' This appeal is directed against the order of learned IInd Senior Civil Judge and Rent Controller dated 1-2-1990 whereby he dismissed the application of the appellant Abdul Samad Hashmi moved by him under section 15 of the Sindh Rented Premises Ordinance, 1979 against the respondent.
2. Briefly stated, the case of the appellant is that he is the owner of the premises in question i.e. K.DA. Flat No,82, Site No,1/1, Sector 14-A, North Karachi Township, Karachi. He has let out the said premises to the respondent/tenant on the monthly rent of Rs,600, excluding the electricity and gas charges. On 1-12-1987, a tenancy agreement had been executed between the parties. At the time of execution of this agreement the respondent had deposited Rs,5,500 as fixed deposit with the appellant which was refundable at the time of termination of the tenancy and peaceful handing over of the said premises by the respondent to the appellant, subject to any deduction found due and payable by the respondent to the appellant. According to the appellant since the execution of the agreement dated 1-12-1987, the respondent had not paid any rent to him in respect of the said flat.
3. The respondent filed his written statement denying the allegation of the appellant of non- payment of rent since 1-12-1987. According to the written statement filed by him, he had paid rent to the appellant up to December, 1988 and the rent for the month of January, 1989 had been sent to the appellant through money order and, thereafter, the rent had been deposited regularly in the Court and, according to him, there was no rent outstanding against him. He also mentioned that appellant was in the habit of issuing consolidated receipt in respect of payment of rent. He quoted the instance of issuing only one receipt by the appellant for the rent from 1-7-1985 to 31-12-1087.
4. The appellant has also mentioned in his application that he required the premises in question for his personal bona fide use, but before the Rent Controller this issue was not pressed.
5. Now only point which requires consideration is whether the respondent had committed any default in payment of the rent as alleged by the appellant.
6. In support of their respective pleas, both the appellant and the respondent have filed their personal affidavits. The respondent, in addition, has also filed affidavits of his wife Mrs. Anjuman Ara Yaqoob and one Kamran Ansari.
7. I have heard the learned counsel for the parties and also perused the record of the Rent Application filed before the learned Rent Controller.
8. It appears that the appellant has filed his affidavit-in-evidence in support of his plea that the respondent has not paid rent since the date of execution of the tenancy agreement viz. 1-12-1987.
Learned counsel appearing for the appellant has contended that appellant has discharged his onus of proving that respondent has committed default in payment of rent for the above period and the onus was now on the respondent to prove that he had not committed any default in payment of rent and that the rent was being regularly paid by him to the appellant. In support of his contention he relied on the case of Abdul Aziz v. Syed Muhammad Afzal Shah 1990 CLC 336. I reproduce the relevant part from the said judgment which is as under:--- "Learned Rent Controller was obviously in error when he stated in the para. under Issue No,1 that the appellant had failed to discharge the burden of proving the default in payment of rent alleged to have been committed by the respondent. There are a number of reported judgments in which it has been repeatedly held that when a landlord deposes on oath that his tenant had not paid the rent for any given period of time, then the onus placed upon the landlord for proving the default stands sufficiently discharged and it is then for the tenant to prove affirmatively that he had paid the rent for the disputed period. One such judgment is reported in PLD 1982 SC 465 (Allandin v.
Habib). It is a Full Bench judgment in which it is held that non payment of rent is a negative fact which stands sufficiently proved if the landlord appears in the Court and states on oath that he had not received the rent for the disputed period and that when the landlord had done this, the burden of proving the payment of rent for this period shifts upon the tenant who must prove affirmatively that he had paid or tendered the rent."
9. In view of the fact that landlord/appellant has mentioned in his affidavit that respondent/tenant has not paid the rent to him and the authority referred to above, I also hold the view that the landlord has discharged his burden of proving this fact. Now it is for the respondent/tenant to prove that he had paid the rent and that receipt has not been issued to him.
