1. ' Appellant Mohammad All Tehrany has filed this appeal under section 24 of the Cantonments Rent Restriction Act (hereinafter to be mentioned as the Act) against an order dated 12-2-1991 passed by the Additional Controller of Rents, Clifton Cantonment, Karachi in Rent Case No,69 of 1988.
2. ' Admittedly the appellant is tenant of respondent Mst. Fozia Akhtar All in the flat in litigation, which is part of second floor of a multi-storeyed building built on Plot No,15-C of Defence Commercial Area "A" in Defence Housing Authority, Karachi, and owned by the respondent. Rent of the flat in litigation was Rs,1,500 p.m. As per the respondent and Rs,800 p. m. As per the appellant Rent Application No,69 of 1988 was filed by the respondent for eviction of the appellant from the flat in litigation on the grounds (i) that the respondent genuinely needed the said flat in good faith for her use and for use of her family, (ii) that the appellant had defaulted in payment of rent for five months commencing with January 1988, (iii) that the appellant alongwith Abdul Basit Mehta and Abdul Razak Mehta lessee and sub-lessee respectively of the respondent, had put obstacles in way of the respondent for adding third story and a shop to her said building by (a) removing away 600 cement blocks of the respondent, (b) by getting closed an opening in a wall of the building which was made to make room for an additional shop, and (e) by reconstructing servant quarters on roof of the building after the structure over there was got demolished by the respondent. In this way the appellant persistently hindered additional construction planned by the respondent and interfered with respondent's improvement and management of her property as further alleged.
3. ' The rent application was contested by the appellant who in his written statement challenged jurisdiction of the Additional Controller of Rents Clifton Cantonment to try the matter. Respondent was alleged to have contravened the terms and conditions of the lease agreement and to have changed the rented premises. Appellant took exception to the fact that the rent application did not contain clause about cause of action, clause about jurisdiction and clause about payment of stamps. The grounds taken for eviction of the appellant were controverted. Appellant claimed to have paid rent for January 1988 to December 1988 in cash to the respondent who had not issued any receipt in accordance with the past practice. Appellant alleged that the respondent wanted to put third storey of the building and add more shops in disregard to the convenience of her tenants without considering the inconvenience and nuisance which would be caused to her tenants in said building. Appellant further stated that he never interfered with improvement and management of the property in question and had not pilfered away 600 cement blocks.
4. ' Under an order dated 28-1-1989, learned Rent Controller dealing with the legal objections, took view that he had jurisdiction in the matter and that defects pointed out in the rent application were of technical nature and as the provisions of Civil Procedure Code were not applicable to the proceedings under the Act it was discretion of the Rent Controller to adopt any measure in the interest of justice. By taking such view the trial Court declined to dismiss the rent application on technical grounds and disallowed the legal objections raised by the appellant. After recording evidence of the parties learned Rent Controller under the impugned order dated 12-2-1991 accepted the rent application and ordered eviction of the appellant from the premises in litigation within 45 days of the order. Hence this appeal.
5. ' Mr. Rashid Tariq Khan learned counsel for the appellant argued that rent receipts were never issued when rent was realized on behalf of the respondent. It was next pointed out that husband of the respondent was in U.SA. And he could not realize rent on behalf of the respondent regularly. It was also argued that the rent was being collected in lump sum for six to twelve months and that the purpose of filing rent application was to get the appellant evicted and then sell the property in question because the respondent wanted to settle in USA where her husband was living. It was also argued that no power of attorney was filed by the respondent with her rent case. In respect of evidence of Nafees Ahmad, Chief Manager, Habib Bank, Club Road Branch, it was argued that cheque for Rs,13,200 was issued by the appellant in favour of the respondent in respect of some other transaction. It was next argued that the issues found against the appellant were not supported by any evidence and even the rent application was premature and that the rent was being paid and collected at convenience of the parties. As regards rate of rent, it was contended that the same was Rs,800 per month.
