1. ' Appellant Dost Muhammad K. Shaikh has challenged the impugned' Order dated, 10-1-1996 in Rent Case No,299 of 1993 passed by learned VI Senior Civil Judge and Rent Controller, Karachi-East, whereby the appellant has been directed to vacate and handover the peaceful possession of the demised premiks to the respondent/landlord within 60 days from today. Hence this Appeal.
2. ' The respondent/landlord filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 against the appellant/tenant before the learned Vth Rent Controller and thereafter the Court of VIth Rent Controller, Karachi-East received the case by way of transfer; stating therein that the appellant/tenant is his tenant in respect of ground floor, premises in building on Plot No,85/M, Block II, PECHS, Karachi at monthly rent of Rs,1,000 exclusive of other charges. The appellant/tenant is habitual defaulter and does not pay. The rent regularly. He had committed default in payment of rent w,e,f, January, 1991 till this date. He had further asserted that the house in which respondent/ landlord is residing does not belong to him and the said accommodation is small. Respondent/landlord's children are grown-up and are marriageable ages. He has further asserted that he requested the appellant/tenant to vacate premises for the use of respondent/landlord and his children but appellant/tenant avoided to vacate the same. The respondent/landlord filed ejectment application.
3. 'The appellant/tenant was served and he has filed written statement wherein he has submitted that he has paid rent up to January, 1995. Respondent/landlord never issued any receipt for the rent paid to him since inception of tenancy. Appellant/tenant has been paying rent in advance but due to long cordial relations he never insisted for rent receipt. He has further stated that respondent/ landlord started construction of first floor over the premises in question a few year back and the appellant/tenant had at the request of the respondent/landlord' has provided him monetory support. The appellant/tenant has alto sent a sum of Rs,10,000 over the repair of the premises in question so also paid Rs,6,000 as deposit at the time of induction as tenant. He has also stated the appellant/tenant had lastly paid a sum of Rs,25,000 as being five years rent in advance at the request of respondent/landlord being rent. From February, 1990 to January, 1995 at the rate of Rs,425 p.m. He has denied the rate of rent of Rs,1,000 per month. He has denied that premises in question is required by the respondent/landlord for his personal bona fide need and the ejectment application was liable to be dismissed.
4. ' Respondent/landlord Syed Lala Mir Khan has filed his own affidavit as Exh.A/4; his witnesses namely Kaleemullah Khan as Exh.A/2. Thereafter he closed his side vide statement, dated 21-2- 1994. On the other hand the appellant/tenant Dost Muhammad has filed his affidavit as Exh.O/1 and the affidavit-in-evidence of his witness namely Shehzad Aslam Bhatti as Exh.O/2.
5. ' The learned Rent Control formulated the following points for determination:--
(1) Whether the opponent has committed wilful default in payment of rent since January, 1991?
(2) Whether the premises in question is required by the respondent/ landlord for his personal bona fide use and use of his family?
(3) What should the decree be?
6. ' The learned Rent Controller after hearing the learned counsel for the parties and having gone through the evidence and material available on record passed the judgment in terms as stated above.
7. ' Mr. Muhammad Sadiq learned counsel for the appellant/tenant has submitted that the rent with regard to residential premises is disputed as the respondent/landlord is claiming rent at the rate of Rs,1,000 per month whereas the actual rent is Rs,425 per month. In this regard he has drawn my attention to Rent Application at page 1 of R&P and paragraphs Nos.2 and 3 of written statement; he has argued that no receipt has been issued by respondent/landlord to the appellant/tenant with regard to rent; there is only word against word and in the absence of rent receipt the default cannot be thrown at the door of appellant/tenant and the learned Rent Controller while passing the impugned judgment has thrown the entire burden on the appellant/tenant over the question of default. According to him, the. Burden lies on respondent/landlord to prove default. He has argued that there is only sole statement of respondent/ landlord, which is not being supported by other witnesses with regard to issuance of receipt and there is word against word, the benefit goes to appellant/tenant. In support of his contention, he has placed reliance on 1986 CLC 1280, 1882; 1986 CLC 1551, 1985 AC 2428 (sic), 1994 CLC 755 and 1985 CLC 562.
