SYED ALI ASLAM JAFRI, J.-- Appellant/tenant Muhammad Yunus has filed this appeal to question the order of eviction dated 6.5.2000 passed by the learned Rent Controller No. 1 Mirpurkhas in R.C. No. 24/98 directing the appellant/tenant to hand over the vacant possession of the shop/business premises bearing C.S. No. 293/1/1 New Town, Mirpurkhas to the landlord within 30 days from the date of the order.
2. The facts in brief giving rise to this appeal are that Irfanullah Khan/respondent No. 1 is the owner and landlord of the demised premises which was originally on rent with one Abdul Ghani at the rate of Rs. 225/- per month since 1981. In the year 1988 the said Abdul Ghani handed over the possession of he said shop to the appellant who was recognized as a tenant by respondent No. 1 at the rate of Rs. 260/- per month. It is the case of the respondent/landlord that the appellant paid rent upto December, 1997 and thereafter he failed he failed to pay or tender the same i.e.f. 1.1.1998 till the filing of the rent case on 22.7.1998 and that he has also sub-let the premises in question to one Khawjoo the opponent No. 2 in the rent case without the knowledge and consent of the landlord.
3. Written-statement/objections were filed by the appellant whereas the opponent No. 2 failed to file his written-statement and as such he was declared as ex-parte on 16.11.1998. In this written statement the appellant denied that he a defaulter or he has sub-let the shop to any other person.
He further stated that he has been regularly making payment of the rent to the landlord without any receipt being issued to him. He further, stated that the rent was being collected by one Imranullah Khan brother of the landlord/owner from Muhammad Haneef brother of the appellant since the start of the tenancy in his favour. He further stated to have paid the rent till September, 1998. It was also categorically stated there are some other tenants in respect of the other properties/shop belonging to the landlord to whom also receipts are not being issued by the owner/landlord. It is the case of the appellant/tenant that after receiving the notice of the rent case from the Rent Controller on or abut 19.10.1998, rent for the month of October, 1998 was offered to lmranullah Khan by Muhammad Hanif brother of the appellant/tenant with a request to issue receipt but lmranullah Khan refused to accept the rent or to issue the receipt hence the rent was remitted through Money Order on 3.11.1998 which was refused by Saadullah Khan, whereafter the appellant/tenant started depositing the rent with the Rent Controller. The appellant therefore prayed for dismissal of the rent case as according to him he was neither a defaulter nor he had sub-let the dismissed premises to opponent No. 2.
4. In support of his case Saadullah Khan attorney of the landlord/owner lrfanullah Khan examined himself and produced original counter-foils of rent receipts Nos. 5 to 50 as Ex.24/1 to 45. He also produced counter/foils of rent receipt No. 1 to 99 as Ex. 25/1 to 99. He also examined lmranullah Khan as a witness and closed his side.
5. On behalf of the appellant/tenant Muhammad Hanif his attorney was examined who produced the copy of the notice/summons from the Rent Controller received by him, copy of the power of attorney and receipt of the money order showing the remittance of Rs. 260/- as rent to Saadullah Khan.
6. The points for determination as deduced by the Rent Controller out of the pleadings of the parties are as under:--
(1) Whether the opponent No. 1 is wilful defaulter and he has not paid the rent from 1.1.1998 to the applicant?
(2) Whetter the opponent No. 1 has sub-let the shop to one Khawjoo, without the consent of the applicant?
(3) What should the order be?
After considering the evidence on record and the arguments of the learned counsel for the parties, the learned Rent Controller decided point No. 1 in affirmative, point No. 2 in negative and resultantly the application was allowed.
7. I have heard the learned counsel for the parties and examined the evidence available on the record and various documents produced by the parties in support of their respective contention.