6. ' Mr. Sabir Ansari learned counsel for the respondent argued that it was established through evidence of Syed Akhtar Ali attorney of the respondent that rent was not paid by the appellant for January 1988 to April 1988 and that in the written statement it was not pleaded if accumulated rent was being paid to the respondent. Learned counsel for the respondent conceded that there was no proof if rent was raised to Rs,1,500 p.m except that it was so mentioned in the letter dated 15-7-1987 copy ExhAC. Learned counsel dismissed the plea that the cheque of Rs,13,200 was issued in favour of the respondent as loan posed a question, as to why the respondent who was mentioned by the appellant to be a wealthy lady would take loan and secondly why she should take the amount in an unrounded figure. Replying to the objection about absence of the power of attorney, learned counsel for the respondent was of the view that party can examine any body as a witness without executing power of attorney in his favour and that the landlady did not enter into the witness-box because she was a lady although she had signed the rent application: In respect of the grounds of personal requirement it was argued on behalf of the respondent that she had grown up daughters and that all her members of the family were living in one room and there was genuine need for the permises in litigation. In support learned counsel for the respondent cited the cases of:
(i) Khadim Mohyuddin and another v. Ch. Rahmat Ali Nagra and another (PLD 1965 SC 459).
(ii) Khawaja Saidur Rahman and another v. Wajihuddin H. Memon and another (1984 CLC 2324).
(iii) Muhammad Shafi Dad Khan v. Hassan-ul-Azmi (1983 CLC 2238), ' In support of her case respondent filed affidavit of her husband Syed Akhtar Ali and examined Nafees Ahmed Khan of Habib Bank Limited. On the other side appellant filed his own affidavit.
7. ' As regards the rent of the disputed premises Syed Akhtar All stated in his affidavit-in-evidence that the appellant was tenant of the respondent in the demised premises at a rent of Rs,1,500 per month exclusive of the charges for water, electricity and gas consumed and also the proportionate conservancy charges. Akhtar Ali denied if rent of the demised premises was Rs,800 per month. In his cross-examination Akhtar Ali admitted that the premises in litigation were rented out at the rate of Rs,800 per month in the year 1976 when such lease agreement was executed. He however added that the rent was enhanced gradually to Rs,1,500 over the next twelve years, 0 although he admitted that there was no subsequent lease agreement between the parties. Akhtar Ali admitted in cross-examination that he had not produced any evidence to show that the rent was increased to Rs,1,500 except letter dated 15-7-1987 ExhA.C. He stated in cross-examination that he did not want to take as ground for default non-payment of water and conservancy charges by the appellant. In this situation claim of the respondent that rent of the demised premises was Rs,1,500 has not been sufficiently proved. In the letter dated 15-7-1987 ExhA.0 the respondent has written to the appellant that she was getting Rs,1,500 from the appellant as rent as against Rs,6,500 which she was paying as rent for a house obtained by her on lease. Under this letter respondent called upon the appellant to vacate the premises at his earliest convenience. In his cross-examination appellant Muhammad All admitted having received said letter from the respondent wherein it was said that he was paying rent of Rs,1,500 to the respondent. Appellant admitted that he had not replied the letter Exh. A.C. This however would not amount to an admission by the appellant that rent of the premises was Rs,1,500 per month. The theme in the letter ExhA-C was about eviction of the disputed premises and not about the rent being Rs,1,500 or Rs,800. Admittedly the disputed premises were rented out to the appellant under a lease agreement at the rate of Rs,800 p.m. As admitted by Syed Akhtar Ali. Rent of the same could not have been increased by the respondent unilaterally. There is no evidence to show if the rent was increased under some mutual arrangement or agreement. The respondent has been able to prove through Nafees Ahmed, Chief Manager, Habib Bank Limited, Club, Road, Karachi, that on 6-2-1985 appellant issued a cheque of Rs,13,200 in favour of the respondent and that amount of the cheque was cleared on 10-2-1985. The amount covered by the cheque may have been paid as rent for a particular period but this would not determine the rate of rent. Learned counsel for the appellant argued that amount of the said cheque was paid by the appellant to the respondent as a friendly loan. This plea was taken by the appellant in para. 11 of his affidavit-in-evidence but not in his written statement. Appellant admitted in cross-examination that respondent was wealthy woman. As a wealthy woman respondent could not have taken loan from the appellant. According to learn counsel for the respondent the amount of the cheque was paid by the appellant to the respondent as rent of the disputed premises for the year 1985 at the rate of Rs,1,100 per month. Such question when put to the appellant was denied by him. Mere fact that Rs,13,200 were sent by appellant to the respondent through cheque does, not mean that it was on account of rent for 1985 at the rate of Rs,1,100 per month. In this way claim about the rent being Rs,1,500 has not been made out.
