' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is from the order, dated 20-3-1985, passed by the Controller whereby he has ordered eviction of the appellant from House No, 1329, Block 14, F. B. Area, Karachi.
' The facts giving rise to this appeal, briefly, stated, are that the respondent filed an application under section 15 of the Ordinance for eviction of the appellant on the grounds of default in payment of the rent, the electricity 2nd the gas charges, and nuisance. The appellant in his written statement denied both the grounds. Therefore, on the pleadings of the parties the Controller framed the following issues :- "(1) Whether the opponent committed default in payment of rent, electricity and gas charges 1
(2) Whether the opponent is guilty of nuisance ?
(3) What should the order be ?"
3. Before the Controller the respondent filed her own affidavit (Exh. 3) and the affidavit of her brother Allay Hassan (Exh. 4) in support of the plea of default and the affidavits of two other witnesses who are her neighbourers namely Zaheer Baig (Exh. 5) and Abdul Rashid (Exh. 6) in support of the plea of nuisance. They were all cross-examined by the counsel for the appellant.
4. On the other hand, the appellant filed his own affidavit and the affidavit of Maqsood Anwar in rebuttal to the affidavit of Zaheer Baig. All the aforesaid witnesses were cross-examined. After considering the evidence the Controller found issue No, 1 in favour of the respondent and issue No 2 against her, and ordered eviction of the appellant giving him three months time to vacate the premises. The appellant has, therefore, come up in this appeal.
5. I have heard Mr. Abdul Naseer Khan learned counsel for the appellant and Mr. A. K. M. Idris learned counsel for the responder;,. The learned counsel for the parties have also taken me though the affidavits in evidence filed by the aforesaid witnesses and their cross. Examination. I have also perused the notice, dated 12-2-1981, (Exh. A/3) and the money order coupons. The respondent in the application had alleged that the rent of the premises is Rs, 450 per monta and that the appellant is also liable to pay electricity and gas charges. The cast of the respondent before the Controller was that the respondent did not pay any rent, electricity and gas charges from August, 1979, in spite of repeated demands. The appellant in his written statement stated that the rent was enhanced from Rs, 450 per month to Rs, 50o per month from 14-1-1980, and that he paid the monthly rent regularly but the respondent never issued any receipt for the same. His further stand was that he had paid the electricity and gas charges upto January, 198i, and that on refusal of the landlord to accept the rent sent to her by money orders he started depositing the same in the Court in Miscellaneous Application No, 284 of 1981, which was dated 12-1-1981. It may be mentioned that the Rent Case was filed against the appellant on 21-1-1981. Before the Controller it was asserted that the appellant had paid the rent from August, 1979, to May, 1980 and electricity, gas charges from August, 1979 till December, 1981, and that the respondent did not issue any receipt for the same.
6. However, the Controller refused to believe the appellant that he had paid the rent upto June, 1980 and electricity and gas charges upto December, 1981 for the reason that, if the respondent had refused to receive the rent from June. 1980, how could she receive the electricity and the gas charges from June, 1980 to December, 1981. He found that the appellant had failed to produce any documentary or oral evidence proving that he had paid the rent, electricity and gas charges for the disputed period to the respondent and that the respondent did not issue any receipt for rent or the electricity and the gas charges. He relied on the admission of the appellant made in his cross- examination that he was unable to produce any rent receipt or other evidence to prove payment of rent from August, 1979, till May, 1980, and electricity and gas charges from August. 1979, till December, 1981. He held that in absence of any oral or documentary evidence mere word of the appellant was not sufficient to prove the payment. He, therefore, ordered his eviction.
7. Mr. Abdul Naseer Khan learned counsel for the appellant submitted that the finding of the Controller that the appellant had failed to pay the rent and electricity and gas charges for the aforesaid period is incorrect as there being word against word and burden of proof being on the respondent, he should have held that respondent had failed to prove non-payment of rent and electricity and gas charges. He further submitted that the respondent had not issued any rent receipt and it was so admitted by her brother in his cross-examination. In support of bis submission he relied on Mst. Fayyazi Begum etc. v. Zakiuddin (1) Mst. Anwari Begum v. Noor Hassan
(2) Muhammad Shafi v. Iqbal Ahmed and another (3).
