1. First Rent Appeals Nos.171 and 176 of 1994 are being disposed off by this judgment as these relate to same parties and same premises.
2. The facts leading to the filing of these appeals are that respondent Muhammad Saleh, landlord filed Rent Applications Nos.684 and 685 of 1991 under section 15(2) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) in the Court of learned Vth Rent Controller, Karachi (South) against appellant, stating therein that he is owner of building known as Mousiki Mahal situated in Plot No.N.P.7/23, Saya Allapa Street, Karachi and had rented Shops Nos.1, 2 and 4, the disputed premises in Rent Appeals Nos.171 and 176 of 1994 at a monthly rent of Rs,420 and Rs,100 payable not later than 10th of each month. The respondent in the rent cases further mentioned that appellant proved to be a very difficult tenant and did not pay the rent from July 1987 onwards in spite of repeated demands. He lastly paid the rent of July and August 1987 vide Receipts Nos.862 and 863 on 9-2-1990 and promised to clear the arrears by June 1990 but failed to do so resulting that an amount of Rs,18,060 became due and payable in Rent Case No.684 of 1991 and Rs,7,430 in Rent Case No.685 of 1991, ranging from 1-9-1987 to 31-3-1991. The case of the respondent further is that he sent a legal notice on 6-2-1991 asking for the payment of the arrears as well as rent but the appellant paid no heed. In spite of that he started additions and alterations in the building on 11-4-1991 and installed gate in common passage of the building thereby impaired the value and utility of the building. Such complaint was also lodged with S.D.M. Eidgah who forwarded the same to the S.H.O. of Police Station Napier.
2. In his written statement the appellant/tenant denied the case of the respondent and stated therein that he is in occupation of the demised premises prior to 1978 when it was owned by Mst. Zarina to whom he was paying rent. Thereafter when the said property was purchased by Muhammad Saeed, he executed an agreement of booking as licencee of the premises who obtained from him a sum of Rs,55000 in respect of licence premises viz. Shops Nos.1, 2 and 3 (disputed premises). The appellant further asserted that the rent/licence fee upto December 1991 was paid by him to the rent collector of respondent Muhammad Ibrahim in lieu of valid receipts and also denied the allegations of unauthorised additions and alterations. The respondent filed his own affidavit in evidence and was subjected to cross examination whereafter his evidence was closed and the appellant filed his own affidavit in evidence as well as that of his witness, namely, Sajjad and Zaffar Iqbal who too were cross-examined and thereafter he closed his side. However Rent Collector Muhammad Ibrahim was also examined.
3. From the pleadings the following issues were settled:--- "(1) Whether the opponent has committed any default in payment of rent as alleged?
4. (2)Whether the lease agreement stated to be as agreements of licence between previous owners Muhammad Saeed and opponent in respect of demised premises is valid agreement if so what its effect?
5. (3)Whether the opponent has impaired the value of the property in question by instalments shatter gate?
6. (4)What should the order be?"
7. On the assessm ent of evidence, learned Rent Controller decided the Issues Nos. 1, 2 and 3 in favour of the respondent and vide Issue No.4 allowed the ejectment application and ordered eviction of appellant from the tenement in question.
8. I have heard Mr. Attaullah Khan on behalf of the appellant and Miss Mumtaz Sultana on behalf of the respondent at length.
9. Learned counsel for appellant mainly contended the same grounds taken by the appellant in his written statement and the affidavit in evidence. He, however, added that there are sufficient contradictions in the memo. of rent applications and the affidavit-in-evidence by the respondent.
10. According to him, respondent has not taken the grounds in affidavit in evidence about appellant's making additions and alterations and by fixing gate at the main passage of the building and has, thus, impaired its utility and has diminished its value. Therefore, the plea taken in the rent case and not taken subsequently cannot be taken into consideration. On this point learned counsel relied upon 1986 CLC 1119 and PLD 1995 Lahore 98. On the ground of default he argued that appellant has been making payment of rent to rent collector Muhammad Ibrahim all along up to December, 1991, thus, has not committed any default and in proof such receipts have been produced.