8. ' In respect of the question of default in payment of rent Syed Akhtar All said in his affidavit-in- evidence that the appellant had not paid rent since January 1988 till the date of filing of rent case which was 14-5-1988. On the other side appellant Mohammad Ali claimed in his affidavit-in- evidence that he had paid rent for January 1988 to December 1988, in advance at the rate of Rs,800 per month, but no receipt was issued to him. Appellant stated that rent for January 1989 to December 1989 was also sent by a money order but the same was refused. That the rent amount was being deposited in the Court which has permitted the respondent to withdraw Rs,800 p.m.
9. From the amount deposited as rent. Appellant produced photo copy of a money order Annexure 0- 2 and photo copy of a letter showing Annexure 0-3 that he had remitted to the respondent a money order of Rs,9,600 but the same was received back. Appellant did not examine concerned Postman to prove that delivery of the money order was refused by the respondent. In the case of Khair Muhammad v. Akhtar Hussain (1983 CLC 302) an envelope containing a notice with postal endorsement "Refused" was produced in evidence but the addressee stated in Court on oath that such envelope was never offered to him by the Postman and the view taken was that it was necessary for the person relying on the service of notice to have called the concerned Postman and proved the endorsement of "Refused" by primary evidence. Said case was followed in the case of Shamsher v. Ahsan Ali (1983 CLC 308) where the tenant produced money order coupons to show that certain money orders were sent to the landlord who refused their delivery. The landlord appeared before the Court with statement on oath that the money orders in question were not offered to him. In the circumstances the view taken was that the tenant can discharge burden to prove that the money orders were refused, only by calling the Postman concerned. In the case of Syed Khadim Abbas Rizvi v. Miss Gohar Fatima (1984 CLC 2449) the view taken was that burden lay on the tenant to examine the postman concerned to prove his contention that the landlord had refused to accept the money order. Similar view was taken in the case of Sabze Ali v. Mehmood Rizvi (1989 M LD 1427) where the tenant denied default in payment of rent with plea that he had been sending rent through money orders but failed to examine Postman or witness who signed coupons attesting receipt of money orders and in the circumstances finding about default in payment of rent was upheld. In the present case too no postman was examined to establish that the respondent had declined to accept delivery of a money order of Rs,9,600. In view of this refusal to take delivery of the money order was not proved.
10. ' In his cross-examination Syed Akhtar All husband and attorney of the respondent stated that he used to collect the rent in lump sum for six months or for one year in advance. He claimed to be issuing receipts to the appellant but did not keep any counterfoil. Akhtar Ali explained that in his letter dated 13-8-1987 to the appellant, he had not mentioned about default in payment of rent because the default occurred in January 1988. Akhtar All admitted that the appellant had been paying the rent regularly in terms of the lease agreement and subsequent understanding between the parties. He denied if the respondent had collected the rent for the period January 1988 to December 1988.
11. ' In his cross-examination the appellant spoke of the lease agreement between him and the respondent having been executed in 1976 when rent was fixed at Rs,800 per month. He admitted that he used to pay rent in advance for one year or six months in cash. Appellant admitted in cross-examination that he did not have any evidence in confirmation of payment of rent in advance for the year 1988 because the respondent never issued any receipt since inception of the tenancy. Appellant admitted that he never issued any notice to the respondent to issue him rent receipts but he told her verbally. The appellant did not examine any other witness to support him on the question of payment of rent. Even Abdul Bask another tenant of the respondent was not examined.
12. ' A somewhat similar situation arose in the case of Allandin v. Habib (PLD 1982 SC 465) where 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 Sindh 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.'
13. ' In the same authority reference was made to the case of Mst. Qaiser Khatoon and others v. Abdul Khalique and another (PLD 1971 SC 334) where it was held that the question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion and in such an event the rule is that the party on whom onus lay must fail. In the present case the initial onus about default in payment of rent was discharged by the evidence of Syed Akhtar Ali attorney and husband of the respondent. The appellant has not been able to discharge the onus which shifted on him to prove affirmatively that he had paid tendered the rent for the period in question 'even at the rate of Rs,800 p month.