8. On the other hand Mr. A. K. M. Idris learned counsel for the respondent submitted that the appellant used to bring prepared receipt and the respondent used to sign the same. He further submitted that the respondent had proved non-payment of rent. He relied on Muhammad Ramzan v. Bashir Ahmad (4) Allah Din v. Habib. (5)
9. Now taking up the submission of Mr. Abdul Naseer Khan that the respondent was not issuing any rent receipts it may be stated that the respondent in her cross-examination to the learned counsel for the appellant stated that the appellant used to bring rent receipt and she used to sign it. The learned counsel for the appellant, however, pointed out that the respondent in her cross- examination admitted that she was not in possession of the counterfoils which bear the signature of the appellant. In the aforesaid circumstances her statement that she was not in possession of the counter-foils which bore signature of the appellant was correct. In view of the aforesaid evidence it cannot be said that the respondent was not issuing any rent receipt and the questions of respondent possessing any counter-foils which bore her signature does not arise. It was, however, pointed out by Mr. Abdul Naseer Khan that the respondent's brother in his cross- examination has not said that the appellant used to bring rent receipts to his sister and his sister used to sign it. What he has said is that she used to issue receipt of rent in his presence and that he could not say as to when the last receipt was issued to the appellant by the respondent. This statement in my opinion is not in any manner inconsistent with her statement that the appellant used to bring receipt and she used to sign it. The evidence of her brother is to be read in that context. Therefore, in my view, the burden of proving that the appellant had not paid the rent was sufficiently discharged by the respondent and then burde had shifted on him to disprove by producing the receipts or any other evidence. The appellant in his evidence admitted that he had no evidence A documentary or oral, available with him. It was not his case that he had paid the rent for which the claim was made by the respondent in the presence of any witness. It is, therefore, clear that he failed to discharge
(1) NLR 1984 Civil 96 (2) 1984 CLC 265
(3) PLD 1965 (W. P.) Lain 23 (4) PLD 1967 (W. P.) Lab. 696
(5) PLD 1982 SC 465 the burden of disproving non-payment of rent or proving payment of the rent.
10. Now, before taking up the cases cited by the learned counsel for the parties, I may refer to the following dictum of Hamoodur Rahman, C. J., in Mst. Qaisar Kharoon and 12 others v. Maulvi Aodul Khaliq and another (both represented by heirs) (1) :- "The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to the definite conclusion-Vide Durga Prasad and another v.
Ghanshiam Das and others PLD 1948 P C 171. In such an event the rule is that the party on whom the onus lay must fail."
11. In view of the evidence brought on record I am of the view that the Controller was right in not believing the evidence of the appellant that he had paid the rent for there was no reasons for the respondent not to accept electricity and gas charges but to accept the rent. The claim by the appellant that he had paid the electricity charges upto December, 1981, was made for the reason that from june, 1980, he had started depositing rent with the Controller in Miscellaneous application filed by him on i2-1-1981, but he had not deposited the electricity and gas charges with the rent nor had he included the said charges in the money orders for rent, which he had started sending from 14th June, 1980. The appellant is a recruiting agent as alleged by the respondent or an Estate Broker as stated by Mr. Abdul Naseer Khan at the bar, and in any case, he is an English knowing educated person as would appear from his affidavit and, therefore, it is unbelieveable that he would make payment of rent without receipts. Further, under section 10 (2) of the Ordinance the landlord is under obligation to acknowledge the receipt of payment of rem in writing and it was the duty of the appellant to obtain receipt for the same to avoid any future dispute as regards payment thereof.
Under these circumstance finding of the learned Controller is unexceptionable.
