1. ' The learned 1st Rent Controller, Karachi East by order, dated 1-2-1994 allowed the ejectment application filed by respondent/applicant. Against this order the present appeal has been filed.
2. Written arguments have been submitted by learned counsel for the parties.
3. ' The learned Counsel for the appellant has submit.:d that the appellant is the tenant of shop in Central Commercial Area, P.E.C.H.S., Karachi, since 1977. During this long period of tenancy he was regularly paying rent to the respondent. The rent of the premises is Rs,412. The respondent's case is that the appellant had not paid rent from February, 1990 to June, 1990 and that he required the shop for his personal bona fide need as he wanted to start the business of, renting cars. The Rent Controller has given the finding that appellant committed default in payment of rent. The appellant had produced the rent receipts Exhs.0/2, 0/3, 0/4, 0/5 and 0/6. To show that the respondent accepted accumulated rent. The appellant had paid rent upto June which fact is evident from provisional rent receipt issued by the respondent on a rough paper of old diary. This receipt was in the handwriting of respondent in which he has' mentioned his address, date of receipt, amount of monthly rent with his name. Provisional Receipt was not replaced by Pucca (proper) rent receipt as per practice of the respondent. The respondent came to collect the rent for the month of July, 1990 at the shop of the appellant and the appellant demanded proper receipt for the accumulated rent from February, 1990 to June, 1990 which rent had already been paid. The respondent got annoyed and refused to receive the rent for the month of July, 1990 offered by the, appellant and also did not issue proper rent receipts. After refusal of respondent to receive rent for the month of July, 1990 the appellant sent the rent to the respondent through money order, dated 28-7-1990 being the rent for the month of July, and August, 1990 which was also refused by the respondent (Annexures "D" and "E"). The appellant started depositing rent in M.R.C. No, 517 of 1990 till the rent order was passed in Rent. Case No,21 of 1991. The applicant/respondent in his Rent Application has mentioned in para.2 that oppenent/appellant is not regular in payment of rent. The appellant had produced receipts Exhs.0/2 to 0/6 in original which show acceptance of rent as alleged by the respondent, therefore, there is no default. Reliance is placed on decisions reported in PLD 1976 Lahore 1052, PLD 1978 Lah.
4. 862 and 1973 SCMR 608. The learned Counsel for appellant has referred to statements made by respondent in cross-examination. The respondent had admitted that Exh.0/3 was in his writing but denied the writing on Exh.0/2 which was in handwriting of respondent. The Rent Controller was competent to compare the writing of both the documents but this was not done. Reliance has been placed on decisions reported in PLD 1968 Dacca 167, PLD 1977 Kar. 711, PLD 1978 Kar. 263 and 1997 SCMR 976. The learned Rent Controller has wrongly held that the appellant was a defaulter.
5. ' The learned Advocate for the respondent has submitted that rent application was filed on or about 9-1-1991 against appellant on two grounds, firstly on ground of default from February, 1990 and secondly on ground of personal requirement as he intended to start his business of renting cars. In para. 2 of the rent application the respondent has specifically mentioned that in spite of warnings the opponent/appellant did not regular in payment of rent. The appellant denied in his written statement the allegation of default in para.2 of rent application. The only defence of opponent/appellant was assertion that Katcha receipt was issued. The learned Advocate for the respondent has referred to portion of order of Rent Controller on the point of default. He has placed reliance on decisions reported in 1971 SCMR 598, PLD 1973 Kara 56, 1975 SCMR 355, PLD 1979 Lah.
6. 444, 1980 CLC 914 & 1077, 1980 SCMR 506, 1985 CLC 2109, 1984 CLC 1067, PLD 1989 SC 489 and PLD 1995 Kar.
7. 179.
