August and September, 1988 Rs,2,000 through Pay order, dated 22-8-1988.
(2) Rent for October and November, 1988 Rs,1,000 paid in cash on 8-10-1988.
(3) Rent for December, 1988 Rs,1,000 paid in cash on 10-12-1988.
(4) Rent for January and February, 1989 Rs,2,000 through Pay Order dated 9-3-1989.
(5) Rent for March and April, 1989 Rs,2,000 through Pay Order dated 15-4-1989 sent by post but refused by landlord.
(6) Rent for March, 1989 and onward deposited in MRC No A28 of 1989.
4. ' The learned Rent Controller held that there was no evidence and proof about encashment of the three pay orders whereas there was no receipt in respect Of cash payment and therefore, default was found to have been committed. Consequently, Rent Application was allowed.
5. ' Respondent No,2 filed Appeal bearing F.R.A. No,421 of 2001 before the Court of learned District Judge, Karachi East which was allowed by order, dated 14-12-2002 holding that Rs,7,000 had been deposited by the respondent No,2 in Court before August, 1989 when rent case was filed.
6. Furthermore, apart from the said deposit, on account of statement by Bank Officer, Syed Shakir Hussain Rizvi, two pay orders dated 22-8-1988 and 15-4-1989 were not shown in the Register of unclaimed amount leading to presumption that the same had been encashed. As regards the third Pay order dated 9-3-1989, the learned District Judge has held that its receipt had not been specifically denied. Now by this Constitutional petition legality and propriety of the said judgment has been challenged by the petitioner.
7. ' I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondent.
8. ' It has been contended by the learned counsel for the petitioner that respondent No,1 has failed to consider the material evidence relating to the commission of default in payment of monthly rent by respondent No,2. The record of the case does establish commission of default in payment of monthly rent by respondent No,2, .Hence impugned order is based on misreading of evidence and non-reading of the material documents. It has, further, been contended that firstly the observation about receipt of Pay Order dated 9-3-1989 is patently erroneous. The witness of respondent No,2, namely the Bank Officer (Exh.1) had specifically mentioned that the Pay Order dated 9-3-1989 had not been encashed; secondly, the Pay Order dated 15-4-1989 about which the said Bank Officer had stated that the amount was not lying unclaimed, the respondent No,2 himself under item No,
(v) had stated that the Pay Order dated 15-4-1989 was sent through post but refused by the landlord; thirdly, Pay Order dated 22-8-1988, the assumption about its encashment is misplaced.
9. The above named Bank Officer produced by the respondent No,2 had no record or information about the account in which Pay Orders dated 22-8-1988 and 15-4-1989 were credited. The. Learned District Judge has totally ignored the possibility of the said two Pay Orders dated 22-8-1988 and 15- 4-1989 having been encashed by respondent No,2 himself upon cancellation. It has, therefore, been argued that the evidence about encashment could, conveniently, have been produced by respondent No,2 in February, 1990 when his evidence was recorded and the Bank could not have refused production of record showing cancellation or encashment of the said Pay Orders in February, 1989. It has, further been contended that respondent No,2 had filed two applications for additional evidence before the subordinate Appellate Court. The first application was filed in May, 1998 whereas the second application was filed on 20-4-2002 and by doing so the sole object of respondent No,2 was to produce additional evidence to overcome the weakness and lacunae in his evidence. It has, therefore, been argued that respondent No,1 should not have allowed production of additional evidence nor the same could be relied upon for reversal of the order passed by the learned Rent Controller. In this respect, learned counse has relied upon the case of Bashir Ahmed v. Ahmad-ul-Haq Siddiqui 1985 SCM R 1232; Asadullah Khan v. Abdul Karim 1995 CLC 1889 and Town Committee Jauharabad v. Falak Sher 2003 CLC 71.
10. ' It has, further, been contended by the learned counsel for the petitioner that respondent No,1 could not assume the jurisdiction of Rent Controller and should have assessed the propriety of the order dated 28-1-1993 passed by the learned Rent Controller and the additional evidence, being contrary to the pleadings/written statement filed in the Rent Case, should not have been allowed to be produced nor it could be taken into consideration. Therefore, respondent No,1 was obliged to discard the additional evidence out of consideration to extent it was contrary to the pleadings.
11. ' It was, next, argued by the learned counsel for the petitioner that the burden to prove payment of net was upon respondent No,2 who did not discharge his obligation because the witness produced by the owner of the subject premises had specifically denied receipt of rent for the period of default together with denial of encashment of Pay. Order. In this respect he has relied upon the ca: es of Allah Din v. Habib PLD 1982 SC465 and Dr. Salma Nassir v.Zaitoon Khatoon and 5 others 1986 CLC 720.
