' Aggrieved by order of eviction passed by the learned V Rent Controller, Karachi in Rent Case No, 4537/76 on 25th October, 1979, the appellant/tenant has preferred this appeal under section 21 of the Sind Rented Premises Ordinance of 1979.
1. Briefly the facts stated are that on 8th November, 1976, the respondent filed application under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1059 seeking eviction on the plea amongst others that the appellant, his tenant, in respect of shop No, 7 Khalid Cloth Market Karachi on Rs, 35 per month, committed default in payment of rent for the period from. March, 1976 to October, 1976.
' The appellant contested the case and in his written statement, the above plea of default was denied. It was further pleaded by him that as he was to go to Punjab to settle his family affairs, in the first week of March, 1976. When the respondent came to collect rent the appellant informed him about his intention to stay in Punjab for more than seven months and that for the said reason in the presence of Respondent No, 2 (who had been joined as a party to the proceedings as an alleged sub-tenant) and other persons paid a sum of Rs, 350 being the rent in advance for the period from March, 1976 to December, 1976. It was further pleaded that the respondent did not issue the receipt but promised to send the same within 2 or 3 days along with the receipt for rent of December, 1975 to February, 1976, paid by him earlier on 1st January, 1976. According to the appellant he left for Punjab on 10th March, 1976 but the promised receipt was not sent by the landlord, and that on his return in September, 1976 he learnt from the Respondent No, 2 that the respondent/landlord had sent rent receipt for Rs, 105 only for the period from December, 1975 to February, 1976. The appellant then contacted the landlord but to no avail and thus he placed the matter before the elders of the Market, but the respondent/landlord refused to issue the receipt for Rs, 350 unless the rate of rent was enhanced to Rs, 100 per month to which the appellant did not agree.
' Certain other pleas were also taken in reply to the allegations made in the application but the same being not relevant for the pnrposes of this appeal are not reproduced.
2. On the pleadings of the parties the following issues were framed :- '(1) Whether the opponent is in default in the payment of rent ?
(2) Whether the opponent No, 1 has sublet the shop in question to opponent No, 2 as stated in the para. 4 of the application ?
(3) Relief '1"
3. The respondent/landlord examined himself as a witness on his own behalf. On the other hand the tenant/appellant examined himself (Exh..0/1) and also examined one Shamsud Doha (Exh. 4/0).
4. The learned Rent Controller by order passed on 25th October, 1973 after recording evidence and hearing the learned advocates for the parties, under Issue No, 1 held the appellant/tenant guilty of having committed default in payment of rent from March, 1976 up to the filing of the case in November, 1976. Issue No, 2 was decided in favour of the appellant by holding that alleged subletting was not proved.
' Consequent to the finding under Issue No, 1 as above, the appellant was directed to vacate the premises and hand over its possession to the respondent.
5. This appeal has been preferred by the appellant wherein the findings given under Issue No, 1 by the learned Rent Controller have been assailed.
' Mr. Azhar Ali Siddiqui the learned Advocate who argued the case on behalf of the appellant contended that the findings of the learned Rent Controller given under Issue No, 1 wherein it was held that the appellant bad committed default in payment of rent since March, 1976 till November, 1976 when the case was filed against him by the respondent, was erroneous. He relied upon the evidence of the appellant as well as that of Mr. Shamsud Doha. The learned counsel submitted that on 1st January, 1976 the appellant had paid Rs, 105 as rent for the months of December, 1975 to February, 1976 for which rent receipt dated 1st January, 1976 (Exh, 0/2) was issued by the respondent/landlord in favour of the tenant.
' It was then argued that the appellant in his evidence had deposed that in March, 1976 he had paid rent for March, 1976 to December, 1976 in advance as he was going to Punjab but the landlord/respondent in spite of the receipt of the amount did not issue the receipt at that time. On return from Punjab, the appellant in his evidence deposed, that he demanded the receipt but he was told that the respondent had already filed the case and would charge Rs, 100 else the shop be vacated.
' In his cross-examination the appellant however stated that he had gone to Punjab in February, 1976 and further deposed :- "In February, 1976 I had paid rent for the month March, 1976 to December, 1976 but no receipt was issued to me and the rent receipt upto August, 1976 was never given. I had come back from Punjab after 15 days. I did not (illegible) the applicant to give me the receipt after coming from Punjab."
