' By this common judgment I propose to dispose of F.R.As. Nos.694 and 695 of 1991 as the respondent in the two cases is the same and common questions of law and fact are involved therein.
2. The facts of the case are that the respondent instituted separate ejectment proceedings against the appellants in the two cases alleging that they had committed default in the payment of rent with effect from November, .
1989. Originally the monthly rent of the premises was agreed to be Rs,140 which, according to the respondent, had been subsequently enhanced to Rs,200 per month, however, the same was disputed by the appellants, according to whom, the rate of rent was never enhanced. The appellants also disputed the respondent's claim that they had committed any default in payment of rent as, according to them, rent was paid to the respondent upto February, 1990 but thereafter rent was advanced to the respondent by money orders respectively sent by the appellants.
However, the same was declined by the respondent, therefore, rent was deposited in the Court with effect from March, 1990 and hence no default was committed by the appellants.
3. The learned Controller on the basis of the evidence produced in support of his case by the respondent has held that the rent for the premises had been enhanced to Rs,200 per month.
However, in any case, according to the learned Controller, the appellants had committed default in payment of rent as they had fabricated the defence after notice in respect of the ejectment proceedings had already been served on them on 21-2-1990. The learned Controller also came to a conclusion that default had been committed by the appellants since they had failed to establish their case as against that of the respondent who had succeeded in fully establishing his case against the appellants.
4. I have had the advantage of hearing only Mr. Muhammad Iftikhar as none has appeared on behalf of the respondents.
5. After hearing the learned counsel and going through the record of the case, it appears that the learned Controller had failed to appreciate the evidence properly in the case. No doubt, according to the case of the respondent against the appellants, there was a written agreement between the parties, according to which, rent was payable in advance for each month and the respondent had succeeded in establishing his case against the appellants but the learned Controller has failed to appreciate the fact that admittedly no rent receipts were being issued by the respondent to the appellants. When such is the admitted position then it has been invariably held by this Court that burden of proof to establish non-payment by the tenant would be on the landlord. No doubt, the respondent stated in his affidavit-in-evidence that rent had not been received by him with effect from November, 1989 for the demised premises but the case of the appellants, on the other hand, is that rent had been paid by them to the respondent upto February, 1990. Thereafter, according to the appellants, rent was tendered by them by a money order and on refusal by the respondent, the same was deposited by the appellants in the Court and the appellants have supported their contention with documentary evidence by producing the money order receipt and the Court deposit receipts before the learned Controller. The findings of the learned Controller that the defence set up by the respondents appear to have been fabricated by them after receipt of notice in respect of the ejectment proceedings from the Rent Controller are not supported by any material on the record. Since as pointed out earlier, the respondent admittedly was not issuing rent receipts to the appellants the burden to establish default was heavier upon the respondent and there being word of the respondent against that of the appellants, notwithstanding the oral evidence of the witnesses produced by each side in support of its respective claim, there is no definite evidence to establish that the appellants, had committed default as alleged by the respondent.
6. The upshot of the discussion is that the two appeals are allowed and the order passed by the learned Rent Controller is set aside. The parties are left to bear their own costs.