12. ' It has, further, been contended by the learned counsel for the petitioner that respondent No,1 has misread the evidence holding that petitioner's witness had admitted enhancement of rent upon construction of roof of first floor implying thereby consent of the owner. He further submits that the evidence of the petitioner's witness should have been read as a whole because the witness had specifically denied the suggestion to the effect that respondent No,2 had raised construction with consent of the owner and that the rent was increased as a result of additional construction. It has, therefore, been argued that the reading of evidence, as a whole, establishes that the learned respondent No,1 has erroneously picked a sentence, apparently containing typing error. Indeed; additional construction, admittedly raised by respondent No,2, has materially impaired the value and utility of the subject premises besides, exposing the owner to penal action under the Sindh Building Control Ordinance, 1979. According to him, the impugned judgment is liable to be set aside on this ground alone.
13. ' On the other hand, learned counsel for respondent No,2 has contended that the ejectment, application was filed by the Attorney not by the landlord himself. It has, further been contended by the learned counsel for respondent No,2 that attorney of the landlord, who was examined by filing affidavit-in-evidence, has failed to establish the case through cross-examination as per his statement he was unaware of the mode of payment of rent. It has, also, been contended that the attorney was unaware even to the extent that the landlord was issuing rent receipts or not, therefore, his entire evidence is shaky. He has relied upon the case of Amin Muhammad and another v. Muhammad Bux and others PLD 1961 (W.P.) Kar.
14. 173.
15. ' It has, next been argued by the learned counsel that the attorney of the landlord has not denied that payment has not been made to the K.E.S.C. And therefore, amount paid to K.E.S.C. Can be adjusted towards rent. He has referred to the cases of Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCM R 1778 and Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. And others 1993 SCM R 618 in support of his contentions.
16. ' I have considered the arguments, advanced on behalf of the respective parties, perused the record and gone through the case-law, cited at the bar.
17. ' Perusal of the impugned judgment reveals that the learned District Judge (respondent No,1) held that Rs,7,000 had been deposited by respondent No,2 in Court before August, 1989 when rent case was filed. Apart from the said deposit, on account of statement of Bank ' Officer Syed Shakir Hussain Rizvi, two Pay Orders dated 22-8-1988 and 15-4-1989 were not shown in the Register of unclaimed amount leading to presumption that the same had been encashed. As regards the third Pay Order, dated 9-3-1989, the learned District Judge has held that its receipt had not been specifically denied. Firstly, the observation about receipt of Pay Order dated 9-3-1989 is patently erroneous. The witness of respondent No,2, namely, the Bank Officer (Exh.1) had specifically mentioned that the Pay Order dated 9-3-1989 had not been encashed. Secondly, the Pay Order dated 15-4-1989 about which the said Bank Officer had stated that the amount was not lying unclaimed. Respondent No,2 himself under item No,(v) had stated that the Pay Order dated 15-4- 1989 was sent through post but refused by the landlord. In view of the candid assertion that the Pay Order dated 15-4-1989 had been refused to be received= by the landlord, the learned District Judge has, wrongly, assumed that the amount was paid to the landlord. As regards third Pay Order dated 22-8-1988, the assumption about its encashment is misplaced. The above-named Bank Officer produced by respondent No,2 had no record or information about the account in which. Pay Orders dated 22-8-1988 and 15-4-1989 were credited. The learned District Judge has totally ignored the possibility of the said two Pay Orders dated 22-8-1988 and 15-4-1989 having been encashed by respondent No,2 himself upon cancellation. The evidence about encashment could conveniently have been produced by respondent. No,2 in February, 1990 when his evidence was recorded. The bank could not have refused production of record showing cancellation or encashment of the said Pay Orders in February, 1989. The sole reason put forth by the Bank Witness at the time of his evidence on 16-3-2002 for non-production of the above important aspect is that the Pay Orders were more than ten years old. The learned District Judge has assumed the statement of the Bank Witness as truth without realizing that the Bank Witness could have been summoned in February, 1990 but respondent No,2 did not choose to summon any one. The learned Rent Controller had noted the lacunae and weakness in the case of respondent No,2 and had found that the tenant (respondent No,2) had failed to prove payment of rent. Indeed, by virtue of Article 129 of Qanun-e-Shahadat Order, 1984, presumption has to be drawn against respondent No,2 for failing to summon the above evidence.
18. Indeed, respondent No,2 had filed two applications for additional evidence before respondent No,1, first having been filed in May, 1998 whereas the second application was filed on 20-4-2002 with the object to A overcome the weakness and lacunae in his evidence by producing additional evidence.
