' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) against the order dated 16th May, 1981 of the Xlth Senior Civil Judge and Rent Controller, Karachi in Case No, 4113/1980.
The facts leading to the filing of the appeal are as under :-
1. The respondent is the landlady of a shop in building No, III-H-12/ 38, Nazimabad, Karachi which she had rented out to the appellant at a monthly rent of Rs, 100 under a written lease-deed which inter alia provided that the rent would be payable in advance on the 10th of every month. On 20th July, 1980, the respondent filed application under section 15 of the Ordinance praying for ejectment of the appellant on the ground that he was persistent and habitual defaulter and had deliberately failed or neglected to pay or tender the rent of the premises to the respondent since January, 1980 till the filing of the application. The respondent also gave an additional ground that she required the shop premises in question in good faith for her bona fide personal use.
2. The appellant filed written statement on 25th August, 1980 admitting the tenancy and rate of rent but denying that it was payable in advance. He also denied that he was habitual defaulter and stated that in January, 1980 he had left for India and had paid Rs, 400 fot the months of January to April, 1980 to' the respondent. He had returned from India in April, 1980 and he tendered the rent to the respondent through Abdul Haq. It was further the case of the appellant in the written statement that the respondent did not issue the rent receipt on the plea that the receipts were being printed.
On further pressure however, the respondent issued one receipt for the period of January to August 1980 which the appellant refused to accept as he suspected that the one receipt was being issued for ulterior motive with intention to create ground for case of default against him. It was also the case of the appellant that the landlady had been asking all the tenants either to increase the rent or to vacate the premises and coercive methods were adopted by her in sending undesirable persons to the appellant for the purpose. The appellant in his written statement also denied that the landlady required the shop premises for her bona fide use stating that she had given upper portion of premises which was vacated by one Abdullah on rent and besides she owned other premises Nos. III-G-5/14, III. 67/6 and III-H-12/38 in Nazimabad, Karachi. The appellant also raised the additional plea that a sum of Rs, 600 was already lying with the respondent as advance rent which had not so far been adjusted by her.
3. The learned Controller considered the following issues arising from the pleadings of the parties :-
(1) Whether the tenant did not tender rent from January, 1980 ?
(2) Whether the landlady required the premises in good faith for her personal use ?
(3) What should the order be ?
4. He gave finding with regard to issue No, 1 against the tenant and he decided issue No, 2 in the negative against the landlady. In the result he granted the application for ejectment and ordered the appellant to vacate the shop within 45 days of his order dated 16th May, 1981.
5. In this appeal Mr. S. Nasiruddin, the learned counsel for the appellant had raised the following contentions :-
(1) That on the evidence on record, the learned Controller should not have given the finding that the appellant had defaulted in the payment of rent.
(2) That the learned Controller should have accepted the version about the landlady demanding enhanced rent and for that purposely not issuing recipts to the tenants.
(3) That the learned Controller has erred in drawing adverse inference from non-payment of electricity charges.
(4) That since the evidence of the landlady was not believed with regard to the ground of personal requirements, her evidence should not have been believed also with regard to the ground of default in the payment of rent.