11. On the denial of signatures over the receipts by rent collector Muhammad Ibrahim, the appellant filed application in the Trial Court for obtaining the opinion of hand writing expert on the said signatures, but the said application was dismissed on 9-2-1994. He further argued that appellant in fact took Shop No.1 against advance of Rs,15,000 while Shops Nos.2 and 3 against advance deposit of Rs,40,000 with licence fee being Rs,200 each for Shops Nos.1 and 2 and Rs,100 for Shop No.3 under an agreement with Muhammad Saeed the previous landlord. According to him, he had deposited the licence fee in advance from July, 1987 to December, 1991, with Muhammad Ibrahim the agent of respondent and thereafter, the same is being deposited in Miscellaneous Rent Case No.2121 of 1991 since January, 1992. About Shop No.4 it is averred that appellant is in possession of Shops Nos.1, 2 and 3 in the said building, whereas Shop No.4 is in possession of some one else. Learned counsel, however, conceded that there exists relationship of landlord and tenant between the appellant and the respondent. He placed reliance on the case-law reported in 1987 CLC 378.
12. On the other hand Miss Mumtaz Sultana on behalf of the respondent vehemently opposed the contentions advanced by the appellant's counsel and rubutted the arguments of appellant's counsel that plea not taken in the case cannot be taken subsequently, is in fact without force, as the said plea has been specifically taken by the respondent in the rent application, therefore, the same can be taken later on. On the default, learned counsel submitted that the same stood proved against the appellant, from his own cross-examination, whereby he has admitted that whenever he used to pay the rent, the respondent issued him receipt. He further stated that he does not remember whether he has paid the rent up to June, 1987; and that it is also correct that he is neither in possession of the receipts after June, 1987 nor is having any documentary proof about the payment of rent from July, 1987 to December, 1991. He has also admitted pendency of criminal litigation in between him and the respondent before the Court of S.D.M. Eidgah. In the end the appellant has admitted that he deposited rent in the Court for the first time on 28-10-1992 in the name of respondent for the month of January, 1992. He further admitted that he has not deposited rent for the month of July, 1987 to December, 1991 in the Court. Learned counsel lastly urged that learned Controller has exercised discretion in proper manner by allowing the eviction application and appellant has not been able to point out any illegality or irregularity, misreading or non- appraisal of evidence from the order. In support of the above contentions? she relied upon case- law reported as PLD 1993 Karachi 642(c), 1972 SCMR 262. With regard to F.R.A. No.176 of 1994 she stated that the dispute is only about shop number otherwise the pleadings as well as evidence recorded therein is entirely same to that of F.R.A. No.171 of 1994.
13. I have heard the learned counsel for the parties and I find myself in agreement with the learned Rent Controller, that in the circumstances of the case he had properly exercised the discretion by allowing the rent applications mentioned above and rightly termed the appellant a defaulter.
14. In order to appreciate the submissions made by the learned counsel for the parties, the material placed on record as well as pleadings and the evidence led by the parties is to be examined. Since the learned counsel for the appellant has admitted the relationship of landlord and tenant in between the appellant and respondent, as such the contention that appellant had given an advance deposit towards the price in respect of the shops under an agreement with original owner Muhammad Saeed from whom respondent purchased the property, becomes immaterial and cannot be taken into consideration, mainly for the reasons that the said chapter became over, the moment respondent purchased the property and became owner. The respondent in his cross- examination has denied the suggestion that Muhammad Ibrahim rent collector had received licence fee till December, 1992 from the appellant and about the shops he said that appellant is in possession of Shops Nos.1, 2 and 3 but not 4. On the contrary as argued above the appellant has clearly admitted in his cross-examination at two places about default. The relevant portion of his cross-examination is reproduced in his own words as under:--- "It is correct that whenever I paid rent the applicant has issued receipt to me. I do not know remember if I had paid rent to applicant up to June, 1987. It is correct that I have no any receipt issued by applicant to me after June, 1987. It is correct that I have no any documentary proof that I had paid rent to applicant from July, 1987 to December, 1991.
