MUKHTAR AHMED JUNEJOJ.- This is tenant's appeal against the order of ejectment dated 31.1.1989 passed by the IIIRD Senior Civil Judge and Rent Controller Karachi (Central) in Rent Case No.606/88.
2. Parties in their pleadings were agreed that the shop in litigation mentioned in paras 1 and 2 of the Rent Application was rented out by the respondent to the appellant on 15.5.1979 on rent of Rs.400/- per month. Subsequently there was another rent agreement dated 13.3.1985 between the parties where by rent of the demised premises was fixed at Rs.650/- per month.
3. Rent Application No.606/88. (old No.1292/86) was filed by the respondent for eviction of the appellant from the demised premises, on the grounds of default in payment of rent, bona i.e personal requirement and impairment of the value and utility of the premises. Default in payment of rent was alleged from January 1986 till September 1986, and the rent application was filed on 26.10.1986.
3. The case was contested by the appellant, who in his written statement denied being defaulter in payment of rent. The other grounds taken for eviction were also contested and were terms as dishonest and malicious.
4. After allowing the parties to lead their evidence and hearing them, learned trial Court under the impugned judgment dated 31.1.1989 found that the ground of default in payment of rent was proved, while the other grounds were not proved and since the appellant was held to be defaulter in payment of rent for the disputed period, hence his eviction was ordered and the rent application was accepted. Hence this appeal.
5. Mr. Aftab A. Khan, learned counsel for the appellant argued that conduct of the respondent in the past required to be noted because she had been pressurising the appellant to increase the rent. It was next argued that earlier the respondent had filed Rent Case No.3204/82 against the appellant on the grounds of personal requirement and default for the period from June 1979 till August 1982 but subsequently the plea of personal requirement was withdrawn and ultimately the rent case was compromised and in consequence the respondent as paid a sum of Rs.6000/-, in consideration of which she had executed the receipt, copy Ex.0/9. Learned counsel for the appellant further argued that in June 1986 the appellant had sent by money order Rs.600/- as rent to the respondent, vide postal receipt Ex.0/10 but said money order was refused. It was added that the appellant had been depositing the monthly rent in MRA 1082/86 with effect from 1986. Learned counsel referred to cross-examination of the respondent, who admitted that she never issued any rent receipt to the appellant and that she had taken from the appellant Rs.2,500/- as advance.
Attention of the Court was also invited to the fact that in her cross-examination the respondent had denied having previously filed Rent case No.3204/82, which was subsequently withdrawn. It was further argued that the onus was on the respondent to prove the issue of default, Which she had failed to prove. In support learned counsel for the respondent cited the cases of Allah Din vs Habib (PLD 1982 S.C. 465), Mst. Faiyazi Begum vs Zakiuddin (NLR 1984 Civil 96), Habib Ahmed vs Liaqat Hussain (PLD 1985 Kar 741) and Mst. Begum Jan vs Abdul Rasool (1984 CLC 755).
6. Mr. A. Aziz Khan, learned counsel for the respondent referred to ra 3 of the Rent Application, where it was mentioned that the agreed rate of nt for the premises in litigation was Rs.650/- per month and that the appellant fully failed to pay rent to the respondent/landlady since January 1986.
Learned counsel for the respondent also relied on the case of Allah Din (PLD 1982 SC 5) and argued that after discharge of initial onus by the respondent that she had received rent for the period from January, 1986 to September 1986, the onus lifted to the appellant to prove that he had paid the rent for the said period, learned counsel for the respondent also cited the case of Khadim Hussain Abdl Mst. Geti Ara (PLD 1986 Kar 184). It was further argued that had the appellant been paying the rent for the disputed period without getting receipts, he would not have sent money order of Rs.600/- to the respondent in June 1986 learned counsel for the respondent concluded by asserting that case against the appellant about his having defaulted in payment of rent was fully established.
7. In her affidavit in-evidence on oath, respondent Mst. Bundu Hajjan ted that the appellant had committed wilful default in payment of monthly rent ce January 1986. In her cross-examination, the respondent stated that the appellant was her tenant for seven years and prior to that the demised premises re on rent with a Hotelwala who used to pay her rent at the rate of Rs.300/- r month.
Respondent admitted in her cross-examination that she never issued / receipt to the appellant, who did not pay her rent for 25 months. She also admitted that the appellant paid her Rs.2,500/- as advance at the time of pre-emption of the tenancy. If the respondent was not issuing the rent receipts to the reliant, there can be no evidence with the appellant to prove that he paid rent the disputed period, except his oral assertion. In all fairness the lady/respondent should have maintained certain accounts to show as to, for ich months the rent was paid or in which month the rent was not paid. This has been done. In his affidavit in evidence, the appellant asserted on oath that it 5 usual practice with the respondent not to issue any receipt for the rent, appellant claimed to have deposited monthly rent in Court in MRA No.1082/86 October 1986 on -wards. Such conduct of the appellant gives credibility to his 1 version about having paid the rent for the disputed period.