8. Ejectment order has been passed on the ground of wilful default and the learned counsel for the appellant has mainly argued to assail the finding on this point. It has been argued by Mr. Kazi Munawar Ali, learned advocate for the appellant that there is no wilful default or even default in payment of the monthly rent which was paid to Imranullah Khan who used to collect the rent regularly, till September, 1998 and that after receiving the notice from the Court in respect of the ejectment proceedings, rent was offered to Imranullah Khan with a request to issue the receipt for the same and on his refusal the same was sent through money order which too was refused. In support of his contention the learned counsel has relied upon the case of Abdul Latif Vs. Syed Akhtar Ali, reported in 1993 CLC 1951 to show that the initial onus to prove default is upon the landlord and that the landlord in this case has failed to discharge his burden. The learned counsel has argued that in fact no receipt was ever issued by the landlord/owner but from the counter-foils filed in the Court which do not bear the signature of the extent, one thing is very clear that the rent for each month was being paid regularly without any default hence the ground of ejectment was been falsely set up and in fact there is no wilful default. The learned counsel has further argued that male fides on the part of the appellant can be judged from the fact that in order to seek ejectment on one or other ground he also falsely set up the case of sub-letting and the said plea has been discarded by the learned Rent Controller by replying the relevant point for determination in negative. The said finding of the learned Rent Controller has not been assailed by filing an appeal against the said finding or by way of cross-objections, hence the chapter to that extent stands closed and now the landlord/respondent has to confine himself upto the ground of wilful default. The learned counsel has vehemently urged that the counter-foils of the receipts have no value in the absence of the signatures of the payee of rent in acknowledgement of the receipt of such receipt. All the counter-foils have been subsequently managed and the same are fabricated pieces of evidence. In support of his various contentions the learned counsel has relied upon the- case of Habib Hamed Vs. Liaquat Hussain, (PLD 1985 Kar. 741), in order to show that in the absence of an agreement of rent being in writing, an oral agreement would have no legal force and would not be permitted to be used as basis for any litigation in respect of any matter including the ejectment of tenant and that a Rent Controller has no Jurisdiction to entertain ejectment application which could be dismissed for want of written agreement. With due respects I do not agree with this proposition of law which is not based on correct and proper appreciation and interpretation of Section 5(2) of Ordinance XVII of 1979. The very purpose of enactment of Section 5 of the Ordinance appears to provide a manner for making the agreement and care has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement, but it does not mean that oral tenancy is prohibited under the said Ordinance. Had it been the intention of the legislatures, it would have provided which provision of law in the Ordinance to exclude the jurisdiction of a Rent Controller in respect of a dispute between the landlord and tenant based on oral tenancy. This view finds support from the rule laid down in the case of Mst. Fatima Vs. Mst Hanifa (PLD 1987 Kar 271), where Saleem Akhtar, J. (his lordship as then was) as under:-- "Section 5 provides a manner for making the agreement and care has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement. It is well-settled that any person can enter into agreement of tenancy orally as well. It is not prohibited under law. However, it is also well-recognised that as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. Therefore, section 5 is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. A observed in Khuda yar's case (PLJ 1976 SC 159), the procedural provisions are desired with a view to impart certainty, consistency, and uniformity to the administration of the justice and to secure it against arbitrariness errors of individual judgment and mala fides".
The learned counsel has further placed reliance on the case of Syed Abdul Rasheed Vs. Mst.
Tajunnisa (1982 CLC 954), wherein a view was taken that landlady did not appear in witness-box and her son started dealing with property since April, 1976, the denials by landlady's son regarding receipt of rent for February and March, 1975 was considered to have no force under the circumstance. The facts in the present case are altogether different and the principle laid down in that case is not applicable because the person who had been admittedly receiving the rent, has been examined. In support of their case.e Saadullah Khan father and attorney of landlord Irfanullah who resides in U.S.A. Has been examined so also lmranullah Khan who is brother of Irfanullah Khan, who has been admittedly receiving the rent and issuing the receipts has been examined. The rent case referred by the learned counsel for the appellant reported as Abdul Samad Khan Vs. Asif Malik, (NLR 1990 AC 212), wherein it has been held that burden to prove payment of rent would lie on landlord in a case showing that rent receipts were prepared by landlord but same were not a taken by the tenant. Here the facts are again different and the case of the respondent/landlord is that receipts were being regularly issued to the appellant/tenant and in order to cover the default for the relevant period, he has not produced the same in Court and took the plea that no receipts were being issued, though demanded by him.