15. It is correct that I have deposited rent in the Court in the name of applicant which was not paid to him. It is correct that first time I have deposited rent in Court on 28-10-1992 in the name of applicant for the month of January, 1992. It is correct that I have not deposited rent for the month of July, 1987 to December, 1991 in the Court."
16. Rent Collector Muhammad Ibrahim in his examination-in-chief has categorically stated that appellant paid Rs,400 on 2-7-1990. Receipt No.302, dated 5th July, 1990, 3rd July, 1990 and 4th July, 1987 do not bear his signatures so also Exhs.0/9 to 0/8 also do not bear his signatures. He has further stated that it is incorrect that appellant paid rent to the respondent up to December, 1991.
17. This witness has not been cross-examined, as such, its evidence had gone unchallenged.
18. Perusal of the receipts produced by the appellant are noticed to be blank without showing the name as to in whose favour the same are issued. The order, whereby the request of appellant for referring the signatures of rent collector to hand writing expert was refused has not been admittedly challenged in the Appellate Court which proves that he accepted the plea that signatures of rent collector were forged one. The case of Haji Abdul Rehman v. A.H. Shirazi, 1978 CLC 378 referred by appellant's counsel is not applicable with the facts of the present case, as in the referred case it was proved in the evidence that tenant alongwith his witness had tried to tender the rent to the landlord personally or through money order which landlord refused to accept.
19. Tenant as a last resort deposited rent with the Rent Controller and accumulated rent being due to conduct of landlord, tenant could not be deemed to be defaulter in the payment of rent. In this case the situation is entirely different, as the appellant has voluntarily admitted the default as stated above. The law referred the respondent's counsel fully supports her case. In the referred case of Haji Fida Hussain v. Muhammad Ibrahim Khan, 1972 SCMR 262, Honourable Supreme Court in the last paragraph has held as under:--- "It is thus, evident that the rent must be paid within 15 days after the expiry of the time fixed in the agreement of tenancy and in the absence of an agreement within 60 days from the period for which the rent is payable. The tender contemplated under the explanation must be a tender within the time prescribed in Clause (i) of the subsection. Besides the petitioner has already admitted that he was actually in default."
20. In case when the landlord denies receipt of rent from tenant for disputed period, burden of proof shifts upon tenant to prove otherwise. On this point I feel appropriate to refer case of Mumtaz Ahmed v. Mst. Razia Majeed, 1993 CLC 1602 of this Court, whereunder in the concluding para. it has been held as under:--- "Non-payment of rent is a negative fact. The respondent in the evidence tendered on her behalf having denied receipt of the rent for the disputed period, the burden of proof shifted to the appellant to prove affirmatively that he had paid or tendered the rent for the period in question.
21. The only evidence produced by the appellant is his oral assertion that the rent was paid to the deceased who did not issue the receipt. He did not even examine any of the so-called well-wishers, on whose intervention rent for the subsequent period was paid to the deceased, as alleged by him.
22. Under these circumstances it cannot be said that the appellant had discharged the burden of proof. The settled law is that in civil proceedings issue is to be decided by preponderance of evidence and in case where there is a word against the word, it is the party on whom lay the onus must fail. In the referred case the reliance has been placed on the cases of Qaiser Khatoon v. Abdul Khaliq (PLD 1971 SC 334) and Allah Din v. Habib (PLD 1982 SC 465)."
23. From what has been discussed above, I am of the considered opinion that there is hardly any scope to interfere with the findings of the Rent Controller. In the result, the appeals are dismissed.
24. However, two months' time is allowed to appellant to vacate the premises and hand over its possession to the respondent.