8. ' The learned Rent Controller in his order, dated 1-2-1994 has given the finding on point of default which is as under:-- "The material question for consideration is that if the opponent has committed default in payment of Rent as alleged by the applicant from February, 1990. The applicant has got his own evidence on record in order to prove the default by the opponent. In rebuttal, the opponent is claiming that he has committed no default and in fact the Rent was paid upto June, 1990 and thereafter, the rent for July was not accepted on which he remitted rent through money order which was not accepted, thereafter he started to deposit the rent. The opponent is also relying upon one writing which the applicant has admitted that this writing is of the applicant and this writing is showing the word rent Rs,412 for June, 1990. Under this writing the word is appearing Master Muhammad Hamid with telephone number Muhammad Iqbal, Dr. Badaruddin having telephone number, beside it there also another paper which is also showing address 105-J, Haji Ashraf, rent for June, 1990, then date is appearing. The applicant is claiming that though it is his writing but it was not a rent receipt and in fact was a reminder for payment of rent to another tenant Dr. Mehmood of Shop No,3 through the present opponent as he was not available when he visited to Dr. Mehmood and the opponent instead of delivering the reminder to Dr. Mehmood has set up the plea of payment of rent of June, 1990. I am not satisfied with the plea advanced by the applicant in respect of this writing as neither it is in the shape of any reminder, nor any word is appearing thereon that the Dr. Mehmood was asked to pay the rent. There is also nothing written on this document for which month the doctor was asked to make payment of the rent. There is also do other supporting evidence in favour of the applicant that this relates to Dr. Mehmood, tenant of Shop No,3. No other witness has come forward to support this contention of the applicant. There is also nothing stated by the applicant if the respondent has not forwarded this writing to the said Dr. Mehmood after how much period he got the rent from said Doctor. In absence of such material, the statement deposed by he applicant in respect of this document cannot be believed. The opponent is claiming that it is a provisional receipt issued by the applicant as he had received rent upto June, 1990, but this statement is also not convincing as no such evidence is there to believe that there was such practice in between the parties that applicant used to right on such papers as has been produced by the opponent that applicant had been receiving rent. Moreover, the word receiving is not appearing on, this document. The only word written there of rent for June, 1990. From this word none can believe if such writing can be treated as payment as on both these receipts Exhs.0/1 and 0/3 are showing simple word rent for June, 1990. In my humble opinion mere writing of such word rent for June, 1990 does not mean that a person has received this amount as stated on these documents. The applicant also produced one notice, dated 22-7-1990 in which rent was demanded from the opponent from the month of February, 1990 to June, 1990 (Para.4 of the notice), in respect of notice there is reply also appearing of the opponent's counsel. The reply is dated 29-7-1990 (reply notice of the opponent). In the reply notice the opponent has denied about the none payment of rent but except the aforesaid receipt he has not produced any other document in order to believe that the rent for February to May, 1990 had been paid by the opponent. Burden was upon the opponent to prove about payment of rent from the month of February to June, 1990 as it is alleged by him that he had paid the same, therefore, he was required to produce any rent receipt, though he is claiming that the applicant was in habit of issuing rent receipt of accumulated rent, but he has not produced any such receipt of the disputed period or any other material that he demanded rent receipt of the disputed period from the applicant, in order to show that there was such practice between the parties that applicant always issued rent receipt of the accumulated rent. In absence of the same burden cannot be shifted upon the applicant that he failed to issue receipt of rent. In view of my above discussion I am of the opinion that the opponent has committed default as alleged by the applicant. Consequently, I decide this issue in the affirmative."
9. It is necessary to reproduce the finding of the Rent Controller to show that he has examined every aspect of the case. He has examined arguments advanced by both the parties, thereafter he has given his own finding that there was default.
10. ' The learned Advocate for the appellant has addressed his argument which have already been reproduced above but the fact remain that the appellant/opponent failed to produce the receipt showing payment of rent. The rent receipt produced as Exhs.0/2, 0/3, 0/4, 0/5 and 0/6 have been examined. These receipts do not correspond to any counterfoil of any receipt book. The document Exh.O/2 is receipt bearing No,2536 but it too does not solve the problem because other alleged receipts are on loose papers. The writing- on these loose papers cannot be treated as payment of rent for the disputed period. The Rent Controller was, therefore, justified in holding that the opponent had committed default in the payment of rent. The appeal is, therefore, dismissed.