' SALMAN HAMID, J.---Yasmin Tariq, widow of Muhammad Tariq resident of Flat No,2, 12th Floor, Block A, Taj Complex, M.A.Jinnah Road, Karachi (respondent No,1) filed Rent Case No,165 of 2008 (Rent Case) before IIIrd Rent Controller, Karachi East (Rent Controller) for eviction of Mrs. Sakina, daughter of Haji Yousuf Ali (Petitioner) from Flat No,2-B, 11th Floor, Block A, Taj Complex, M. A. Jinnah Road, Karachi (Demised Premises) on the ground of default in payment of monthly rent and personal bona fide need. The Rent Controller after evidence of the petitioner and respondent No,1 in terms of order dated 30-10-2009 allowed Rent Application by holding that the petitioner was a defaulter in payment of monthly rent but personal bona fide need of the respondent No,1 was turned down. It seems that the respondent No,1 did not challenge denial of personal need by the Rent Controller before the higher forum. However, the petitioner preferred First Rent Appeal No,332 of 2009 (FRA) before the District Judge, Karachi East which was decided by Vth Additional District Judge, ' Karachi East (Vth ADJ) upholding the Order dated 30-10-2009 in terms of Judgment dated 25-11-2010 (Order of Rent Controller and Judgment of Vth ADJ collectively referred to as, "Decisions").
2. Through the present Constitution Petition (Petition) the petitioner has challenged and questioned the decisions amongst others on the grounds that finding of the two courts below as far as it relates to default was arbitrary and erroneous and illegal and was an outcome of misreading and non-reading of evidence; therefore, not sustainable in law. It was argued that the courts below did not appreciate that after refusal of acceptance of rent it was attempted to be paid and a notice was sent and thereafter money order was sent and at last it was deposited in MRC. It was also implored that the courts below did not appreciate that the respondent No,1 created the ground of default which actually was not available. Next it was contended that the provisions of Sindh Rented Premises Ordinance, 1979 (SRPO) were wrongly interpreted and applied. Similarly Clause 8 of the tenancy agreement was wrongly misinterpreted.
3. Opposing the petition, it was argued by the learned counsel for the opponent that the decisions are based on proper appreciation of evidence that came on record wherein the petitioner categorically admitted default in payment of rent and that the two courts below having looked into such admission and also that the petitioner failed to discharge her burden in establishing that no default was committed and that the respondent No,1 succeeded in discharging the burden and established that the default was made, the two courts below made the Decisions, which are unexceptionable and require to interference, more particularly when this court is exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It was asserted that the Petition is liable to be dismissed.
4. I have heard both the learned counsel and have perused the record'. It is by now well established and embedded that initial burden is upon the landlord to discharge that default was committed by the tenant and all that is required of a landlord is to state on oath that rent was not received from the tenant for a given period of time whereafter the A burden shifts, under law, upon the tenant, who on his turn has to prove affirmatively that the payment of rent was made and has to dislodge the claim of default, raised by the landlord, by producing affirmative an convincing evidence.
Gauging the case in hand on the above principle of law, it would be evident from the cross- examination of the petitioner that she categorically admitted that, it is correct to suggest that I have not paid water conservancy charges since inception of tenancy. It is correct to suggest that I am bound to make payment of all utility charges as per clause 8 of tenancy agreement"
(emphasis provided). It may be noted that clear admission was made by the petitioner that she did not make payment of water and conservancy charges as according to her it was not required by her in terms of clause 8 of tenancy agreement because after determination of such agreement, she became statutory tenant of the Flat, without realising that such a stance was a double edged sword inasmuch as that even if clause 8 is held to be inapplicable in present case still according to petitioner's own claim of statutory tenancy, she fell victim to the provisions of section 2(i) of SRPO.
Rent as per SRPO includes water charges, electric charges and such other charges which are payable by the tenant but are unpaid. (emphasis provided). If the meaning of rent is tested on the admission of the petitioner, as reproduced above, then the petitioner, is a clear defaulter in payment of rent of the Flat.
' All other defences taken by the petitioner, therefore, need not require any further discussion.
Nevertheless it may be observed that it was raised in defence by the petitioner that in the first instance she tendered rent to the guard/chowkidar namely Muhammad Ali and later on such was attempted to be paid through one Hawwa Bai of Flat No,2/12/A of the building but she in early November 2007 refused to accept rent on the ground that she developed some differences with the respondent No,
1. Thereafter according to the petitioner she tried to contact the respondent No,1 but failed and she (petitioner) then caused legal notice dated 16-7-2007 and upon its refusal, rent was tendered through money order and that such tender of rent also did not bare fruits, rent was deposited by filing MRC No,323 of 2007. It may be pertinent to note that the respondent No,1 is a resident of the same building only .a floor above to the Flat. It is beyond comprehension that the petitioner could not contact the respondent No,1 in making payment of the rent. The notice that was sent to respondent No,1 does not show anywhere that it was received, though it is mentioned on the notice that it was sent through registered post A/D. The provision of section 10(3) of SRPO stipulates that the rent shall in absence of any date fixed in this behalf by mutual agreement between the landlord and tenant be paid not later than 10th of Month next following the months for which it is due and upon landlord's refusal or avoidance to accept the rent it may be sent to him by postal money order or be deposited with the Controller within whose jurisdiction the premises is situated. Analysis of this section would show that it is necessary for the tenant to show that the landlord had refused to accept the rent and upon such refusal the rent was money ordered or it was deposited with the Controller. It was nowhere established from the evidence of the petitioner that acceptance of rent was refused which became all the more important to prove when respondent, No,1 categorically denied such claim of the petitioner. It is also important to note that the petitioner failed to have examined Muhammad Ali, the chowkidar or Hawwa Bai to establish that they were authorised by the respondent No,1 and/or they were the rent collector on behalf of respondent No,1 to collect the rent. Mere assertion without substantiation of payment of rent was not enough.
5. Scrutiny of above aspects viz. Admission on the part of the petitioner that she did not make payment of water and conservancy charges which are included in the meaning of 'rent' and that she (petitioner) also failed to establish by convincing evidence that she first tried to tender the rent and upon refusal left with no option but to start depositing in MRC remained unproved. Burden which was put upon the petitioner by the respondent No,1 by asserting that no rent was tendered remained un-discharged.
6. It was in this view of the matter that the Decisions came in which are un-exceptional and require no interference of this court. Precedents relied upon by the learned counsel for the petitioner were in respect of tender of rent and/or denial thereof by landlord wherein such was proved; whereas in the present case the petitioner having herself admitted default in payment of rent, such citations were of no assistance to her.
7. Conclusion is that this petition must fail: Dismissed.