1. ' This First Rent Appeal is directed against the order, dated 11-7-1988 passed by the First Senior Civil Judge and Rent Controller, Karachi East, whereby allowing the eviction application filed by the respondent and directing the appellants to hand over peaceful vacant possession of the premises in question to the respondent/landlady within 30 days from the date of the order.
2. ' The facts leading to the filing of the above appeal are that the respondent is owner and landlady of a House No.H-66/4 on a plot measuring 80 square yards situated in Malir Colony, Karachi, duly fitted with gas, water and electricity lines. During the month of March, 1982 or thereabout the appellant No.1 through one Mst. Farmoodi Begum approached the respondent to take aforesaid house of the respondent on monthly rent. Appellant No.2 is husband of appellant No.1. Accordingly she rented out her said house to the appellant No.1 with effect from 1-4-1982 at a rent of Rs,40 per month exclusive of gas, water and electricity charges. The appellant used to pay monthly rent to one Mistri Siraj Hussain. She was never regular in payment of monthly rent. However, she paid the monthly rent up to the month of March, 1985. The respondent filed the eviction application against the appellants on the ground that the appellant has committed default to payment of monthly rent, gas and water charges and changed it from residential to commercial premises. The appellants contested the eviction application by filing written statement. They denied the allegations of default and conversion of the premises in question from residential to. commercial.
3. The appellant No.2 tendered rent through money order for the month of May, 1985 which was accepted by the respondent as being 'the genuine, agreed, real and the actual rent.
4. ' The respondent filed her own affidavit-in-evidence in support of the eviction application besides the affidavits-in-evidence of Mistri Siraj Hussain, Qaiseruddin and Mst. Farmoodi Begurn;The appellants Nos.1 and 2 filed their own affidavits in rebuttal. They were cross-cxamined by the learned' counsel appearing for the respective parties. From the pleadings of the parties, the following issues were settled by the Controller:--- "(1) To whom the case premises was let out? {2) What is the rate of the rent?
(3) Whether the opponent has committed default in payment of rent as well as gas charges?
(4) Whether the tenement in question has been converted from residential into commercial?
(5) What should the order be?
5. ' Learned Controller, on assessm ent of the evidence adduced by the parties, decided that the premises in question were let out at the rate of Rs,450 per month and the appellants have failed to produce any cogent evidence in rebuttal. On issue No.3, she came to the conclusion that the appellants failed to pay rent and had committed default in payment of rent. Issue No.4 was decided, in the negative. In view of the findings on issue No,3, the eviction application was allowed as stated hereinabove. The appellants being aggrieved against the impugned order, dated 11-7- 1988 of the 1st Senior Civil Judge and Rent Controller, Karachi East, have filed the present appeal.
6. ' Mr. Hameed Ahmed Ayaz contended that the respondent has not established default. On the other hand, Mr. Badar Alam, submitted that the respondent has established default. He supported the impugned order.
7. ' I have heard Mr. Hameed Ahmed Ayaz, Advocate appearing for the appellants and Mr. Badar Alam, Advocate for the respondent. I have gone through the impugned order and perused the R&P. of the case.
8. ' The respondent averred in her application that the appellant No.1 had paid rent upto the month of March, 1985. The respondent averred further in para 7 of the eviction application that the respondent requested the appellant No.1 to pay the amount of gas bill of Rs, 3,144 but she told the respondent that she was not able to pay the amount in lump sum and requested her that she would pay it in installments of Rs,200 per month. The respondent had also paid a sum of Rs,132 to Karachi Gas Company towards payment of monthly gas bill.
9. ' The respondent averred that she accepted money order for Rs,200 towards part-payment of gas charges. The appellants denied the allegation of non-payment of rent and gas charges.
10. ' The respondent stated in her affidavit-in-evidence that the appellants had not paid rent after March, 1985 and also gas charges to the tune of Rs,3,276.
11. ' The appellant No.2 filed affidavit-in-rebuttal wherein he stated that the respondent used to come to his place to collect the rent from him to May, 1985 whereafter he started depositing the rent in the Court or remitting the same through money-order. He further stated that he was not in arrears of rent or electric bills, gas bills and water charges upto date. He further stated that regarding gas bill, the respondent narrated only a concocted story and her Exhs. A/1 and A/2 are false, forged and fabricated documents.
12. It is well-settled principle that initial burden of proof was upon the landlady to establish that the tenant has not paid or tendered rent due by him/her as required by section 15(ii) of the Ordinance but it must be appreciated that non-payment of rent is a negative fact. Therefore, if the landlady appears in Court and states on oath that she has not received the rent for a certain period, it would be sufficient to discharge the burden which lies under the law upon her and the onus will then shift to the tenant to prove affirmatively that he/she has paid or tendered the rent for the period in question.
13. ' Applying the principle to the facts of this case, it is clear that upon asserting in the evidence that she had not received the rent and gas charges for the disputed period, the respondent had successfully discharged the burden of proof and the onus was shifted to the appellants. If, therefore, the evidence of the two parties consisting of oral assertions, the respondent stating that she had not received the rent and the amount of gas charges amounting to Rs,3,276 and the appellants testifying that they have paid the rent and the amount of gas bill but no receipts have been produced, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The learned Controller has rightly come to the conclusion that the respondent has successfully established that the appellants had committed default in payment of rent and gas charges and are liable to be evicted from the premises.
14. ' Mr. Hameed Ahmed Ayaz appeared before me on 9-2-1992 and stated at the Bar that the appellants had cleared all the gas charges and there are no arrears. He further undertook to produce the originals of payment vouchers on the, next date of hearing. The case was adjourned to 16-2-1992. On 16-2-1992 he remained absent. Appellant No.2 was present in person. He did not produce any receipt or document to show that the gas charges were paid by them. It is pertinent to note that the appellant No.2 alleged in his affidavit-in-evidence that "regarding gas bills, the appellant has narrated only a concocted story and her Exhs. A/1 and A/2 are false, forged and fabricated documents." Even this was not substantiated by the appellants. The burden was upon the appellants to place on record some material to the effect that the gas bills are forged and fabricated documents. This has not been done. I have also given them opportunity to produce the documents. Despite the opportunity, no such documents were produced by them. In the facts and circumstances, it seems that the learned Controller has rightly come to the conclusion that the respondent has established default.
15. ' For the foregoing reasons, I dismissed this appeal by my short order, dated 16-2-1992 and affirmed the order passed by the learned Rent Controller. But in the circumstances, the parties were directed to bear their own costs. The appellants were directed to hand over the vacant possession of the premises upto 30-9-1992. This is subject to payment of tentative rent as well as other charges on due dates. In case of default, writ of possession was ordered to be issued without any notice to the appellants.