1. Applicant/appellant had filed Rent Case No.10 of 1997 in the Court of Senior Civil Judge/Rent Controller, Malir requesting for ejectment of opponent/respondent from Flat No.A-4/4, Johar Complex on the ground that the opponent/respondent was defaulter and was using the demised premises for commercial purpose by using signboard of Beauty Parlor and Marriage Bureau. It was alleged that the tenant had sublet the demised premises to another person. The tenancy agreement expired on 28-2-1997, therefore, the applicant/appellant sent a legal notice to the tenant for the eviction of demised premises within one month. The opponent/respondent filed written statement and admitted the rate of rent but stated that an amount of Rs.15,000 was paid as advance security which was to be adjusted towards monthly rent. The opponent/respondent further stated that she had become statutory tenant and the reply to the notice was sent. The allegation of default in payment of monthly rent was denied. It has been explained that applicant refused to accept the monthly rent and, therefore, the opponent/respondent sent the same by way of money order. It was further denied that the demised premises was being used for commercial purpose. The allegation of subletting was denied.
2. In support of his case the applicant/appellant examined himself and his witness Ghous Ahmed Khan. The agreement of tenancy and legal notice, dated 29-7-1997 was produced. The opponent/respondent examined hrrself and her witnesses namely Naseem Khatoon and Raees Ahmed. The learned Rent Controller came to the conclusion that the opponent had not committed default for the disputed period and it was to be adjusted from Rs.15,000 already paid to landlord as advance security. The learned Rent Controller also held that there was no sub-letting of the demised premises and the premises, was not used for any commercial purpose. The rent application filed by applicant/appellant was, therefore, dismissed on 2-5-1998. Against this order the present appeal has been filed.
3. On 10-9-1998 this Court passed order as under:-- "By consent of the learned counsel it is ordered that this matter will be posted for hearing on 13-1- 1998 when this matter would be admitted, heard and disposed of as if regular hearing of this appeal at this stage of Katcha Peshi."
4. On 13-10-1998 the case was adjourned. On 10-11-1998 counsel for respondent was called absent. On 10-12-1998 also none was present for respondent and learned counsel for the appellant was heard and it was ordered that the appellant and respondent can submit their written arguments. Learned Advocate for the appellant has submitted written arguments but the respondent did not file written arguments.
5. Learned Advocate for appellant has stated that the residential flat in question was rented out to the respondent at the rent of Rs.1,600 per month excluding electric, gas and water and conservancy charges under written agreement, dated 28-3-1996. The appellant filed Rent Case No.10 of 1997 in the Court of Senior Civil Judge/Rent Controller, Malir and the same was dismissed on 2-5-1998. It is further stated that in the rent case (vide para.8) and in affidavit-in-evidence (vide para.3) the appellant had specifically stated about default of rent from the month of November, 1996 till March, 1997 i.e. for five months. The case was filed on 1-4-1997. The Rent Controller had observed that according to applicant's contention the opponent was defaulter for three months on 28-2-1998, but he has not mentioned the specific months. The said observation of learned Rent Controller is based on misreading of the evidence of appellant as well as miscalculation of three months on 28-2-1998 particularly when the case was filed on 1-4-1997 claiming default of rent from November, 1996. The finding of the Rent Controller that the applicant has not shown any specific default of payment of rent as well as failed to show any receipt issued on behalf of him prior to the alleged default. This finding also suffers from misreading of evidence and misconception of law. It is respondent herself who had admitted in cross-examination "I used to pay rent through Estate Agency before this rent case. It is correct that the Agency issued rent receipts. I can produce the receipts for the period of November, 1996 to- March, 1997". In view of such admission the finding of Rent Controller is founded on non-reading of relevant evidence. Admittedly the respondent/tenant used to pay the rent through the Estate Agency of one Ghous Ahmed Khan who brought about the tenancy transaction between the parties. P.W. Ghous Ahmed Khan of Estate Agency has also stated in his affidavit-in-evidence (vide para. 3) that the respondent has defaulted in payment of rent since 1996 as well as payment of electric bills. Furthermore, non-payment of rent is a negative fact and once the landlord stated on oath to have not received the rent for specific period, the burden of proof shifts upon the tenant who has to prove affirmatively to have paid or tendered such rent. Reliance is placed on decision reported in. PLD 1982 SC 465 and 1997 CLC 216. Admittedly the rent receipts used to be issued to the respondent, through the said Estate Agency and she stated in cross-examination that she can produce such receipts for the period of November, 1996 to March, 1997 but the respondent failed to produce such receipts. The appellant has also deposed that respondent is defaulter in payment of electric charges/bills (vide para.5 of affidavit-in- evidence). As per contractual obligation under clause 5 of tenancy agreement dated 28-3-1996 she had to pay the electric charges. P.W. Ghous Ahmed Khan of Estate Agency corroborated the appellant's statement vide para. 3 of affidavit-in-evidence. Reliance has been placed on decision reported in 1995 SCM R 323. It is further mentioned in the written arguments that the disputed premises is a residential flat but the respondent had converted it into a Beauty Parlor and Marriage Bureau as mentioned in para.4 of the rent case and deposed by appellant, in his affidavit-in- evidence. The appellant's version has been corroborated by P.W. Ghous Ahmed Khan in para.5 of his affidavit-in-evidence. In spite of such evidence the learned Rent Controller has decided the issues wrongly.