8. ' On the other hand, Ms. Rashida Siddiqua, learned counsel for respondent/landlord has submitted that there is no contradiction with regard to the issuance of receipts: she has invited my attention on Rent Application at page 1 with contention that nothing has been mentioned in the Rent Application with regard to the issuance of receipt and the rate of rent is Rs,1,000 per month; that the consideration of fixed deposit has been denied by the respondent/landlord and nothing is mentioned in the rent application with regard to fixed deposit and in this regard she has invited my attention to cross-examination of respondent/landlord. She has further argued that the burden lies on the tenant with regard to proving issuance of receipts. She has placed reliance on 1993 M LD 386-A; 1993 M LD 1825, 1986 CLC 2550, 1994 MLD 1958-487, PLD 1990 SC 394; 1999 SCMR 538; 1989 CLC 34; 1981 MLD 1486 and finally she has submitted that there is nothing wrong with the order of the Rent Controller and has submitted that the appeal has no merits and be dismissed.
9. ' I have heard the learned counsel for the parties very carefully and have examined the material available on record and the affidavit-in-evidence, the averments of Rent Application and written statement filed by respective parties. I have also very carefully examined the impugned judgment.
10. ' The learned Rent Controller after framing the issues for determination has reached to the conclusion that it is a settled principle of law that if the landlady says on oath that she has not received rent, the burden lies upon the tenant opponent to prove. According to the learned Rent Controller is a case of admission from very beginning; no rent receipt was being issued by the landlord to the tenant. There is actually word against word. The learned Rent Controller has further observed that it is not possible to believe that the premises having four rooms situated at P.E.C.H.S. Is rented at Rs,425 per month including water charges; since the opponent has failed to shift his burden and the evidence of witness is not enough, therefore, the opponent has committed default in payment of rent since January, 1991 and finally the learned Judge has accepted the ejectment application of respondent/landlord and directed the appellant/tenant to handover the vacant possession within 60 days. The observations of the learned Rent Controller are based on surmises and conjectures; he has not taken into consideration the entire facts of the case and the evidence available on record and on his own, the learned Rent Controller has shifted the burden on shoulder of the tenant; the learned Rent Controller has not taken into consideration the facts that since the appellant/tenant has specifically stated that no rent receipts have been issued by the respondent/landlord to him having cordial relation and he did not insist upon issuance of the receipts, in that event the burden is shifted on the shoulder of the landlord and this aspect of the case has not been considered at all by the learned Rent Controller while giving judgment. The learned Rent Controller has also given observation that there is only word against word and since this is observation of the learned Rent Controller then from where the learned Rent Controller has gathered that the default has been committed by the appellant/tenant and only version of the landlord is to be believed and thus, the learned Rent Controller has not applied his judicial mind on the entire facts of the case, as discussed supra. The findings of the learned Rent Controller over Point No,2 with regard to personal bona fide use is also not elaborative and had decided Issue No,3 in favour of the respondent/landlord without any proper reasons. The learned Rent Controller has also not taken into consideration the contentions of the parties with regard to the disputed rent and by saying that it is not possible to believe that the premises having 4 rooms situated at P.E.C.H.S. At Rs,425 per month including water charges is nothing but based on general assumption which is not warranted by law. It is the duty of learned Rent Controller to take into account the actual evidence of the parties and concrete evidence in this regard.
11. ' From bare reading of the impugned judgment, I am of the considered view that the learned Rent Controller has not taken into consideration properly the issues involved in the case and has passed the judgment on mere conjectures and surmises. Accordingly the impugned judgment is set aside.
12. The case is remanded to the learned Rent Controller with the direction to give full opportunities to the parties over the issues involved in the matter and to take into consideration the entire m evidence and rather material evidence with regard to issues involved in the matter and pass judgment in accordance with law.
13. ' Parties are directed to appear before learned Rent Controller on 28-4-2001.