1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against a judgment dated 2-8-1995 passed by learned III Senior Civil Judge and Rent Controller, Karachi-Central, whereby ejectment application filed by the respondent/landlord was allowed and the, appellant/tenant was directed to hand over the vacant possession within sixty days.
2. ' Brief facts of the case are that respondent/landlord filed eviction application against the appellant/tenant on three grounds, namely, default in payment of rent from July, 1991, by the appellant/tenant at the rate of Rs,1,300, (ii) personal requirement in good faith for the respondent's family, and (iii) appellant has created nuisance. The appellant/tenant in his written statement has stated that he has paid rent to the respondent till Februray, 1992 at the rate of Rs,800 per month but no receipt from the beginning was being issued nor it was demanded by him, and that he paid an amount of Rs,25,000 as security with the deceased S.M. Kamil for which also no receipt was issued but thereafter rent for the month of March, 1992, was refused therefore, the same was sent through money order which was also refused, therefore, the appellant started depositing monthly rent in M.R.C. No,225/92 hence he was not defaulter. The appellant/tenant denied that respondent required premises in good faith and also that he has caused any nuisance.
3. ' Learned Rent Controller in view of the pleadings of parties, settled four issues and after recording evidence and hearing the learned counsel for parties held that the appellant/tenant has committed default in payment of rent and that the respondent required the premises in good, faith but so far the issue about the causing of nuisance, the same was answered in negative.
4. ' I have heard learned counsel Mr. Shafaat Hussain for appellant and learned counsel Mr. Raghib Baqi for respondent, perused the record and proceedings of the case and the case-law cited by counsel for the respondent.
5. ' The contention of learned counsel for appellant is that the learned Rent Controller has erred in holding that the appellant is defaulter in the payment of rent from July, 1991 to June, 1994. The respondent/landlord has stated in the ejectment application as well as in his affidavit-in-evidence so also of his witness brother Shehzad Javed that the appellant/tenant has failed to pay rent from July, 1991, at the rate of Rs,1,300 per month and rent receipts were issued in handwriting to the appellant/tenant. The appellant/tenant in his written statement and affidavit-in-evidence has stated that he has paid rent up to February, 1992, but thereafter, respondent avoided to receive rent at the rate of Rs,800 per month, therefore, he sent money order on 26-2-1992 being rent for March, 1992 but the same was refused, therefore, rent was deposited in M.R.C. No,225 of 1992 and further that no receipt for the rent was ever given to him, so also he was not given receipt for the sum of Rs,25,000 paid as security deposit to the deceased S.M. Kamil. None of the parties has produced tenancy agreement or counterfoil to prove the rate of rent and to show the period from which date the rent was due except the oral evidence. Onus to prove rate of rent and default in payment of rent would be initially under the law on the respondent/landlord. The respondent in the cross- examination has stated that he was not present at the time when the terms of tenancy between his deceased father and the appellant were settled. However, the respondent has admitted that the appellant has been paying rent to him after death of his father and his father is said to have expired in the month of October, 1988. It would mean that for 33 months from October, 1988 till June, 1991, the rent was paid to the respondent. During last 33 months, the respondent has said to have issued handwritten rent receipts as stated by him in the cross-examination. No documentary proof has been produced to show that during the said 33 months, rent was being paid at the rate of Rs,1,100 or Rs,1,300 per month by the.Appellant. At least one copy of handwritten receipt of rent or an entry in a book kept in ordinary course of business should have been produced by the respondent in support of the statement that the appellant was paying rent at the rate stated by him.
6. Respondent's witness Shehzad Javed was also not present at the time when the terms and conditions were settled-between appellant and his deceased father. It was only the appellant who was present with whom the deceased settled the rate of rent, therefore, his statement being first hand could be considered to be more reliable than what has been said by the respondent and his witness considering that no satisfactory evidence documentary or oral has been adduced by the respondent to prove the rate of rent at the rate of Rs,1,100 or Rs,1,300 per month considering that onus to prove the same was on the respondent. Reference may be made to Faseeh Hashmi v.
7. Muhammad Rafique 1990 CLC 1218 wherein learned Judge in Chambers held that onus to prove increase in rent was on landlord. Reference may also be made to Ghulam Akbar v. Abdul Rasheed 1991 CLC 959 wherein learned Judge in Chambers held that where there was dispute over the rate of rent and both parties failed to produce any evidence to prove their respective contentions the tenant could not be accused of any default uncless the same is specifically established that the rate of rent was as claimed by the landlord.
8. ' As the appellant had settled himself the terms and conditions of tenancy with the deceased father of the respondent, therefore, his version in respect of rate of rent of Rs,800 is held to be rent of the premises in question. Accordingly, finding about the rate of rent arrived at by the learned Rent Controller is reversed.
9. ' Now the point for consideration would be whether the appellant has paid rent from July, 1991 till the filing of ejectment application on 27-7-1994. The respondent and his witness Shehzad Javed have stated in their affidavit-inevidence that the appellant has not paid rent from July 1991. The appellant has stated that he has paid rent up to February, 1992, but thereafter it was refused therefore he sent money order being rent for the month of March 1992 on 26th February, 1992, which was refused therefore he made deposit in Miscellaneous Rent Case No,225 of 1992 on 29-3-1992 as per photocopy of the challan deposited with the bank under the orders of Rent Controller.
