1. ' SAJJAD ALI SHAH, J.---Through this petition, the petitioner has called in question order, dated 2-10- 2007 passed by the Vth Addl. District Judge Karachi West in F.R.A. No,13 of 2004 whereby the Appellate Court while reversing the finding of the Rent controller on the issue of default, dismissed the ejectment application.
2. ' Briefly stated the facts, the petitioner/landlord filed an ejectment application against the respondent No,1/tenant alleging therein default in the payment of rent from May, 1989 till filing of the ejectment application i,e, October, 2002 and subletting of the premises to respondent No,2.
3. ' In defence, the respondent No, 1/tenant pleaded that it was a practice of the petitioner/landlord to collect/receive rent for two, three, six, twelve months in advance. It was asserted that in the beginning of the tenancy, the petitioner occasionally used to issue rent receipts and thereafter no rent receipts were ever issued. It was claimed that rent upto the month of February, 2003 was paid in advance but no receipt was issued. It was further stated that after institution of the ejectment proceedings the respondent No,1/tenant offered the advance rent for the month of March, 2003 to the petitioner and on his refusal to receive the rent the same was deposited with the Rent Controller. Regarding subletting, it was submitted that the respondent No,2 is the son of respondent No,1, therefore the question of subletting does not arise.
4. ' The Rent Controller, on the basis of evidence led by the respective parties, allowed the ejectment application on the ground of default in payment of rent but rejected the application on the ground of subletting. The respondent No,1/tenant, thereafter, filed an appeal against the ejectment order and the appellate Court accepted the appeal and dismissed the ejectment application.
5. ' Mr. Mushtaq A. Memon, learned counsel for the petitioner has contended that under the law it is the duty of the tenant to pay rent to the landlord without being demanded and that too against a valid receipt for its payment, therefore the appellate Court was totally unjustified in allowing the appeal by holding that the rent was not demanded. It was next contended that in the instant case the landlord has stated on Oath as to the issuance of rent receipts and had also produced counter-foils therefore the initial burden to prove non-payment for defaulted period was sufficiently discharged, therefore the findings of the appellate Court that the petitioner was to produce more convincing evidence are totally misconceived. Reliance was placed on the judgment of the Supreme Court in the case of Laeeq Ahmed v. Mst. Shamshad Anwar (1995 SCM R 214) and this Court in the case of Naseem Begum v. Mst. Raeesa Khatoon (19997 MLD 1030).
6. ' It was lastly contended that in cases where the landlord shows indulgence by not initiating any steps for eviction of his tenant for a considerable long period on the ground of non-payment of rent or his failure to serve the tenant with a legal notice before filing of ejectment application cannot by itself give rise to a presumption that the tenant had been making payment to the landlord. Reliance was placed on the judgment of this Court in the case of Shabbir v. Mujeebur Rehman (1993 CLC 173) and Mst. Sidiqua Begum v. Irshad Ali Shah (PLD 1999 Kar. 311). It was, therefore, contended that the judgment of the appellate Court is based on erroneous assumption of facts and mis-application of law, therefore is laible to be quashed and the order of the Rent Controller to be restored.
7. ' On the other hand, Mr. Ghiasusddin Mirza, learned counsel for respondent No,3, while relying on the judgment of the Supreme Court in the case of Shah Wali v. Ferodzuddin (2000 SCM R 718) and Ali Muhammad v. Muhammad Aftab (2001 SCM R 1569) contended that the factual controversies cannot be decided by this Court while exercising writ jurisdiction. It was next contended that in the instant case the landlord collected the rent from the tenant at his own convenience after a period ranging from two months to one year lump sum upon occasional issuance of receipts in beginning of tenancy and thereafter totally failed to issue receipts giving rise to remittance of rent through money order for the month of March, 2003. In the circumstances, per learned counsel, in view of the judgment of this Court in the case of Haji M. Usman v. Yousuf Ali Muhammad Bhai (1986 CLC 380) no default was committed.
8. ' It was next contended that since the respondent/tenant had denied the issuance of rent receipts, therefore, the burden was on the petitioner/landlord to establish issuance of receipts by producing documentary evidence as held in the case of Mst. Fayazi Begum v. Zakiuddin (1986 CLC 1280).
9. ' In reply, Mr. Mushtaq A. Memon, counsel for the petitioner, while placing reliance on the judgment of the Supreme Court in the case of Safeer Travel (Pvt.) Limited v. Muhammad Khalid Shafi (PLD 2007 SC 504), has contended that this Court, while exercising writ jurisdiction, can always interfere with the judgment and order of the Appellate Court if the view taken by it was contrary to established principle of law or evidence on record.
10. ' I have heard the learned counsel of the parties and have perused the record.
