' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order, dated 5-4-1988 passed by Mr. Syed Gul Muneer Shah, IInd Senior Civil Judge and Rent Controller (East), Karachi, by which he had dismissed the application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondent on the following grounds:---
(i) Default in payment of rent,
(ii) Infringement of terms and conditions of the tenancy by encroachment and conversion of bath room into a store, and,
(iii) Personal bona fide need.
2. The appellant is the owner of commercial plot of land bearing No.48-D, Block No.6, P.E.C.H.
Society, Karachi. A sizable shop together with Mezzanine Floor, having lavatory, bath room was constructed among others on this plot of land. This shop was leased out to the respondent company in the year 1962 under an oral agreement on consideration of the payment of monthly rent at Rs,325, excluding water, conservancy and electricity consumption charges. It is alleged that the respondent defaulted in payment of rent with effect from June, 1984 to August, 1984, who sent a sum of Rs, 975 describing it as advance rent for unspecified three months, through money order which was received on 28-8-1984. It is also the case of the appellant that the respondent failed to pay or tender rent for the months of September, 1984 to December, 1984. It is alleged that the respondent who were let out the disputed shop only excluding mezzanine floor and lavatory which were surreptitiously encroached upon and utilised by them. The employees of the respondent had also allowed the hawkers and Pathariwala to occupy the arcade provided in front of the shop who were carrying on the business of polishing and storage of materials of wooden furniture etc. for which they were charging handsome amount. The said shop was also needed by the appellant for the expansion of business. On 20-1-1985 the appellant filed an application for the eviction of the respondent, through his attorney Shahid Hussain Malik, on the aforesaid grounds.
3. The respondent controverted the allegations based on facts. According to the written statement filed by the respondent the procedure for payment of rent was as follows:---
(i) The respondent would tender rent in cash.
(ii) The appellant would execute a Singer pro forma receipt in favour of respondent.
(iii) The pro forma receipt would bear the signature of the appellant.
' The aforesaid procedure continued without any break till 1978, when the present attorney of the appellant was brought on the scene. The said attorney agreed to continue the same procedure, but in order to create a default, he refused to accept the same and consequently the rent was tendered through money orders. It was also pleaded by the respondent that in the year 1984 the attorney requested the payment of rent in cash and he proposed that the same should be given to the Manager of his cane furniture shop which was close to the disputed shop and in the above manner the rent for the months of June, July and August, 1984 was tendered in cash. In the month of September 1984 another attempt was made to avoid to accept the rent and consequently the respondent started tendering the rent through money orders. In short the defence of the respondent is that during the period of tenancy, which spans over a quarter of century, no default was ever committed and the appellant had no cause of grievance at any time. The respondent also disputed the rest of the allegations made in the application for eviction. They have also questioned the bona fide requirement of the appellant to use this shop.
4. The parties went to trial on the following issues:---
(i) Whether opponent has committed wilful default in payment of rent as alleged by the applicant?
(ii) Whether the opponent has infringed the conditions of tenancy?
(iii) Whether the applicant requires the demised premises for his personal bona fide use?
(iv) What should the order be?
5. The appellant examined his attorney, namely, Shahid Hussain Malik (P.W.1), and then closed the side. To rebut this evidence the respondent tendered evidence through Muhammad Aqiluddin (D.W.1), Muhammad Iqbal Choangalia (D.W.2) and Muhammad Rafi (D.W.3). On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided all the issues against the appellant and consequently dismissed the application filed by him seeking the eviction of the respondent from the disputed premises. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. Shaikh Aziz-ur-Rehman, learned counsel for the appellant and Mr. Kazim Hasan, learned counsel for the respondent. I have also gone through the record of this case carefully.
7. During the course of arguments, the learned counsel for the appellant has not pressed issues Nos.2 and 3 and has confined his arguments to the issue of default only. Shahid Hussain Malik (P.W.1), who is the attorney of the appellant has testified about the defaults in payment of rent for the months of June, July and August, 1984, by stating that the respondent did not pay or tender rent to him for the aforesaid period. He has alleged that the receipts (Exh.C/6), (Exh.C/7) and (Exh.C/8) relating to these three months are forged ones. The evidence of Shahid Hussain Malik, the attorney of the appellant (P.W.1) is not clear about the period of alleged default. Para 7 of the application for ejectment shows that the default was for the months of June to August, 1984. In para 8 of the application for ejectment the default alleged is as under:--- "That the opponent ignoring the notice served upon them by the applicant failed to pay the monthly rent for September, October, November and December, 1984 and had committed wilful default. The opponent have sent a money order on 5-1-1985 as rent for January, February and March, 1985."
