1. This First Rent Appeal is directed against the order dated 2-11-1981 passed by the XIth Senior Civil judge/Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondent and directed the appellants to hand over its peaceful and vacant possession to the respondent within sixty days from the date of the order.
2. The facts leading to the filing of the above appeal are' that the respondent is the landlord of the building situated on Plot No.3, Block No.5, Sub--Block `R', Row No.1, Nazimabad, Karachi and the predecessor-in-interest of the appellants was the tenant in respect of Shop No.1 consisting of one room only below the staircase of the premises at a monthly rent of Rs.100. The respondent filed eviction application being Rent Case No.2711 of 1979 against Mashaikuddin, predecessor-in-interest of the appellants on the ground of default. The original tenant 'resisted the eviction application. The respondent filed his own affidavit in support of the eviction application besides affidavit-in- evidence of Syed Zahir Hussain, Syed Nafisul Hussain and Abdul Rehman. The original tenant Mashaikuddin filed his own affidavit in rebuttal besides his son and attorney Wajihuddin, Sabir Hussain, Syed Ahmed Shah, Moizuddin and 'Handwriting Expert A.B. Chughtai. They were cross- examined by the learned counsel for the respective parties.
3. The learned Controller on the basis of evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No. 1 in the affirmative and allowed the eviction application vide order dated 2-11-1981.
4. Mashaikuddin being aggrieved by order dated 2-11-1981 of the Controller filed the present appeal on the grounds mentioned in the memo of appeal. Mashaikuddin died on 19-3-1981. His legal heirs were brought on record.
5. During the hearing of the appeal, the learned counsel .For the respondent moved an application under Article 59 of Oanun-e-Shahadat, 1984 for referring the documents to handwriting experts.
6. This application was allowed on 10-10-1985. The documents were referred to two handwriting experts who gave their opinion: The parties counsel examined the handwriting experts before the Commissioner who submitted his reports.
7. I have heard the learned counsel for the parties and have perused the record and the additional evidence recorded before the Commissioner and the opinions of the handwriting experts.
8. The respondent asserted in his eviction application that late Mashaikuddin had paid Rs. 3,000 as deposit which amount was adjusted upto 15--4-1977. The said Mashaikuddin committed default in payment of rent. Late Mashaikuddin was in arrears of rent from 16-4-1977 to 15-5-1979 amounting to Rs. 2,000. Late Mashaikuddin (lid not pay electricity charges to the tune of Rs. 4,818. Late Mashaikuddin filed written statement wherein he denied the allegations of committing default and pleaded that the rent has been regularly paid by him in the presence of witnesses. It is pleaded that no receipt was issued to him on the pretext that the receipt book was not available or that he would have to purchase a new receipt book. It was further pleaded that even assuming that the rent had not been paid since 1974 and even after adjusting the deposit of rent, it is incredible that respondent should wait nearly two years before filing this case. It is pleased that the last rent collected by the respondent was on 13-10-1979 in the presence of witnesses. He came to know on 13-10-1979 about the rent proceedings, thereafter he deposited the rent in Misc. Rent Application No. 5503 of 1979. It is the further case of the said Mashaikuddin that he cleared all the amount of electric charges.
9. The respondent stated in his affidavit-in-evidence that late Mashaikuddin was inducted in the shop in dispute as a tenant on or about 15-12-1966 vide agreement dated 15-12-1966. Another agreement dated 22-6-1967 was executed between the parties. Besides other terms it was agreed that late Mashaikuddin would install a separate sub-matter in the shop at his own cost for the purpose of electricity consumed by him and he would pay the electricity charges as per sub-- meter reading every month. Late Mashaikuddin paid rent upto 15-11-1974 and thereafter the rent was not paid by him when even the respondent pressed him, he used to send a letter requesting the respondent to adjust the rent from the deposit. The letter dated 22-3-1975 was annexed to the affidavit. Late Mashaikuddin requested every time that he would vacate the shop as he could get another shop. Looking to the past relations agreed to the suggestion and allowed him time. There were disturbances from March, 1975 till 4-7-1977 and thereafter his nephew had fallen seriously ill and he expired in 1978 and he was not attending throughout the period.
10. 'The respondent stated in his affidavit that he used to issue rent receipts to him at the time of receiving rent and he had even signed few rent receipts at number of times but whenever the rent was paid by his servant his signature could not be obtained while issuing rent receipts. The electric connection was disconnected as he failed to pay sum of Rs. 4,818.75. The respondent produced original agreement as Exh. A/1/1 and counter-foil of receipts as Exh. A/1/2. Counter-foil receipts book for earlier was not produced as it was misplaced.