19. Respondent No,2 should not have allowed production of additional evidence nor the same could be relied upon for reversal of the order passed by the learned Rent Controller. In the case of IA Bashir Ahmed (supra) it was held:-- "Additional evidence cannot be allowed in order to enable a party to patch up the weaker part of its case or to fill up omission or to enable it to raise a new point. It can be allowed only if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record."
20. ' In the case of Abdullah Khan (supra) it was held:-- "... The documents which are now sought to be produced pertained to the relevant period when the transaction is said to have been entered upon between the parties and some other documents which came into existence much before the evidence was recorded. Thus, all such documents which are now sought to be produced by way of additional evidence would not be permitted to be produced as the same would amount to filling in the lacuna left by the party." "that nobody is allowed to fill up the lacuna at belated stage specially when several opportunities were granted by the trial Court."
21. So far as the point of burden to prove payment of rent is concerned, no doubt it is upon the landlord initially but it shifts upon the tenant once the landlord asserts on oath that the rent has not been paid to B him. The reason for this principle is that the status of tenant is that of a debtor and a fact cannot be proved in the negative. In the case of Allah Din (supra) it was held:-- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13(2)(1) of the Sindh Urban Rent Restriction Ordinance, 1959 but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question."
22. ' In the case of Dr. Salma Nassir (supra) it was held that:- "So far the rent for the month of August and September, is concerned, it has been stated that no receipt was executed by the respondent. Besides the words of the appellant there is no independent evidence to show that its rent was paid to the respondent. In the presence of such uncertain evidence, and there being no evidence to Corroborate these facts, the appellant has failed to establish that the rent for the months of August and September was paid to the respondent."
23. The learned District Judge (respondent No,1) has not examined commission of default by the tenant on month to month basis. The tenancy in the present case was on monthly basis and in case respondent No,2 had committed default even in respect of one month during the C period from September, 1988 to July, 1989, subsequent payment of rent could not wipe off default. The learned District Judge (respondent No,1) in paragraph No,7 of the impugned judgment has calculated the payment of rent in lump sum for the period of eleven months. Such approach is contrary to the elementary principles applicable to the cases in which default in payment of monthly rent is asserted. Apart from non-encashment of the three Pay Orders, mentioned in paragraph No,4 of the written statement, respondent No,2 had alleged payment of Rs,1,000 in , cash on 8-10-1988 for two months (October and November, 1988). The monthly rental, admittedly is Rs,1,000. Therefore, on his own showing respondent No,2 had committed default in payment of rent for November, 1988.
24. ' On the other hand, the facts of the case of Zar Wali Shah (supra) cited by the learned counsel for respondent No,2, are distinguishable from the facts of the case, in hand, as in the former both the parties had agreed for further probe and evidence about signatures on documents and for such reason the Honourable Supreme Court had remanded the matter to the trial Court to allow both parties to lead additional evidence whereas in the latter the petitioner did not consent to the grant of application for additional evidence.
25. Similarly, the other case of Muhammad Younus Khan and others (supra) differs from the present case as in that case it was held that factual controversies cannot be investigated and decided by the High Court in exercise of jurisdiction under Article 199 of the Constitution but in the present case writ jurisdiction has been invoked under Article 199 of the Constitution questioning the conflicting findings of the judgments passed by the two Courts below together with the prayer that material evidence has not been considered or has been misread. Moreover, the issues raised about burden of proof and admissibility of additional evidence are purely legal affecting jurisdiction of the learned District Judge and this Court can validly entertain the above question and adjudicate the same in accordance with law. Reliance in this behalf is placed on the judgment in the case of Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680:-- "To these, acts of misreading/non-reading or evidence, failure to notice and an act in accordance with the binding precedents of superior Courts, as also misapplication of Statute law may also be added as instances where interference in Constitutional jurisdiction can be made available. It may be noticed that the Courts invested with powers to administer justice, indisputably a sacred trust, are obliged by compulsion of law both divine and Statute to carefully examine, analyze the evidence present before them, before they arrive at decisions. Every bit that has been placed before them has to be taken note of and given due weight. Absence of right of second appeal to this Court in rent matters has added further responsibility in this behalf."
26. ' Consequently, it is a fit case for exercise of Constitutional jurisdiction and the judgment passed by the learned District Judge (respondent No,1) is not to be sustained being opposed to law and settled principles for administration of justice.
27. ' Accordingly, judgment, dated 14-12-2002 passed by the learned District Judge (respondent No,1) in F.R.A. No,421 of 2001 is quashed and the order dated 28-1-1993 passed by the learned Rent Controller in Rent Case No,719 of 1989 is restored.
28. ' C.P. No,S-209 of 2003 stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.