10. Learned counsel for the respondent has submitted that respondent/tenant had paid the rent regularly to the appellant/landlord but he was in the habit of not issuing the receipts. In this connection he referred to Annexure '01' which is a receipt issued by the appellant for the period 1-7- 1985 to 12-10-1987. Appellant has not denied this fact but according to him the respondent had obtained this receipt on the ground that he had lost the earlier receipts. Anyhow, this fact would not show that the respondent had paid the rent for the period for which the default is allegedly committed by the respondent because it is the duty of the tenant to prove beyond doubt that he had paid or tendered the rent. It was also his duty to insist on the appellant/landlord to issue receipt for the period for which rent was paid by him to the appellant. Respondent/tenant has pointed out that only one receipt had been issued by the appellant/landlord for the period 1-7-1985 to 31-10-1987, and, therefore, it was actually for him to insist upon the appellant/landlord to issue the receipts and if the appellant had not listened him, then it was necessary for the respondent to take some legal action in this respect. In the case of Jabar Ahmed v. Abida Ismail 1987 M LD 114 it has been held: "The reply of the respondent in this connection was that she had been paying the rent and that the landlord had not been issuing receipts to her. She has not given any explanation for not insisting on receipts and for keeping quiet on the refusal of the appellant to issue receipts. If the tenant does not protest on the refusal of the landlord to issue receipts and keeps quiet on account of confidence that he reposes in the landlord then he has to thank himself for his conduct. The presumption in such a case would be that the tenant had not paid rent."
' In this view of the matter, the appellant cannot be said to have not issued the receipts for the period respondent/tenant has alleged to have paid the rent as the respondent has failed to prove this fact.
11. On behalf of the respondent/tenant it has also been submitted that the respondent had paid the rent through his wife, Mrs. Anjuman Ara Yaqoob and one Aftab. Affidavits of Mrs. Anjuman Ara and Kamran Ansari have been brought on record to prove this fact. Aftab has not filed any affidavit that he had paid rent to the appellant on behalf of respondent/tenant for the period of March, 1988 to September, 1988 in presence of Kamran. Mrs. Anjuntan Ara has stated in her affidavit that she had paid the rent to Mrs. Saeeda Hashmi, wife of the appellant/landlord for the period of January and February, 1988. There is no material on record to show that the appellant had authorised his wife to collect the rent from the respondent/tenant. It has been submitted on behalf of the appellant that, in his written statement, the respondent/tenant has not mentioned that the rent had been paid through his wife Mrs. Anjuman Ara Yaqoob and Aftab in presence of Kamran Ansari and, as such, no reliance could be placed on this version. The contention of the learned counsel for the appellant is correct because the respondent has not stated so in his written statement, no reliance on this version tan, therefore, be placed.
12. It has also been submitted on behalf of the respondent that the wife of the appellant had written letters to the wife of the respondent/tenant, which are available on the record as Annexures '0-2' and '0-3' perusal of which shows that no rent was outstanding as stated by the appellant/landlord.
Learned counsel for the appellant, in this connection has submitted that no such letters had been written by the wife of the appellant to the wife of the respondent. He has also submitted that, in any case, the wife of the appellant was not authorised by the appellant to write these letters to the wife of the respondent. In this respect he referred to the case reported as Dr. Salma Naasir v. Zaitoon Khatoon and 5 others 1986 CLC 720. Relevant part from the said judgment is reproduced as under:- -- "There is no agreement on record to show that Khalilur Rehman being the husband was appointed as an agent of the respondent nor Mr. Saeed has been able to produce any provision of law that by virtue of marriage they became agents of each other."
' There is no material on the record to show that appellant had authorised his wife, Mrs. Saeeda Hashmi to write such letters to the wife of the respondent on his behalf. It is, therefore, clear that above-described letters, even if have been written by the wife of the appellant, are of no consequence and cannot advance the case of the respondent in any manner.
13. In view of what I have said above, I am of the opinion that respondent had not paid the rent for the period for which default is alleged to have been committed by him in payment of rent to the appellant/landlord. I, therefore, accepting the appeal, set aside the judgment of the learned Rent Controller impugned herein. The respondent/tenant is directed to vacate the premises in question and hand over vacant and peaceful possession thereof to the appellant/landlord within a period of three months. The appeal is accordingly allowed with costs.