' The appellant however admitted that on refusal of the respondent to issue the receipt, he did not give any notice to the applicant demanding issuance of the receipt. At the close of the cross- examination of the appellant/tenant the following note, made by the learned Rent Controller appears :- "At this stage the applicants Advocate suggests that if the opponent takes Holy Quran he will withdraw the case. The opponent is not agreed to take Holy Quran."
7. It would be appreciated to make reference here to the evidence of Shamsud Doha (Exh. 4/0) a witness examined by the appellant. The evidence of this witness is belied from the fact that, whereas the appellant had stated that he had paid Rs, 350 to the landlord, he (Shamsud Doha) went a step further and deposed that Rs, 750 were paid. Again nowhere the appellant mentioned presence of this witness when the amount was allegedly paid. Nor the story of alleged negotiations and demand of rent at enhanced rate of Rs, 70 stated by this witness was corroborated by the appellant. The witness does not even state that the sum of Rs, 750 was paid in his presence. At a number of places his statement is found to be based upon either alleged information received by him or upon knowledge which was later on acquired by him. The evidence of this doubtful and obliging witness therefore does not help the appellant.
8. Now reverting to the evidence of the appellant we find that the story set up by this witness/appellant is also not confidence inspiring. On the contrary we find that it suffers from contradictions, and false statements.
' Reference may here be made to para.9 (c) of the written statement where the appellant pleaded that in first week of March, 1976, when the respondent/landlord came to collect rent, he in the presence of respondent No, 2 and other persons paid Rs, 350 to him and that no rent receipt was received "till 10th March, 1976" the date of departure of the appellant for Punjab. The appellant then proceeded to state in sub-para. (d) of para. 9 of the written statement :- "That this opponent proceeded to Punjab on 10th March, 1976 and returned in the last week of September, 1976."
' The above case pleaded in the written statement was given up by the appellant in his evidence when in the cross-examination he came out with a new story, relevant portions of his deposition are reproduced below .- "In 1976 I had gone to Punjab and it was February, 1976.
"....... In February, 1976 1 had paid rent for the month of March, 1976 to December, 1976 ....... I bad come back from Punjab after 15 days."
' Thus from a comparison of the case as pleaded in the written statement and that set up in the evidence (some of the portions reproduced above) there is no escape from the conclusion that the appellant is an unreliable witness. The evidence of his witness Shamsud Doha is equally false.
9. As against the evidence given by the appellant and his witness, I find that the evidence of the respondent has remained consistent with the case pleaded by him on the Issue under consideration. He stated in the application that the rent of the shop in question is Rs, 35 per month and that the appellant is a defaulter in the payment of rent and had failed to pay rent from 1st March, 1976 to 31st October, 1976. The same statement was made by him in his evidence on oath.
The burden lay heavily upon the appellant to establish that he had made payment of rent in March, 1976 for the period from March, 1976' to December, 1976 and on the facts on record I find that he has miserably failed to discharge this onus.
' A fact to be mentioned here though not a deciding factor, is that when at the end of his cross- examination the appellant was offered that if be makes a statement on oath (Holy Quran) that he had made payment of rent for the period from March, 1976 to December, 1976, the respondent would withdraw the case. This offer was not accepted by the appellant. While deciding this case I am not giving any weight to this offer and it refusal, but the fact remains that the evidence of the appellant and his witness suffers from inconsistencies which lead to the conclusion that the learned Rent Controller was justified in disbelieving the plea of the appellant that he had made payment of rent for the period, March, 1976 to December, 1976 and was thus not a defaulter.
' I may also mention here that though in his written statement para. 9 (c) the appellant he had stated that rent (for March, 1976 to December, 1976) was paid by him to the respondent in the presence of the respondent No, 2 and other persons, but neither the respondent No, 2 nor any other person was examined by him in support of this plea. From non-production of the respondent No 2, who in the circumstances was a material witness, strong presumption follows that had he been examined, he would not have supported the plea of payment of rent set up by the appellant. No other witness, except Shamsud Doha, was also examined.
10. The upshot of the above discussion is that the appellant has failed to establish that he had made payment of rent for the period March, 1976 to December, 1976.
' No error of fact or law in the conclusions reached by the Rent Controller could be pointed out by the learned counsel for the appellant. Thus I find no merit in this appeal which is accordingly dismissed with costs. The appellant is granted four months' time to vacate and hand overlC vacant and peaceful possession of the premises in question to the respondent. In case of his failure to do so, writ of ejectment would be issued without notice to him.