11. The respondent denied the suggestion that he used to avoid rent receipt to late Mashaikuddin on one pretext or the other. The respondent denied the suggestion that Mashaikuddin's servant never sat in the shop. The respondent also denied the suggestion that he cooked up the false story on the payment of rent through the servant. The respondent also denied the suggesiim about writing the letter Exh. A/1/3. The respondent to a question in cross-examination stated that he cannot produce the original bill of electricity charges.
12. A.W. 2 Syed Zahid Hussain stated in his affidavit that he signed a lease agreement dated 15-12-1966 as a witness. Mashaikhuddin was inducted by him to the respondent.
13. A.W. 3 Syed Nafisul Hasan Shah stated that Mashaikuddin was dealing in general merchandise business including the cosmetic articles and he is his customer. On or about 22-6-1967 he had signed a lease agreement as a witness which was between the respondent and Bashir Ahmed. This witness denied the suggestion that Mashaikuddin did not sign any agreement in 1967 and that his signature was forged.
14. As against the above evidence D.W. Wajihuddin son and attorney of late Mashaikuddin filed his affidavit wherein he stated that ever since his father became infirm and started loosing his eye- sight several years ago he has been looking after and running the shop. Wajihuddin stated in his affidavit that respondent never gave any receipt even though requested for the rent paid by him on behalf of his father on the pretext that the rent book was not available or that he would sent it later. He further stated that rent was paid by him in the presence of witnesses. The electricity charges paid upto October, 1979. The electric connection was disconnected since October, 1979 there proof whereof annexed to the affidavit as Annexures I and II. He stated that apart from agreement dated 15-12-1966 no amendment thereto ever signed by his father.
15. This witness admitted in his cross-examination that at the time of inceptiont,f tenancy there was no electric connection in the shop. He denied the suggestion that after installation of electric connection, sub-meter a fresh agreement of tenancy was executed. To a question in cross- examination he replied that first his father was paying rent to the respondent and after his illness, he used to pay the same to the respondent. He denied that he received letter dated 16-4-1979. He admitted the signatures of his father on Exh. A/l. He denied the signature of his father on Exhs. A/2 to A/4, A/9 to A/12. To a question in cross-examination he stated that the letters Exhs. A/6 and A/8 bear his address but these were not received by them. He denied the suggestion that he has cooked the story of not issuing the rent receipt whereas actually no rent was paid by him.
16. Saeed Ahmad Shah stated in his affidavit that he knows the parties. He stated that on occasions it so happened that late Mashaikuddin and his son used to pay rent of the shop in his presence and he used to give Wajihuddin a friendly advice to obtain receipt from the respondent. In response to the evidence. Wajihuddin used to say that the respondent used to say that this friendly matter and as he was witness to the fact that the respondent took rent without giving receipt; there was no need in any event of giving him receipt. To a question in cross-examination he replied.That the appellant did not act on his advice of receiving rent receipt from the respondent. To a suggestion in cross-examination he replied that late Mashaikuddin paid rent to the respondent in his presence.
17. Late Mashaikuddin filed his own affidavit wherein he stated that due to infirmity caused by old age as well as on account of the fact of his sight failed, he had given charged to his son Wajihuddin to run the shop for last seven years. He stated that the respondent never gave any receipt for the rent received by him as the practice in area where the shop is situated. He denied the suggestion that he did not pay rent of the shop since last eight years. He admitted that only at the inception of tenancy agreement was executed. He denied the suggestion that fresh agreement was executed between the parties after installation of the electric sub--meter in the shop. To a suggestion in cross-examination he replied that there is a common electric meter and he used to pay electric charges for the common meter of all the three shops. He admitted the suggestion that electic connection was disconnected for want of payment as the bill of Rs. 300 was refused by him as the electricity was consumed by all the tenants including respondent. To a question he replied that nothing was signed by him in presence of Chughtai. He admitted the suggestion that application was signed by him but with the help of someone as he was not in a position to sign on his own accord, due to the poor health. He also admitted that he always used to demand rent receipt. To a suggestion in cross-examination he stated that his son never wrote a letter to the respondent for issuing receipt and he never protested in writing.
18. A.B. Chughtai Handwriting Expert filed affidavit-in-evidence and stated therein that he had given a report. The report dated 24-8-1981 is annexed to the affidavit. He also annexed photo copy of letter dated 22-3-1975 (marked A) photostat copy of agreement dated 22-6-1967 (Annexure marked B), photostat copy of agreement dated 22-6-1967 (marked A/2), rent receipt dated 16-11-1974 (markad A/3), rent receipt dated 16-9-1974 (marked A/4) and rent receipt dated 16-10-1974 (marked A/5), agreement dated 15-12-1966 (marked B/2), application (marked B/3, agreement dated 22-6-1967.
