1. It is the case of the respondents that the appellant is their tenant in respect of Shop No.1 at a monthly rent of Rs.136 payable in advance by 5th of each calendar month by virtue of Tenancy Agreement dated 30-6-1982. It is urged that under the terms and conditions of Tenancy Agreement, appellant was bound to start his business within a reasonable time but he failed to start the same and kept the premises locked and thereby infringed the conditions of tenancy.
2. Besides, he committed a wilful default in the payment of rent with effect from January, 1983 till the institution of the rent case on 28-5-1984.
3. Both the parties adduced evidence. While the respondents examined Rana Abdul Khaliq, Managing Partner of the Company and Arif A.I, attesting witness to the Agreement of Tenancy, appellant appeared as his own witness and examined Kamaluddin and Habib Ahmed, co-tenants in the respondents' building.
4. On assessm ent of evidence, learned Controller concluded that the appellant had committed wilful default in payment of monthly rent with effect from January, 1983 till the filing .Of rent case. Besides, he was guilty of default in the deposit of rent as per the tentative rent order dated 2-12-1984. As to the Agreement of Tenancy between the parties he held that the respondents had failed to prove the execution of Tenancy Agreement. On the basis of evidence, however, he recorded a finding that even if there had been no Tenancy Agreement between the parties, appellant failing to commence his business in the tenement in question had committed violation of section 15(3)(c) of the Ordinance. Accordingly, ejectment was allowed which is impugned in this appeal. .
5. Leaned counsel appearing for the appellant - with reference to the evidence on record, vehemently contended that the appellant did not commit any default in payment of rent. In fact the rent had been paid in cash to the landlords but they did not issue the requisite receipt. It is admitted that the appellant received vacant possession of the shop on or about 30-6-1982 while the execution of agreement of tenancy produced by the respondents has been denied by him. In his evidence, respondents' witness having stated on oath that the appellant had failed and neglected to pay or tender rent since January, 1983 burden to prove the payment heavily lay on the appellant. Needless to point out respondents' case is that the appellant had paid the rent only once on 1-7-1982 for six months from July to December, 1982 in respect of which required receipt was issued to him, whereafter he did not pay or tender any amount of rent. Photocopy of receipt acknowledging a sum of Rs.816 from 1-7-1982 to 30-12-1982 in respect of Shop No.1 was produced alongwith the affidavit-in-evidence which stands admitted by the appellant. Now the case of the appellant in his evidence is that in fact he continued to pay rent till May, 1984 while the rent for June, 1984 when tendered was refused to be accepted. Soon thereafter he received a notice of ejectment proceedings whereafter he started depositing rent in M.R.C. No.2018 of 1984 but he has miserably failed to prove it by any cogent and reliable evidence. During his cross-examination appellant stated that he had paid rent for three months to Rana Abdul Khalique. He did not remember since when he was depositing the rent in court and the period for which he had deposited the same. He did not even remember the year in which he had filed the miscellaneous rent case. While reiterating that he did not commit 'any default in. Payment of rent since January, 1983, he came out with a new plea that Rana Abdul Khalique stated that he would receive rent after printing of rent receipts and execution of rent agreement. It is pertinent to note that the deposit of rent in miscellaneous rent case was not disclosed in the written statement filed by the appellant which is the foundation of his defence. Learned Controller while dealing with this aspect of the case concluded that in fact appellant had not filed any miscellaneous rent case for deposit' of rent as alleged by him. After examination of the R & Ps. Of the lower Court, it would not be out of context to point out that in fact no voluntary deposit appears to have been made in M.R.C. No.2018/84 as alleged by the appellant. In fact the ejectment cases filed by the respondents was initially numbered as Case No.2018/84 but after bifurcation of Karachi Judicial District, the case was renumbered as Case No.14 of 1985. From the office report on application for withdrawal of rent dated 3-2-1987, I find a report by the Serishtedar of Rent Controller No.VI, Karachi-South which tends to show that in Ledger No.12 of 1985 for the first time 1a sum of Rs.3,400 was deposited on 6-1- 1985 whereafter different payments were made in subsequent months before the 10th of each month which seems to have been done in compliance with the tentative rent order passed under section 16(1) of the Ordinance on 2-12-1984. In terms of section 10 of the Ordinance, it is the obligation of the tenant to pay rent to the landlord who shall acknowledge receipt thereof in writing. In case a landlord has refused or avoided to accept the rent, law permits a tenant to send the rent by money order or to deposit the same with the Controller within whose jurisdiction the premises is situated. There is no doubt that initial burden of proof lies on the landlord to prove that the tenant has not paid or tendered rent due, but it must be borne in mind that non-payment of rent is a negative factor. In the present case landlord's witness having-stepped into the witness box stated on oath that no rent was paid by the appellant, and thus he discharged his burden.
