1. The appellant had filed an application for ejectment of the Respondent from Shop No.C/23/1692, situated at Nainka Pir, Hyderabad. The shop was rented out to the respondent under an agreement dated 31st October, 1968 on a monthly rent of Rs.40. The appellant alleged that the respondent has defaulted in payment of rent from January, 1975 to March, 1975 and also that he has damaged the shop which is in a dilapidated condition. The learned Controller granted the application on the ground that the respondent has committed default. An appeal was filed against the said order which was allowed and the Controller's order was set aside.
2. The evidence of the parties consists of the statement of the appellant, respondent and one witness, Muhammad Shaft examined on behalf of the respondent. From a perusal of the evidence it seems that the respondent had continuously paid rent without any default from the inception of his tenancy and for the first time the appellant raised objection by filing ejectment application claiming that the respondent has defaulted in the payment of rent from March, 1975. In his evidence he has stated that he had regularly been issuing receipts to the respondents, however, no counter-foils were produced. The respondent on the other hand, denied that he had committed any default. He also stated that he has regularly paid rent upto March, 1975, and the appellant had never issued any receipt. He further stated that the appellant wanted to increase the rent and asked him to vacate the premises on the pretext that he wanted to carry out repairs. This dispute, according to him, happened in the end of March, 1975 and the respondent, therefore, asked him to issue a receipt for the rent paid by him which according to him was not issued. The statement of Muhammad Shaft is relevant to the extent that there was some dispute between the parties in the end of the month of March and the respondent was demanding receipt for payment made by him.
3. The learned Controller on assessm ent of the evidence has taken the view that the respondent has committed default but a contrary view has been taken by the learned appellate Court. At the outset it is proper to state that the, learned Controller did not properly deal with the question of burden of proof in such cases. In cases where the landlord claims that the tenant has defaulted in payment of rent, initially burden is upon him to establish that a default has been committed. To discharge such a burden the entire evidence available to prove it should be produced. If there is any documentary evidence it must be produced but where no documentary evidence is available, a statement on oath by a landlord that default in payment of rent for specific month has been committed by the tenant will be sufficient to initially discharge the burden which then shifts to the tenant who should produce evidence in rebuttal to Establish that he has paid the rent. Therefore, once the initial burden has been discharged the tenant has to affirmatively prove, if alleged I by him, that he has paid the rent.
4. In the present case the facts seem to be somewhat different. The appellant has stated that he had been regularly issuing receipts to the respondent. Once a landlord pleads that he had been issuing receipts to the respondent and the same is denied by the tenant then the burden is upon the landlord to establish that such receipts were issued as and when the occasion arose. If the landlord is unable to produce documentary evidence of such facts then mere statement of the landlord to the effect that the tenant has defaulted in payment of rent should be corroborated by some proper and cogent evidence because in such circumstances the sole statement of landlord may not be sufficient to prove the default. The respondent had taken a consistent stand that the appellant had never issued any receipt of any type for the last 9 years. The appellant has not been able to establish that receipts were issued by him. In a situation where allegation is made that receipts were issued but has not been proved there remains word against word and, therefore, the Court while determining the question of default has to consider the circumstances, the conduct of parties and any other relevant evidence that may be available. The admitted position is that the respondent has been regularly paying rent without any default from the year 1965. The dispute according to the respondent arose in March, 1976 when the appellant wanted him to vacate the premises for repairs. This statement is supported by the statement of Muhammad Shafi, who has stated that the respondent was demanding rent receipt from the appellant who wanted him to vacate the premises for repairs. It, therefore, seems clear that there was some dispute between the parties and the respondent had demanded receipt. In the absence of any evidence that appellant had been regularly issuing receipts he has failed to establish the initial burden. The appellant has not examined any other independent witness to establish his case. The stand taken by the respondent is consistent and finds support from Muhammad Shafi. Taking the entire evidence into consideration, I find that the appellant has not succeeded in discharging the initial burden cast upon him to establish that the default has been committed by the respondent. In view of this discussion the appeal is dismissed with no order as to costs.