8. With regard to the disputed receipts (Exh.C/6), (Exh.C/7), and (Exh.C/8), the attorney has simply said that they were forged receipts and do not bear his signatures. He was, however, confused about his signatures. He claimed that he does not sign as "Shahid Hussain Malik", but sometimes initials as "Shahid". However, he did not deny that he does not sign as "Shahid Malik". It may be added that the above receipts (Exh.C/6 to Exh.C/8), which Shahid Hussain Malik (P.W.1) alleges as forged ones, were signed as "Shahid Malik".
9. To rebut this inconsistent and sketchy evidence of Shahid Hussain Malik, the attorney of appellant (P.W.1), the respondent have examined Muhammad Aquiluddin, the Manager, Legal Affairs (D.W.1), Muhammad Iqbal Chongal, Assistant Manager (D.W.2) and Muhammad Rafi, Manager (D.W.3). Muhammad Aquiluddin (D.W.1) has produced the disputed receipts (Exh.C/6 to Exh.C/8). He has also produced the money order receipt (Exh.C/9) towards the rent of September, 1984 to November, 1984. The money order receipt (Exh.C/10) produced by Muhammad Aquiluddin (D.W.1), relates to the month of December, 1984. It is thus clear that there was no default in payment of rent for the months of September, 1984 to December 1984, as alleged in para 8 of the application for ejectment. It was obviously for this reason that the appellant alleged default with effect from June, 1984 to August, 1984 in memo of his appeal filed before this Court.
10. Muhammad Rafi, Manager (D.W.3) has clarified about the payment of rent for the months of June to August, 1984 in para 4 of the affidavit-in evidence, which reads as follows:--- "I say that the procedure for payment of rent was as follows:-- ' The applicant would be given the monthly rent alongwith the standard pro forma Singer receipt which is utilised for most of the retail shops which are on rent. The rent amount and receipt would be given to the Manager of the shop of Mr. Shahid Hussain Malik, which was near the case premises. The receipt would be returned duly signed. This procedure was adopted until month of August, 1984, after which there was a refusal to accept rent in cash. This refusal was due to the fact that the applicant wished to create a default in the payment of rent. However, the opponent company pre-empted situation and defeated the mala fide intentions of the landlord by immediately sending rent by money order. The money order receipts have been filed with the written statement."
11. Muhammad Iqbal Choangalia, Assistant Manager (D.W.2) was the person who had actually tendered rent. Paras. Nos. 3 and 4 of his affadavit-in evidence are relevant and for the sake of convenience are reproduced below:--- "I say that the rent for the case premises was tendered through money order. However, from June, 1984, rent was paid to Mr. Shahid Hussain Malik in cash at his request.
' I say that I was deputed to take the rent in cash to the shop of Mr. Shahid Hussain Malik, and tender it to his Manager there. This was done under the instructions of Mr. Shahid Hussain Malik. The shop of Mr. Shahid Hussain Malik was doing business in cane furniture. The Manager would take the cash and the standard Singer pro forma receipt duly filled in beforehand. The Manager would return it subsequently signed."
12. Nothing is brought out in the cross-examination of these three witnesses to shake their credence. There was no reason for an international reputed company like the respondent to have forged these receipts. In fact the relations between the appellant and the respondent were cordial which is evident from the following extract of the letter of appellant (Exh.A/1) addressed to the General Manager, Singer Sewing Machine Co., Karachi:--- "I am obliged for the kind cooperation of the company and I had never experienced any difficulty relating to my rents, which were paid to me regularly."
13. There is also no dispute that during all this period of tenancy there was not a single default committed by the respondent prior to the appointment of Shahid Hussian Malik (P.W.1), as attorney.
As indicated in para 8 ante, the attorney puts his signature as 'Shahid' and as "Shahid Malik" on the receipts. One of the receipts on money order coupon dated 16-4-1978 bears the signature of attorney as 'Shahid', which signature if compared with the disputed signatures on (Exh.0/6 to C/8), makes it clear that all such signatures are put by one and the same person.
14. Again there is bare allegation of forgery without any proof. The burden of proving forgery is a heavy one and lies on him who alleges it. If any authority is needed the case of Mir Ghaus Bakhsh Bizanjo v. Chief Election Commissioner of Pakistan and 2 others, reported in PLD 1969 Karachi 662, may be cited with advantage. In this case a Division Bench of this Court observed that forgery is a plea which, like fraud and misrepresentation cannot be taken into consideration unless its particulars are set out. No effort was made by the appellant to prove forgery of the receipts (Exhs.C/6 to C/8), and it appears that Shahid Hussain Malik, the attorney of the appellant has in fact planned for some time to put up a false case of default against the respondent. In view of such an attitude of Shahid Hussain Malik, the attorney of appellant, I am clear in my mind that there was no default on the part of the respondent and issue No.1 was rightly decided by the Rent Controller.
15. In the result the appeal fails and is dismissed with costs.