6. Thereafter, onus to prove the payment would shift to the tenant to prove affirmatively that he had paid or tendered rent for the period in dispute. In the circumstances of the case, I am fully convinced and satisfied that the appellant has miserably failed to establish affirmatively that in fact he had paid the rent due to the landlords.
7. It was next contended that the appellant had paid a sum of Rs.2,90,000 to the respondents by way of Pugri in six instalments and as held in the case of Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16, respondents after having accepted `Pagri' in respect of the demised premises are not legally entitled to seek the ejectment of the appellant under the Ordinance. For the sake of convenience relevant portion from the above judgment is reproduced hereunder:--- "`Pagri' or `goodwill' as is understood in common parlance connotes the sense that tenant had paid a very large sum of money, which is totally disproportionate to the rate of rent in order to purchase something more than tenancy rights, which are somewhat near to ownership rights and the landlord also by accepting `Pagri' willingly relinquishes his ownership rights as such and then the parties in order to maintain facade of the relationship of landlord and tenant in order to be called as such agree on very low rent, which is nominal in nature which is paid and landlord issues receipts for payment of such low rent. After accepting `Pagri' landlord renders himself ineffectual because he has imparted to the tenant something more than the tenancy rights and acts as helpless spectator when the tenant sells away his `Pagri' rights to another tenant and the landlord cannot raise any objection to it but has to agree to change receipt in the name of new tenant for which he gets some additional money."
8. It was then contended that learned Controller had wrongly held that the appellant had not complied with the rent order passed under section 16(1) of the Ordinance. It is pertinent to note that the appellant has filed original receipts for deposit of rent in Case No.2018/84 alongwith a statement showing the amounts in para. 13 of memo of appeal. These receipts and the dates of deposit would show that the arrears of rent amounting to Rs.3,400 were deposited on 6-1-1985, while subsequent amounts were deposited on or before the 10th of each month with a few exceptions. Confronted with this factual position, learned counsel for the respondents has conceded that taking into consideration these payments the appellant did not commit a default in compliance with the rent order passed under section 16(1) of the Ordinance. Finding of the learned Controller to this extent being erroneous is hereby set aside.
9. Having held above on the issue of default in payment of rent before the institution of the Rent Case and non-compliance with the rent order, I now advert to the second question, whether learned Controller was right in holding that although the respondents had failed to prove the Agreement of Tenancy between the parties, appellant had infringed the conditions on which the premises were let out to him on rent. For arriving at this conclusion, learned Controller has relied upon clause (c) of subsection (3) of section 15 of the Ordinance.
10. Upon assessm ent of the evidence on record and comparison of the signatures of the appellant on a number of admitted documents with the signature appearing on the Agreement of Tenancy, I find no good reason to differ with the view taken by the Controller. Indeed, the Agreement of Tenancy is a printed document spread over three leaves in which certain blanks have been filled in.
11. In view of specific denial by the appellant that he did not execute any Agreement of Tenancy with the respondents the question of infringement of- conditions would hardly arise in the circumstances. However, learned counsel for respondents vehemently contended that the premises were admittedly let out for running business which not having been commenced, the appellant had forfeited his right of tenancy and thereby rendered himself liable to ejectment on this account as well. Relying upon the admission by the appellant in his evidence that he is not running business in the shop in question, as the entire market was flopped, Mr. K.B. Bhutto learned counsel for respondents submitted that in terms of section 15(3)(c) of the Ordinance, the Controller was justified in directing ejectment of the appellant on this ground as well. I am unable to persuade myself to agree with this contention of the learned counsel, because, the terms and conditions of tenancy' have not been established. Merely because a tenant does not start his business in the rented premises for his own reasons, would not be valid ground for his ejectment. In the present case, appellant had stated that the entire market had flopped which statement has not been controverted. At any rate, the learned Controller committed an error by holding that the appellant had infringed the conditions on which the premises were let out to him after recording a finding of fact that the agreement of tenancy had not been proved. The finding of the Controller on this score is erroneous and bad in law, which is hereby set aside.