10. ' Section 10 of Rent Ordinance has provided mode of payment of rent. The said provision states that the rent shall be paid to the landlord who shall acknowledge receipt thereof in writing but where the landlord has refused or avoided to receive rent, it may be sent to him by postal money order or be deposited with the Controller within whose jurisdiction the premises is situated and the written acknowledgement, postal money order receipt or receipt of Controller as the case may be would be produced in proof of payment of rent. In case the landlord was not issuing any acknowledgement it was duty of the appellant/tenant to have sent rent through postal money order and if it was refused then in that case the rent could have been deposited with the Rent Controller. In the instant case, the appellant/tenant has not produced reliable evidence that he offered rent for the month of March, 1992 to the respondent and it was refused by the respondent therefore rent was tendered through postal money order which too was not accepted therefore rent was deposited with the Rent Controller. The monthly rent becomes payable after the expiry of month. There is nothing on record to show that monthly rent was to be paid in advance, if the rent was not payable in advance, how the appellant would offer rent for the month of March, 1992 to the respondent in the month of February, 1992, if so, how respondent would refuse to accept rent. The appellant could tender rent by postal money order only when there is refusal of respondent. This conduct of the appellants appears to be unusual reflects his defence to be not worthy of credit.
11. Postman has also not been examined to prove the refusal of postal money order of rent sent for the month of March, 1992 on the part of the respondent. The appellant has also not stated as to from which month enhancement of rent was asked for by the respondent though the appellant has stated to have paid rent to the respondent since October, 1988 after the death of father of respondent. Mere fact that postal money order for Rs,800 was sent on 26-2-1992 to the respondent of which refusal has not been proved, so also deposit on 29-3-1992 in the office of Rent Controller in the name of respondent, would not itself be sufficient to hold that the appellant had paid rent from July, 1991 to February, 1992 in the circumstances of case. If sending of rent by postal money order or deposit of rent in the office of Rent Controller was for the purpose of having an acknowledgement of rent, then why the appellant did not adopt the same course of tender of rent when he was allegedly not being given rent receipt by the respondent. No satisfactory explanation in the circumstances of the case is shown as to why then appellant did not tender rent in terms of section 10 of Rent Ordinance, when the respondent was allegedly not issuing rent receipts from July, 1991 and was demanding increase in rent. The onus to prove payment and non-issuance of the receipt in the circumstances would be on, the appellant. Reference may be made to Jamshed Baig v.
12. Muhammad Ashfaque 1991 M LD 1048 wherein it was held that:-- "It is established position that in a case where a tenant comes out with the plea that no rent receipt was being issued by the landlord, very heavy onus lies on his shoulders to substantiate his stand:"
13. ' Reference may also be made to Jabar Ahmed v. Abida Ismail 1987 M LD 114.
14. ' It will not be out of place to state here that postal money order receipt is dated 26-2-1992 and is said to have been rent for the month of March 1992 but how the appellant would send rent in advance when the rent was not due and such practice was not in force between the parties. The appellant could only sent rent in advance when he could foresee that rent if offered would be refused. In the instant case the rent for the month of March, 1992 was even not due therefore, its offer by the appellant and refusal by respondent would be out of question. There is no evidence that appellant was paying rent in advance to the respondent. The evidence on the said point adduced by the respondent is satisfactory, reliable and has not been shaken in the cross- examination therefore it is held that the appellant/tenant has failed to pay rent from July, 1991, till February, 1992 even at the rate of Rs,800 per month.
15. ' In view of aforesaid reasonings, the finding arrived at by Rent Controller is maintained.
16. ' Next contention of learned counsel for appellant is that the learned Rent Controller has erred in holding that the respondent required premises for his personal need in good faith. The respondent in para.4 has stated that the premises are required for his personal bona fide use and for the use of his family including his brother Shehzad Javed and sister Mst. Azra who are joint owners of the property and the marriage of Shehzad Javed could not be solemnized for want of sufficient accommodation. The respondent has in his affidavit-inevidence reiterated the said statement and has further stated that the ground floor premises in his occupation consists of two rooms and in case premises in appeal situated on first floor was given to him, his brother and sister could be accommodated. Shahzad Javed, brother of the respondent, has corroborated the statement of the respondent about the requirement as well as requirement of other family members. The appellant has denied the personal requirement of the respondent in his written statement as well as in the affidavit-in-evidence but has not denied the joint ownership of respondent's brother Shehzad and his sister in the disputed property. The appellant has failed to shake the veracity of the respondent and his brother Shehzad Javed in the cross-examination. The appellant could not bring anything substantial in his favour to show that the accommodation in possession of the respondent was sufficient for his own as well as for his brother and sister. The appellant even did not challenge that brother of respondent Shehzad Javed was not going to marry for which he needed the premises in question. The contention of the learned counsel for the appellant is that the requirement for the respondent's brother and sister would not come under "personal use" as defined in section 2(g) of Rent Ordinance of the respondent/landlord. It is true that the brother and sister are not included in the category of family members as defined in section 2(g)of the Rent Ordinance but when the brother and sister are joint owners of the property for which C ejectment is asked for, they would be asking for ejectment for personal requirement as owner therefore would be entitled to seek eviction of their property. Technical objection is raised by the learned counsel for the appellant that the brother/sister should have been made applicants in the ejectment application, the same has no substance. Reference may be made to Muhammad Siddique v. Ghulam Rasool 1987 CLC 1439 and Muhammad Jalil Khan v. Mst. Dilshad Begum and 8 others 1992 CLC 2105.
17. ' In view of aforesaid evidence on record, the respondent has proved his personal requirement in good faith and the appellant could not bring any satisfactory rebutting evidence on the said point.
18. I do not find anything improper in appreciation of evidence on the point of personal bona fide need to interfere with the finding of Rent Controller. Accordingly, the finding of Rent Controller is maintained.
19. ' No other plea has been raised. In view of the aforesaid reasonings, I do not find substance in the contentions of learned counsel for appellant, consequently, appeal is dismissed. However, sixty days' period is given to the appellant to vacate the premises subject to condition that he would deposit rent for the said period.