19. He opined that signatures marked A, A.1, A.2, A.3, A.4, and A.5 have not been written by the same person who has written the signatures marked B, B.1 and B.2. The two group of signatures have been written by two different persons.
20. The admitted documents and questioned documents were sent to Mouladad Khan and Ahmed Abdul Rashid Khan. They submitted their reports.
21. Ahmed Abdul Rashid Khan submitted his report dated 29-3-1986. He opined that signatures G.H.
22. And L have not been written with the hand of late Mashaikuddin. Ghulam Abbas Jaffery opined that letter dated 22-3-1975 (marked L), receipt No.156 dated 16-9-1974 (marked K), receipts dated 16-10- 1974 and No. 158 dated 16-11-1974 are not in agreement with those of the signatures marked as B on Hajj passage, C on lease agreement dated 15-12-1966 and `A' Passport No. K/1268 dated 19-11-1970.
23. Mouladad Khan, Handwriting Expert also opined the same. Ahmed Rashid Khan and Mauladad Khan were examined and cross-examined by the learned counsel for the parties before the Commissioner.
24. The tenants' version was that there was only one tenancy agreement dated 15-12-1966 (Ext. A/1).
25. The tenant denied (i) execution of subsequent agreement dated 22-6-1976 Exit. A/2), (ii) letter dated 2-3-1975 (Ext. A/3). The landlord forged signatures of the tenant appearing on rent receipts.
26. The Controller found that letters Exts. A/4, A/6, A/8 were sent to the tenant. The Controller discarded the evidence of A.R. Chughtai handwritting Expert on the sole ground of interested witness. The Controller compared the signatures on the disputed documents with the admitted signatures and came to the conclusion that the signatures resembled with each other. The Controller also found that the tenant executed two agreements.
27. The eviction application was presented on 21-5-1979 under section 15(2) of the Sind Urban Rent Restriction Ordinance, 1979.
28. Keeping in mind the main object of the enactment, namely, restriction in the increase of rent and eviction of the tenants therefrom, principle that emerges from the several decisions is that default to be regarded as deliberate default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. If the default was due to accident or inadvertence or erroneous of false sense of security based upon the conduct of the landlord himself, the default cannot be said to be wilful default. It is not possible to lay down and hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and deliberate or wilful default should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the prior conduct of the tenant consisting of chronic defaults or non-issuance of rent receipts taken along with totally false and reckless plea of discharge or any other wholly untenable plea may amount to default. But at the same time, certain pleas raised by the tenant, but negatived by the Controller on assessment of the evidence adduced by the landlord and the tenant, may constitute proof of bona fides on the part of the tenant, as to rule out any theory of default.
29. The Controller after discussion of the rival versions of the parties rejected the case of the tenant and ordered eviction.
30. The ultimate conclusion of the Rent Controller has already been stated earlier in this judgment from which it would be clear that he made no effort to focus his mind on the points involved in this case.
31. The result therefore is that I am thrown back upon the reasoning, and the 3coiiclusion of the Rent Controller. The record shows that the tenant was inducted in the disputed shop with effect from 16- 12-1966. From the inception of tenancy upto the date of filing the eviction application, the respondent did not issue any rent receipt to the tenant. The respondent stated in his eviction application that the tenant had to pay electric charges according to the meter reading, in accordance with the lease agreement. The respondent did not annex the copy of agreement alongwith the eviction application. The respondent relied on (i) rent receipt and (ii) agreement only. The tenant pleaded in his written statement that "the rent has been regularly paid by the opponent in the presence of witnesses. However the applicant always kept putting off giving receipts on the pretext that the receipt book is not available or that he will have to purchase a fresh receipt book. Furthermore even assuming that the rent had not been paid since 1974 and even after adjusting the deposit of rent it is incredible that the appellant should wait nearly two years before filing the case". The Rent Controller has totally ignored this important setting and background of the case especially when the evidence consists of interest testimony on either side.
32. Secondly it is wholly conceivable and understandable that the tenant if really he was guilty of default in the payment of rent from 16-11-1974 upto 15-5--1979 would pay rent on 13-10-1979 m the presence of witnesses. I see considerable force in the argument of the learned counsel for the appellant', that the agreement dated 15-12-1986 was executed between the parties, why the parties should enter into another agreement on 22-6-1967 during the continuation of the first agreement.