11. ' In the instant case the petitioner filed ejectment application on 511-2002, claiming default since May, 1989 in response, the defence of the tenant was that he has paid rent upto the month of February, 2003 but without receipt. It was asserted that there was a practice whereby the landlord would collect the monthly rent in advance sometimes for a year, six months, three months or two months against occasional issuance of rent receipt in the beginning of tenancy but thereafter no receipt was issued. In the affidavit-in-evidence the petitioner specifically deposed that he has been issuing rent receipt as and when rent was paid by the tenant and further produced not only the last rent receipt but also produced counter-foils to prove issuance of receipts. The petitioner even denied a suggestion that the respondent has paid any rent after May, 1989, though there was a suggestion that rent for February, 2003 was paid by the respondent but no receipt was issued by the petitioner, however, nothing was suggested that the rent right from May, 1989 till 2003 was paid to the petitioner and he failed to issue receipt. ' perusal of subsection (2) of section 10 of the Sindh Rente Premises Ordinance, 1979 (hereafter referred to as the said Ordinance) reflects that it is the duty of the landlord to acknowledge the payment of rent by issuance di receipt in writing. However, since by virtue of subsection (4) of section 10 of the said Ordinance, the tenant has to produce such produce such receipt acknowledging payment of rent in order to discharging the burden of proof as placed upon him, therefore in cases where the landlord refuses to issue receipt acknowledging payment of rent, the tenant is at liberty to send the rent through money order or to deposit the same with Rent Controller. Consequently, a tenant who pays the rent to his landlord without a written acknowledgement of rent does so at his own risk and takes upon himself burden to prove its payment, and for this very reason it has been continuously held by this Court as well as the apex Court that non-payment of rent is a negative fact and 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 will then shift to the tenant to prove affirmatively that he paid or tender the rent. The only exception to such rule could be where the landlord admits non-issuance of rent receipts.
12. ' As to the proposition laid down in the case of Fiayazi Begum (supra) to the effect that in cases where the tenant denies issuance of receipt by the landlord then the burden would be on the landlord to establish that such receipts were issued, with all due respects, does not appeal to my mind as it would amount to shifting the burden of tenant upon the landlord for the reason that the fact regarding issuance of receipt cannot be proved by the landlord unless the landlord obtains an acknowledgment from the tenant at the time of issuance of receipt or to produce witnesses to dislodge the claim of tenant which would not only amount to placing the landlord to a disadvantageous position but would give an unwarranted edge to the tenant upon the landlord, totally against the spirit of law. It would further encourage the tenants to simply deny issuance of rent receipts in all cases of default in order to take advantage by shifting the burden of proof upon the landlord. No doubt in cases where the landlord accepts non-issuance of rent receipt the tenant would be exonerated from the burden as placed upon by subsection (4) of section 10 of the said Ordinance.
13. ' Since in the instant case even the tenant has acknowledged occasionally issuance of rent receipt therefore, the burden was upon the tenant to either establish payment of rent for the disputed period by adducing satisfactory evidence or to prove non-issuance or rent receipts and not upon the landlord as held by the. Appellate Court.
14. ' Coming to the question as to whether long delay in initiating ejectment proceedings on the ground of default in payment of rent coupled with non-issuance of notice of demand can give rise to any adverse presumption against the landlord. There is no provision in the said Ordinance, restricting the right of landlord to initiate ejectment proceedings against a tenant on the ground of default within a specified period and this Court in the case of Mst. Siddiqa Begum (supra) has held that a landlord can validly initiate ejectment proceedings against his tenant on the ground of non- payment of rent on the basis of a rent which has become barred by time. No doubt that such long mum on the part of landlord coupled with non-issuance of notice of demand may give rise to a rebuttable presumption that he has no cause of grievance against the tenant but such presumption is rebutted by the landlord, no sooner he steps into the witness box and states on oath that he has not received the rent for a specified period then the burden would entirely rest upon the tenant to establish through satisfactory evidence that he has paid the rent in the manner asserted by him.##TE# ' In the case of Shabbir (supra) relied upon by Mr. Mushtaq Memon, this Court has held that indulgence shown by landlord in not taking steps for eviction of his tenant for a long time on the ground of non-payment of rent or his failure to serve tenant with a legal notice before filing an ejectment application would not by itself give rise to a presumption that tenant had been making payment to landlord. ' to the contention of Mr. Mirza that this Court while exercising writ jurisdiction cannot resolve factual controversies, there no cavil to the proposition as propounded by Mr. Mirza, however learned counsel totally failed to point out as to what factual controversies are involved in the instant petition. In my opinion, the instant case hardly contains any factual controversies, on the contrary, it contains misapplication, of law. Even otherwise, it has been constantly held by this Court as well as the apex Court that this Court while exercising writ jurisdiction ordinarily does not undertake to reappraise the evidence to disturb the findings of facts but it would certainly interfere if such findings are found to be based on non-reading or mis-reading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of power, reference can be made to the judgment of the apex Court in the case of Muhammad Lehrasib Khan v. Mst. Hakim un Nisa (2001 SCM R 338) beside the case of Safeer Travel (Pvt.) Ltd.
15. (supra). The objection, consequently, is without any substance.##TE# ' These are the reasons for the short order, dated 12-11-2008 whereby this petition was allowed and the order of the Appellate Court in FRA No, 13 of 2004 of District (West) was quashed and the order of Rent Controller in Rent Case No,169 of 2002 was restored.