6. The respondent in support of her application for ejectment had given, evidence herself and also there was the evidence given by her husband Jan Muhammad. On the other hand, the appellant had himself given evidence and also examined witness Abdul Haq in his support. There was just a word of the appellant that he had made payment of rent from January, 1980 to April, 1980 before he left for India and further that he had tendered rent for the period from May to August, 1980 through Abdul Haq but she did not issue receipt on the plea that receipts were under print. The landlady had totally denied the aforesaid statement of the appellant and stated that the appellant offered lump sum of Rs, 700 in July, 1980 but since he wanted receipts for each month separately on back date she had refused to oblige. It was further her case that the appellant had tendered the rent for seven months after she had filed the application for his ejectment. The evidence of the landlady was fully supported by the evidence of her husband Jan Muhammad, with regard to version of the appellant, the learned Controller observed that Abdul Haq was also tenant of the same landlady and was facing ejectment proceedings in his Court. It was apparent that the appellant had never previously paid rent to the landlady through Abdul Haq. The learned Controller, therefore. Observed that the appellant had failed to explain as to why he himself did not pay the rent from May to August, 1980 to the landlady direct. He further observed that Abdul Haq is naturally hostile to the landlady because he is himself facing ejectment proceedings. He. Therefore. Did not accept the evidence of Abdul Haq to be trustworthy. The learned Controller also considered the fact that although Abdul Han had admitted that he received all the receipts of rent paid by him from January, 1980 till the date of his evidence in Court i,e, 25th March, 1981 he could not explain why receipt was not issued to the appellant when such receipts we're being issued to him and further he could not explain why he had not pressed the landlady to issue receipt of rent paid by him on behalf of appellant to her. Since, therefore, evidence of the parties consists of oral assertion only, as observed in the decision of the Supreme Court in Civil Appeal No, K-125 of 1980 (Allah Din v. Habib son of Moosa) the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment, it was observed as under :- "It is no doubt correct to say that the initial burden of proof was upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13 (2) (i) of the Sind 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."
' In the circumstances, therefore no fault is found with the decision of the learned Controller in respect of ground of default in the payment of the rent. With regard to only other plea that Rs, 600 had been deposited as advance rent. It is true that husband of the landlady had admitted that amount had been deposited but it was asserted that it was not advance rent but fixed deposit which was not adjustable towards rent. The version with regard to deposit of Rs, 600 as fixed deposit is also supported from condition No, 1 of the rent agreement dated 1st April, 1973. It is settled position of law that such deposit by way of security is not adjustable against the rent due from tenant. Reliance is placed on decision of the Supreme Court in Mirza Abdul Aziz Beg v. Mushtaq Ahmad Sheikh.
7. In Muhammad Amin v. Ahmed Bakhsh, a decision of the Lahore High Court when the tenant had deposited Rs, 500 with the landlord as secuity at commencement of tenancy and the tenancy agreement did not contain any condition that in default of rent for a period within security amount tenant would not be liable to ejectment and the agreement provided that security would remain with the landlord till termination of the tenancy and the tenant defaulted in the payment of rent it was held that the tenant was a defaulter.
8. In the aforesaid decision it was inter alia held that the deposit by way of security against the tenant's liability for damage to demised premises was not adjustable against rent due from the tenant and such a plea on the part of the tenant cannot be acceptable in proceedings for ejectment for non-payment of rent.
9. With regard to the contention about the landlady 'demanding enhanced rent, in Badruddin Hasan Farooqui v. Manghi lndustiol Home. a decision of this Court it was observed the demand of higher rent by itself does not cast any doubts about personal bona fide requirements if the factum of bona fide requirements is independently proved. In the instant case although the ground on which the relief of ejectment of the tenant has been allowed is not personal bona fide requirement but default in payment of rent, the aforesaid observation applies with equal force to the instant case and even if it had been accepted that the landlady had asked for enhancement of rent, the fact in itself is not sufficient to consider her plea for the grant of ejectment of the tenant for default in the payment of rent being not bona fide. The further plea that receipts were not given by the landlady is also not believeable as there is nothing on record to show that any protest was made in writing specially when the period in the case is a number of months. Similarly the plea that since the evidence of the landlady was not believed with regard to personal requirement, therefore, it should not be believed with regard to committing of default in the payment of rent, appears to have been totally mis-conceived as it is question of fact whether default in the payment of rent was committed or not and the question whether the learned Controller considered the evidence put up by the landlady with regard to bona fide personal use being adequate or not, can have no effect on the finding with regard to default in the payment of rent. Under the circumstances stated I find no weight in this appeal which is accordingly dismissed however, with no order as to cost.1 2 3