33. This background again has been completely overlooked by the Controller.
34. The Controller held that letters Exh5. A/4, A/6 and A/8 were sent to the tenant and the respondent discharged the burden by producing copies of letters and certificate of posting. I am, of the view that where it is shown in evidence that an envelope containing a letter was posted under certificate of posting with correct name and address of the addressee and was not returned back, a presumption arises under the law that such letter has been delivered to the addressee. However, the presumption of service shall stand refuted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him. In such a case the initial burden of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling the postman concerned who delivered the letter. In the case before me the statement of respondent regarding service of letters Annexures A/4, A/6 and A/8 was challenged by the attorney of the original tenant who denied the suggestion in cros-examination about receipt of the letters. In this state of evidence in my view the presumption regarding sending of letters to the tenant arising under Section 114 of Evidence Act was sufficiently rebutted and burden of proving sending of letter remained on the respondent which, in the circumstances, could only be discharged by calling the postman concerned. I, therefore, hold that sending of letters was not proved to the original tenant.
35. Further on a reading of the order of the Controller, I find that it is vitiated by a misconception and misreading of the evidence of the appellant and his %witnesses including A.R. Chughtai. The Controller disbelieved the evidence of the (tenant and his witnesses on the ground that the tenant executed agreement dated 22-6-1967 and letter dated 15-3-1974. If the evidence is properly read as a whole, it will be seen that version of the tenant is correct. The documents agreement dated 22-6-1967 and letter dated 22-3-1974 were not written by the tenant. The counter-foils of the receipts were also not signed by the tenant.
36. Agreement of tenancy (Ext. 6/4) was executed on 15-12-1966. This agreement was for 11 months.
37. The alleged tenancy agreement (Ext. 5) was executed on 22-6-1967. This agreement was also for 11 months commencing from 1-3-1967. I have perused both the agreements. A perusal thereof shows that the terrors and conditions of both the agreements are same. The tenant deposited Rs. 3,0000 on 15-12-1966 and again on 22-6-1967 the tenant deposited Rs. 3,000. In this view of the matter the tenant deposited Rs. 6,000. As per agreement dated 22-6-1967 the tenant had to instal a sub- meter in the shop at his own cost and the amount was to be according to the electricity consumed by him. There is nothing on record to show that the tenant had installed the sub-meter in his shop.
38. On the contrary, I find photo copy of the letter dated 21-5-1980 of Controller of Building, Nazimabad Zone, addressed to the respondent. This copy is annexed to the affidavit of the tenant's attorney. A perusal thereof shows that the tenant never got any connection from Meter No. AL-161739 as alleged by the respondent.
39. It is an admitted fact that there are more than two shops in the building owned by the respondent.
40. The respondent produced receipt book (Ext. A/1/2). Th4 serial number is from 101 to 200. First receipt is dated 1-5-1971 and the last receipt was issued on 16-11-1974. A perusal of counter-foils would show that the receipt book pertains to two shops only and the names of the tenants Khalid Ahmed and Mashaikuddin.
41. The handwriting expert compared the signatures on the admitted documents, i.e., agreement dated 15-12-1966 (Ext. C/5), vakalatnama in Rent Case No. 2711 of 1979 signed by Mashaikuddin.
42. Signatures on passport, application for Hajj passage with the questioned signatures on agreement dated 22-6-1967 (C/6), letter dated 22-3-1975, counter-foil receipts Nos. 156,157 and 158.
43. They opined that the prominent characteristics of the disputed signatures are not in agreement with those of the signatures on agreement dated 15- 12-1966 (C/5), vakalatnama, passport and application for Hajj passage. Nothing has been elicited in the course of cross-examination of A.R.
44. Chughtai, Mouladad Khan and Rashid Ahmed Khan to show as to why their opinion should not be accepted.
45. I have considered the evidence on record and reached the conclusion th91t the statements of the handwriting experts are cogent or convincing enough to lead to a definite conclusion. They admitted that signature on the disputed documents i.e. Ext-C/6, counter-foils Nos. 156, 157, 158, letter dated 22-3-1975 are not in agreement with those of the signatures on Ext. C/5, vakalatnama, passport, application for Hajj passage. The cursory examination of these documents would bear out the obvious disparity between the signatures on Ext. C/6, counter-foils Nos. 156, 157 and 158 and letter dated 22-3-1975 and the admitted signatures of the documents.
46. The learned counsel for the respondent contended that comparison of handwriting as.a, mode of proof of hazardous and the learned counsel for the appellants should not have placed any reliance on the opinions of the handwriting experts. The handwriting experts A.R. Chughtai was examined before the Controller, Mouladad Khan and Rashid Ahmed Khan who have been examined in this case before the Commissioner appear to be men of considerable experience. They have given detailed reasons for reaching the conclusion that the disputed signatures are not in the same hands as admitted signatures of late Mashaikuddin. Nothing has been elicited in the course of the cross-examination of the handwriting experts of their impartiality.