14. ' In respect of the ground of personal requirement Syed Akhtar Ali stated in his affidavit-in- evidence that previously the respondent lived with her family in House No,71, 5th Street, Phase 5, Defence which was subsequently sold due to need of money. That the respondent was currently living with he family in a rented House No,26-B, 9th Central Street, Phase-2 Defence and paying rent of Rs,6,500 per month since January 1987. Akhtar Ali added that the respondent was finding it hard to pay rent of Rs,6,500 per month besides Rs,500/600 for water and other taxes and hence she wanted to live in her own house and needed the same in good faith. Akhtar Ali produced the lease agreement about having taken on rent House No,26-B. Said lease agreement is however in the name of Akhtar Ali and not in the name of the respondent, who is his wife. As against this the appellant stated in his affidavit-in-evidence that the respondent had several properties in the locality which were suitable for her, but which had been given on rent. He added that the respondent was a wealthy landlady who constructed and sold properties to increase her financial status and that she was not living in rented premises. Appellant denied if the premises in litigation were required by the respondent honestly and genuinely in good faith. Akhtar All was subjected to a lengthy cross-examination, where he stated that he did not have any house at Karachi. Akhtar Ali however, stated that he had rented out House No,71 for 3 months in the year 1986 at the rate of Rs: 40,000 p.m. And that he stayed for said period of three months in Defence Club. Akhtar All admitted that in his letter dated 13-8-1987 to the appellant, he had not mentioned the ground of personal requirement. He admitted that in a meeting held on 3-10.1986 with the appellant, he had not demanded eviction of the premises for default or for personal use because at that time no default had occurred and the premises were not required. In this way evidence of Akhtar Ali has not been shattered during his cross-examination.
15. ' In his cross-examination, appellant admitted that when the rent application was filed the respondent was living in rented premises. He also admitted that the respondent had sold House No,71 after giving it on rent at the rate of Rs,40,000 per month. He also admittedThat the respondent lived in H.No,71 when the premises in litigation were rented out to him. Appellant admitted that under the letter dated 15-7-1987 Exh.A-C he was informed by the respondent that she had sold her personal residence but he did not reply said letter. Appellant admitted that the building in litigation had two flats one of which was in his possession and other was occupied by Abdul Basit. Appellant admitted in his evidence that he owned a flat which he had rented out at Rs,800 per month. The evidence of Akhtar Ali has not been rebutted by E evidence of the appellant on the point of bona fide personal requirement.
16. ' In respect of the technical objection raised in written statement, learned counsel for the respondent cited three authorities. In the case of Khadim Mohyuddin and another (PLD 1965 S.C.
17. 459) it was held that under section 16 of West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller has been given powers "of summoning and enforcing the attendance of witnesses and compelling the production of evidence etc." he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. It was also held that in the cases under the said Ordinance, where the Controller has been given powers to make orders after holding such inquiry as he thinks fit, the nature of such enquiry has again been left to him. Said case was followed in the case of Khawaja Saidur Rehman and another v. Wajihuddin H.Memon (1984 CLC 2324) where it was held by a D.B. Of this Court that proceedings under the West Pakistan Urban Rent Restriction Ordinance are of quasi-judicial or administrative nature and that the provisions of the Code of Civil Procedure are not applicable in terms to such proceedings. In the case of Messrs Bambino Ltd. v.
18. Messrs Selmor International Ltd. And another (PLD 1983 S.0 155), it was held that although the Code of Civil Procedure was not applicable in terms to the proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. In the present case the rent application has been signed by the respondent but the affidavit-in-evidence in support of the rent application has been signed by her husband who appeared as her witness. All this was admitted by the appellant in his cross-examination. He also stated that copy of power of attorney was filed by respondent's attorney, as Exh. A-A. In this way the main legal objection stands complied with. Rest of the objections about absence in the rent application of specific words showing the cause of action, the jurisdiction clause and stamp fixation clause are of no weight as the main facts making out case for eviction have been pleaded.
19. It would not be useful to enter into the controversy about alleged theft of Cement Blocks and raising of third storey by the respondent and alleged acts of the appellant and Abdul Basit because no eviction was sought on the ground of reconstruction of the premises. Any interference in the management and improvement of F the property is not recognised as a ground for eviction, under the Ordinance.
20. ' In view of my above findings, the impugned order is maintained and the appellant is given a period of three months to surrender peaceful possession of the premises in litigation to the respondent or else he would be forcibly ejected from the disputed premises without being given any notice. The appeal stands decided in these terms with no order as to costs.