1. ' This second appeal is directed against the judgment of the Second Rent Controller, Karachi, dated 3-10-1981 whereby the appellant's first appeal was dismissed.
2. ' The shop premises on Plot No,E-14265-48/1 situated on Carry Road near Lawrence Road, Karachi were given to the appellant on rent in 1964 but he did not pay rent from November, 1964 to March, 1971 and hence ejectment application was filed against him on 31-4-1971 where rent of Rs,50 per month had been claimed.
3. ' The appellant denied the relationship of landlord and tenant and claimed that only Rs,30 was the rent of the premises which he had paid but no receipt has been issued to him.
4. ' The preliminary issue in respect of the existence of the relationship of landlord and tenant was framed and the respondent examined himself and produced copy of notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act of 1958 and also made a statement that rent had not been paid to him. The issue was decided in favour of the respondent and the appeal of the appellant also failed. Thereafter, the matter proceeded in respect of the default. On 5-10-1977 the Advocate for the respondent made a statement closing his side. On 4-12-1978 evidence of the appellant was recorded and on 1-2-1979 his other witness was examined and finally on 28-2-1979 third witness on behalf of the appellant was also examined. Meanwhile on 20- 2-1979 the appellant moved an application for recalling the landlord for the purpose of cross- examination in respect of the question of default but the same was not allowed by the Rent Controller on the ground that no new evidence had been recorded.
5. ' The Rent Controller took the view that Rs,50 per month was the rent and the same had not been paid by the appellant from November, 1964 till March, 1971. The Additional District Judge in appeal agreed to the finding of the Rent Controller in respect of the default but in respect of rate of rent he came to the conclusion that Rs,30 per month was the rent because the same had been agreed between the parties on 12-11-1964 by virtue of agreement Exh. 4-2. At this stage it may be mentioned that the said agreement had also stipulated for payment of Rs,500 by the appellant to the respondent as a deposit which was to be refunded at the time of leaving the house and handing over the peaceful possession.
6. ' Mr. Abdul Majeed Khan learned counsel for the appellant has contended that the default had not been proved inasmuch as there was no statement of the respondent on record. This submission is not correct because the statement of the respondent at the time of the preliminary issues on record where a definite statement had been made by "the respondent that he had not been paid any rent by the appellant. Counsel for the appellant submitted that the statement at the stage of preliminary issue should have been kept out of consideration. I do not understand the logic of this argument inasmuch as it was a statement made by the respondent on oath and he was also cross-examined by the appellant's counsel and merely because the appellant's counsel did not cross-examine the respondent at that time on the point of the default would not in any way derogate from the value of the statement. It was a statement on oath and if the appellant did not consider it worthwhile to cross-examine the respondent on the scope of default then it is the responsibility of the appellant himself. The appellant incurred a risk and therefore, he is himself responsible for the consequences.
7. ' Appellant's counsel then submitted that the respondent should have been recalled for cross- examination and the Rent Controller has acted with material irregularity in the discharge of his jurisdiction by not recalling the respondent. I do not agree with this submission. The respondent had been examined and cross-examined on the preliminary issue of relationship of landlord and tenant and he had made a definite statement that he had not been paid any rent. This examination had taken place on 12-1-1974 and the preliminary issue was finally determined in appeal on 21-3-1975. The matter was pending from March, 1975 till 1977 but the appellant never made any request for recalling the respondent. On 5-10-1977 a definite statement was made by respondent's counsel for closing his side and it was at least at this time that an application for recalling the respondent should have been made if the appellant considered the same of importance but the same was not done and in fact from 5-10-1977 till 20-2-1979 the appellant was completely indifferent to the recalling of the respondent. It was only after two wit nesses of the appellant had been examined that he thought of having the respondent recalled for cross- examination. To say the least the application was too belated and was uncalled for in the circumstances of the case and, therefore, it was rightly rejected by the Rent Controller.
8. ' In any case it was for the appellant to prove affirmatively that he had paid the rent of the premises to the respondent. The respondent had, of course initially to make a statement that he had not received the rent and that he had done as far back as 12-1-1974. It was about five years after that statement that the appellant realized that he had not cross-examined the respondent on the point of default. It was too belated a realization, and the attempt of recalling the respondent was rightly repelled counsel then submitted that the finding of default was not justified as the appellant had proved that he had paid the rent. I am afraid that this submission of the learned counsel is not called for in the circumstances of the case. The finding in respect of default is concurrent by the two Courts below and in the limited jurisdiction of Second Appeal I cannot interfere with findings in respect of appreciation of facts. The two lower Courts below have duly considered the evidence on record and have come to the conclusion that the appellant had not proved any payment of rent. Even otherwise the findings appears to be justified inasmuch as the appellant has not been able to produce even a single receipt in respect of the payment, of rent nor has he been able to produce a single witness who could have deposed about the rent having been paid in his presence by the appellant to the respondent. After all the burden of the payment of rent being clearly on the tenant, it was the responsibility of the respondent to discharge that burden by affirmative proof which could appeal to the two Courts below, but he did not produce any such evidence and was content to rely upon his own words. Since it was a matter or word against a word, therefore, the two Courts below had rightly insisted that the non-production of receipt for such a long period was a serious lapse in the case of the appellant.
9. ' In any case there was an exchange of notices between the parties on 10-10-1969 where rent was claimed by respondent first at Rs,60 per month and then at Rs,50 per month on the basis of Excise and Taxation assessm ent and the appellant had insisted that he had paid rent at Rs,30 per month but receipts had not issued to him. Thereafter, the respondent had sent a money order of two months rent for August and September, 1969 which had been refused by the respondent. Thus, quite a serious dispute had arisen between the parties and at least from this day onward the appellant should have been cautious to send the rent by money order or to deposit the same in Court but he did nothing of that sort and on the other hand he contended himself by continuing to paying the rent in cash to the respondent without getting any receipt for the same. This statement of the appellant was difficult to believe and has been adversely commented upon by the Additional District Judge and in my opinion he has rightly done so. The appellant had no business of paying any rent in cash without obtaining the receipt after October, 1969 and "till March, 1971, because a serious dispute about the rate of rent as well as payment of the same had already arisen and no sane person could thereafter take the risk of committing the same mistake which the appellant is alleged to have committed earlier. In fact the non-payment of rent after October, 1969 is clearly proved beyond doubt and the same has also adversely affected the claim of payment of rent by the appellant before that date, and consequently the findings of the two Courts below that rent had not been paid from 1964 to 1971 are amply justified.
10. ' Mr. Abdul Majeed Khan wanted to argue that Rs,500 lying in deposit with the respondent should have been adjusted towards the rent which was due from him. This does not carry the case of the appellant very far because the finding to default is from November, 1964 to March, 1971 (more than 30 months), and even at the rate of Rs,30 per month Rs,500 is not enough to cover a default of even two years and hence this submission of the learned counsel is of no avail.
11. ' I had, therefore, dismissed this appeal on 29-4-1984 and these are the reasons of that dismissal.
12. However, I had allowed six months' time to the appellant, in view of the fact that it is difficult to obtain commercial premises and, therefore, I had thought it just that the appellant should have sufficient time to make alternate arrangement. The appellant shall have to continue to pay rent for this period.