47. Having regard to all these circumstances, I am unable to accept the contention on behalf of the respondent that the disputed signatures on these documents are in the hand of late Mashaikuddin.
48. Receipt Book Ext. A/1/2 contains serial numbers 101 to 200. Out of these only 158 receipts were issued. These were issued to two tenants namely Khalid Ahmed and Mashaikuddin. Out of these only three counter-foils bear the disputed signatures of Mashaikuddin. The counter-foil was not signed by the other tenant.
49. It is not denied that late Mashaikuddin was the tenant since 15-12-1966 and he had not made any default in payment of rent upto 15-11-1974. The version of the respondent is that deposit amount of Rs. 3,000 was adjusted from 16-11-1974 up to 15-4-1977. The eviction application was not filed in 1977 but filed after lapse of about two years. It appears to me rather incredible that late Mashaikuddin, who was admittedly paying rent regularly since 15-11-1966, without any default, suddenly allowed the respondent to adjust the rent from deposit of Rs. 3,000 and thereafter himself to go for arrears for 26 months, thus inviting application for his eviction from his landlord. I feel that the non-- production of receipt by late Mashaikuddin has been given as exaggerated importance by the Controller. It is not unusual for old tenants, like those placed in the position of late Mashaikuddin, not to insist on the execution of receipts, thus avoiding to express openly lack of faith in the honesty of purpose of the respondent. The fact that last rent collected was on 13-10-1979 cannot 'be doubted, as the statement of the appellant on this point was not at all contradicted and the respondent simply met it by a vague reply that it is incorrect that the tenant had paid rent upto October, 1979.
50. 1984 CLC 265) it has held that "no rent receipts issued by landlady and her 'entire case rested on her sole oral evidence--Tenant's oral testimony regarding payment of rent to contrary supported by documentary evidence in shape of money order and cheques, there being also enmity between parties--Default, held, not proved."
51. Mr. Mirza Abdul Rashid in support of his contention placed reliance on decisions reported in 1984 CLC 1843, 1985 CLC 30, 1985 CLC 908. The propositions laid down in these decisions arc unexceptionable. In keeping with the principle enunciated in Allah Din v. Habib PLD 1982 SC 465 it has been held in the foregoing paragraphs that the burden to prove the payment for the disputed period was on late Mashaikuddin who, as has been discussed above, has discharged the burden.
52. He has successfully rebutted the respondent's allegation that he was in arrears of rent for the disputed period.
53. For correctly assessing the relative value of the oral evidence of the respondent and his witnesses and the tenant, his attorney and witnesses, the Controller has not taken into account, that, with regard to the other points in controversy, the respondent has proved himself to be a deliberate liar, and spoken several falsehood. The Rent Controller has found that the respondent had even brought into existence the letter (Ext. A/1/3) alleged to have been writter, by A.W. 2 late Mashaikuddin, for the purpose of bolstering up his false case that presented a receipt book and requested the landlord to adjust Rs. 3,000 lying deposit with him and thereafter he will vacate the shop. This was resorted with a view to make out case for default. The respondent claimed Rs. 4,818 on account of electric charges. I have already stated in earlier part of this judgment that no sub- meter was installed in the shop in dispute. The perusal of electricity bill dated 22-3-1979 shows that the charges for the month of March, 1979 were Rs. 10.02 and the amount of arrears comes to Rs.
54. 4,807.78. There is nothing on record that the amount pertains to one shop or more than one shop including respondent's premises. I have no hesitation in holding that the finding of the Controller that the tenant was guilty of default is clearly erroneous and perverse and cannot possibly be supported. The main background and the probability of the case have been ignored, the oral evidence has been misread and misunderstood, the disputed signature on the counter-foils being Nos. 156, 157, 158 and letter dated 22-3-1975 and agreement dated 22-6-1967 was wrongly held as admitted signature of Mashaikuddin, and the necessary inference flowing from the conduct of the tenant has been ignored. The finding of the Controller that letters dated 17-10-- 1978, 10-4-1979 and 12-8-1979 were despatched by the respondent. The receipt of these letters was denied. The landlord ought to have summoned the postman of were delivered to the tenant. This finding is also erroneous.
55. For all these reasons, the appeal is allowed, and the order of the Controller is set aside. The application for eviction filed by the respondent is accordingly dismissed. In the circumstances of the case, the parties shall bear their own costs.