9. On the other hand the learned counsel for the respondent No. 1 has argued that it is the case of clear wilful default on the part of the appellant/tenant who has failed to produce any proof that he has been paying the rent regularly to his landlord. He has further argued that no independent person has been examined by the appellant tenant in support of his version. He has further argued while placing reliance on the same authority 1993 CLC 1951 that no doubt initial onus to prove the default is upon the landlord, but once the landlord has discharged his burden, onus shifts to the tenant regularly. It has been further argued that in view of the statement on oath by the owner/landlord and production of a number of counter-foils of the rent receipts, the burden heavily shifted upon the tenant who has miserably failed to disprove the contention by the landlord. With the help of the case law reported as Al/ahuin vs. Habib (PLD 1982 SC 465), the learned counsel has argued that non-payment of rent is a negative fact. One the landlord appeared in Court and stated on oath that he did not receive the rent for a certain period, burden lying upon .Him stood sufficiently discharged and it is for the tenant to prove affirmately that he has paid or tendered such rent. Reliance has also been placed n the case of Mursaleen Vs. Ghu/am Sarwar & another (1991 SCM R 2042) wherein the same view has been approved ad it has been held that where the landlord had discharged the onus that the tenant had not paid or tendered rent, the tenant was duty bound to disprove such fact through cogent and convincing evidence. I find that such cogent and convincing evidence on behalf of the tenant is lacking in this case. The learned counsel for the respondent/landlord has further placed reliance on the case of Muhammad Shafi Chaudhry Vs. Saeed Ahmed (1996 SCM R 1784), wherein their lordship have held that where tenant failed to produce any reliable evidence to prove factum of payment of rent for specified period, the rent controller had rightly concluded that there was default for specified period and had rightly ordered ejectment of the tenant on that ground. The above referred rule laid down by the Apex Court is also fully attracted to the facts on the case. The contention of the learned counsel of the appellant/tenant that rent receipts was not being issued by the landlord stands belied by the production of a number of the counter foils of the said receipts by the respondent/landlord and no evidence has been led to prove that in fact no receipts were being issued to the appellant or to any of the tenants by the respondent No. 1. Non-examination of any other tenant of the respondent, is also fatal to the case of the present appellant. So for the last contention of the learned counsel for the appellant, that there are no signatures of the tenant on the counter foils, it is not always necessary. It his been held in the case of Jabar Ahmed Vs. Abide (PLJ 1997 Kar 280), that the landlord is not required to obtain signature of the tenant on receipts of rent issued by him to tenant nor it is necessary to have a joint receipt book for all the tenants. It appears that receipts were being issued by the landlord to the appellant tenant but he has not produced the same as a defence for his default. In the caste of Syed Abu Jafar vs. Shaikh Karim Bux (1985 CLC 1952) it has been held that in the case of ejectment on the ground of default in payment of rent where landlord used to issue receipt of payment of rent, if the tenant did not produce the rent receipt for the period of default of rent, in fact the tenant failed to discharge his burden which was upon him.
10. Keeping in view the material on record and the case-law as cited at the bar. I have come to the come to the conclusion that the appellant/tenant has failed to prove the payment of the rent for the disputed period. After the evidence on oath and production of the counter-foils of the receipts on behalf of the respondent/landlord, the burden had heavily shifted upon the appellant/tenant.
There is only word of the appellant/tenant and as such the learned Rent Controller was justified in holding that the appellant/tenant is a wilful defaulter and no exception can be taken to that finding.
11. The upshot of the above discussion is that no cause is made out for inteflerence at this stage.
The ejectment order passed by the learned Rent-controller does not suffer from any irregularity or infirmity but appears to be based on proper appreciation of law and facts, hence this appal has no. Force and it is dismissed, however, with no order to costs. The appellant is granted 60 days' time to vacate the demised remises from the date of this order.