6. The learned Rent Controller had framed four issues. Issue No.1 relates to default, Issue No.2 relates to the use of premises in question for other purpose than that for which it was let out and Issue No.3 relates to sub-letting. All the issues were answered in the negative by the Rent Controller. The finding of the Rent Controller on point of default is as under:-- "It is stated by the applicant that rent for 3 months was due to the opponent on 28-2-1997, while the ejectment application has been filed on 2-4-1997. It is admitted by the applicant that he has received rent for the month of February and March, 1997, through money order, dated 10-3-1997.
7. According to the applicants' contention the opponent was defaulter for 3 months on 28-2-1998, but he has not mentioned the specific months. In his cross he has further admitted that, I am receiving the rent through money order till today. On the other hand it is stated by the opponent that she used to pay the rent through Estate Agency and she was regular in payment of rent she further stated that she can produce the receipts. This fact is also admitted by the applicant in cross he has stated that it is correct that the rent has been received through Estate Agency.
8. The applicant has not shown any specific default of payment of rent as well as failed to show any receipt issued on behalf of him prior the alleged default.
9. In view of the above I come to the conclusion that the opponent has not committed wilful default and the alleged default for the disputed period was to be adjusted from Rs.15,000 lying with landlord as advance security. The issue is further decided in negative."
10. The appellant/applicant in para.3 of his affidavit-in-evidence has specifically stated that the opponent/tenant had not paid rent since November, 1996 except for one money order received on 10th March, 1997. The witness of the respondent/tenant named Ghous Muhammad who was the estate agent has also stated in para.3 of his affidavit that the opponent is defaulter in payment of rent since November, 1996. This affidavit was sworn on 24th June, 1997. The opponent/tenant in her affidavit-in-evidence has stated that on refusal of landlord to accept rent the same was sent through money order. In cross-examination the opponent/tenant has admitted that she used to pay the rent through Estate Agency before this rent case and it was correct that the agency issued the receipts and she could produce the receipts for the period commencing from November, 1996 to March, 1997. The period of the default is, therefore, determined and it commences from November, 1996 to March, 1997. The respondent admitted that she could produce the receipt of payment of rent for this period but no receipt has been produced. The finding of the Rent Controller is not based on the material and evidence available on record. The default is admittedly there. The appellant/applicant has insisted that the rent was not paid from November, 1996 to March, 1997.
11. The respondent/opponent has not produced any documentary or oral evidence to show that rent was paid for this period. Therefore, the finding of Rent Controller on this issue is reversed and it is held that the appellant was defaulter in the payment of rent for the disputed period from November, 1996 to March, 1997.
12. As regards the remaining two issues, the learned Advocate for the appellant has not advanced any arguments. The finding of the Rent Controller on these two issues has also been examined and these appear to be correct, therefore, finding on these two issues is not disturbed.
13. As finding on issue relating to default has been reversed the appeal is allowed and sixty (60) days time is given to respondent to vacate the premises in question. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.