There is :mentary evidence on record to show that prior to this the respondent/landlady had filed Rent Case No.3204/82 (Copy Ex.0/2), against the )appellant for eviction, on the grounds of default in payment of rent from June 9 onwards, and for personal requirement. In said rent case the appellant filed the statement copy Ex.0/3. In said case the learned Rent Controller passed an cr Copy Ex.0/4 on 7.11.1982, directing the appellant to deposit arrears of rent n June 1979 to November 1982(40 months), at the rate of Rs.400/- per month before 8.12.1982. In said case the respondent moved an application, copy Ex.0/5 on 22.1.1983 to the effect 'hat she was withdrawing the ground of personal requirement. Said application was compromised between the parties and such compromise application, Copy Ex.0/1 was filed in Court of the' Rent Controller and one of the terms of the compromise was that the respondent shall be entitled to receive from the appellant Rs.4800/- as rent for the period April 1982 to March 1983 at the rate of Rs.400/- per month. As against that the appellant paid to the respondent Rs.6000/- under a receipt copy Ex.0/9, executed by the respondent, and this shows that the appellant has been always willing and ready to pay the rent to the respondent/landlady.
8. In spite of the documentary evidence in support of the previous rent application discussed above, the- respondent in her cross-examination denied if she filed any ejectment case against the appellant before filing Rent Case No.606/88.
9. In the case of Allah Din vs Habib (PLD 1982 SC 465) the parties entered into a written rent deed dated 17.11.1962 which inter alia stipulated that the tenant shall pay rent at monthly rate of Rs.80/- to the landlord regularly every month for which he will either obtain a receipt or an endorsement on the rent deed. Said rent deed was continued by means of a subsequent agreement dated 29.3.1964 which substantially incorporated the same terms except the stipulation with regard to the manner of obtaining receipt for the payment which was omitted. On 5.5.1970 the landlord filed application for ejectment of the tenant oh ground of non-payment of rent since May 1969. The tenant denied the allegation and contended that he had always regularly paid rent but he was never granted any receipt of payment as it was not customary with the landlord and the parties were having this relationship for the preceding six years. In presence of such facts it was held that mere non-production of receipts by the tenant did not necessarily raise the presumption that he had not paid the rent. On the question of onus of proof it was observed as below: "It is no doubt correct to say 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 nonpayment 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".
However, in the instant case the respondent/landlady did not produce any receipt book and this makes the present case distinguishable from the cited case. In the case of Khadim Hussain (PLD 1986 Kar 184) the view, taken was that the burden of proving that the tenant had not paid the rent was sufficiently discharged by the landlord stating on oath that rent was not paid for a particular period and then burden shifted on the tenant to disprove such fact by producing the receipt or other evidence. For taking such view reliance was placed on the case of Allah Din vs Habib (PLD 1982 SC 465) which has already been discussed and differentiated. Even in the case of Khadim Hussain (PLD 1986 Kar 184) it was observed that under Section 10(2) of the Sindh Rented Premises Ordinance the landlord is under obligation to acknowledge the receipt of payment of rent in writing and it was also duty of the tenant to obtain receipt for the same to avoid any future dispute, as regards payment thereof. In the case of Mst. Faiyazi Begum etc vs Zakiuddin (NLR 1984 Civil 96) a learned Judge of this Court took view that if the landlord is unable to produce documentary evidence in support of his stand that he has been issuing receipts to his tenant, 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 that case the sole statement of the landlord may not be sufficient to prove the default. In said case the landlord was held to have failed to establish the initial burden in absence of the evidence that he had been regularly issuing the receipts and in absence of any independent witness to support him. In the case of Habib Ahmed vs Liaquat Hussain (PLD 1985 Kar 741) the view taken was that since the parties were at variance over the question of the default, the burden was on the tenant to prove that he had actually paid the rent for the disputed period. For taking such view reliance was placed on the case of Allah Din vs Habib (PLD 1982 SC 465). It would be relevant to quote following portion from the judgment in the case of Habib Ahmed (PLD 1985 Kar 741): " Since the respondent has not cared to issue rent receipts in compliance with the mandatory requirement of law, he cannot insist upon the appellant to prove the payment by normal practice of producing rent receipts. In that case the oral statement of the appellant which is on oath has to be accepted unless it is shown to be untrustworthy and unreliable"
The case of Begum jan (1984 C.L.C. 755) was in respect of bona i.e personal requirement and it is not applicable to the present case.
11. In the light of the cases law, discussed above, and on the basis of facts, I am of the view that the respondent had not been able to discharge the initial mus of proving that the appellant had defaulted in payment of rent, as she never issued any rent receipt and did not produce any book of account to show that rent or a particular month was not paid to her. Moreover, she had received an advance of Rs.2,500/-, which could be adjusted towards the monthly rent if there vas any default. Further-more the respondent did not come to the Court with Lean hands, as she suppressed the fact that previously she had filed rent case for eviction of the appellant. While taking such view, I accept this appeal and set-aside he impugned judgment and al of the rent case, with no order as to costs.