12. Now, remains to be considered are the cases cited by the learned counsel for the appellant. In the case of Mst Fayyazt Begum Etc. v. Zakiuddin (Supra) it was held that once a landlord admits that he had not been issuing receipt to the tenant and he claims that the tenant has not paid the rent and the same is denying by the tenant then the burden is on 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. In the present case the landlord has stated that she had been signing and giving the rent receipts which used to be brought by the appellant and that distinguishes the cited case. It may be mentioned that in the cited case also the. Learned Judge held that since the appellant had not been regularly issuing receipts and he had not examined any witnesses, he had failed to discharge the burden of proof. But in the present case burden of proof, in my opinion, was fully discharged. Moreover, the case is distinguishable for the reason that in the case on hand the appellant had started sending money orders for rent and thereafter depositing rent in Miscellaneous proceedings from the month of January, 1981. He did not
(1) PLD 1971 SC 334 however, send any money order on account of electricity and gas charges. Thus, in any case there was default in payment of electricity charges which also made the appellant liable to be evicted from the premises in view of the definition of 'rent' as given in section 2 (1) of the Ordinance.
13. In the case of Mst. Anwari Begum v. Noor Hassan (Supra) no rent receipts were issued by the landlady and her entire case rested on her sole oral evidence while the oral testimony regarding payment of rent to the contrary was supported by documentary evidence in shape of money orders and cheques. In these circumstances it was held that default in payment of rent had not been proved. This case again distinguishable on facts.
14. Taking up the last cited case in Muhammad Shari (Supra) it was held by Sajjad Ahmed, J., that non-production of receipts by the tenant has been given an exaggerated importance by the learned lower appellate Court. It is not unusual for old tenants, like those placed in the position of the appellant, not to insist on the execution of receipts, thus avoiding to express openly a lack of faith in the honesty of purpose of the landlord. After reviewing the evidence it was observed that on the evidence on record and the entire circumstances of this case it is not possible to give a conclusive finding safely, one way or the other whether rent was in fact paid for these three months, as alleged by the appellant, or remained in arrears, as alleged by the respondent. In this situation, since the onus was on the respondent to prove non-payment of rent, the doubt had to be resolved in favour of the appellant. In the present case in view of the circumstance there was no question of any doubt and the Controller reached the correct conclusion. Therefore, this case is also distinguishable on facts.
15. Taking up the cases cited by Mr. A. K. M. Idris it may be mentioned that in the case of Muhammad Ram:an (Supra) the statement of the landlord was that the tenant had not paid him rent since October, 1957. The tenant, however, in the cross-examination admitted that he was submitting accounts to the Income-tax Department since 1951, and that there was no entry in his account-books regarding the payment of rent, In these circumstances it was held that mere assertion that the rent bad been paid would not carry the day.
16. Taking up the Supreme Court's case of 4 Bah Din (Supra) it may be stated that in this case it was observed by the learned Judges of the Supreme Court that in civil proceedings an issue is to be decided by preponderance of evidence and in case where there is a word against a word, it is the party on whom lay the onus of proof must fail. It was further observed that the initial burden of proof lies 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, and in support of this proposition reliance was placed upon Khairun-Nisa v Muhammad Ishaq (1).
(I) PLD 1972 SC 25
17. I am, therefore, of the view that the respondent bad discharged initial burden and the appellant failed to prove payment of rent. Accordingly, the order of the Controller is upheld. Consequently, the appeal is dismissed with costs.
18. I may record that A. K. M. Idris questioned the finding of the Controller on the issue of nuisance but since I have confirmed the finding on issue of default, therefore, I do not consider it necessary to discuss the issue of nuisance.
19. Mr. Abdul Naseer Khan requests two months time to vacate the premises. Mr. Idris is not agreeable for two months time. But I think the request is reasonable and 1 grant the appellant two months time to vacate the premises and hand over its possession to the respondent provided he deposits the rent according to the order of the Controller.