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First Rent Appeal No. 324 of 1980, decided on 2nd October, 1983.

‑‑ S. 13‑Application for ejectment on ground of default‑Landlord previously serving legal notice on tenant mentioning default in payment of rent for a certain period‑Tenant by way of reply neither denying nor explaining default‑No rent receipts produced by tenant before Controller to prove payment of rent for period in dispute‑Held, burden of proof had shifted in circumstances to tenant to establish that rent had in fact been paid uptodate and which he failed to discharge‑ Ejctment ordered.

PLD 1982SC465re1.

S. Hassan Asghar Riavi for Appellants.

Muhammad Rao Shakir Naqashbandi for Respondents.

Date of hearing : 2nd October, 1983.

Rent Case No. 320 of 1970 was filed by the appellants/landlords against the two respondents, on 29‑1‑1970 on the ground of default in the payment of rent w. e. f. February, 1969 and on the ground that Salahuddin, respondent No. 1, (tenant) bad sublet a portion of the permises to respondent No. 2, Idris. The ejectment application was resisted by the respondents. On behalf of the appellants, Nisar Ahmad, attorney of the appellants gave evidence and one N. A. Bambani, Superintendenting Engineer of KESC also appeared as witness on behalf of the appellants. Both the respondents gave evidence on their behalf. By order dated 19‑2‑1980 the ejectment application was dismissed on both the grounds. Being aggrieved, the appellants have come in first rent appeal before this Court. I have heard Mr. S. Hasan Asghar Rizvi, learned counsel for the appellants and Mr. M. Rao Shakir Naqshbandi, learned counsel for the respondents.

2. On the question of subletting, on the basis of the evidence, the learned Rent Controller found that the two respondents are real brothers and have been carrying on business together within the premises in question. The finding of the Rent Controller is that there was no subletting. I have perused the evidence and am of the view that the finding of the Rent Controller on the question of subletting is proper and does not call for any interference.

3. On the question of default, the case of the appellants is that rent had been paid upto January, 1969 but no rent had been paid or tendered for the period from 1‑2‑ 1969 till the rent application was filed. It was contended on behalf of the appellants that in the circumstances of the case the burden bad shifted on the tenant to prove that rent had been paid after February, 1969 uptodate and reliance was placed on P L D 1982 S C 465. On behalf of the respondents, it was contended by Mr. Shakir Naqshbandi that several money‑orders had been sent from March 1969 up to December, 1969 on account of the rent which had been accepted by the landlords and as such no default had been established. It may be observed here that prior to filing of the ejectment case, the appellants/landlords had served a legal notice, dated 1‑10‑1969 upon the respondent No. 1, the tenant, and acknowledgment receipt of this notice duly received by respondent No. 1 was produced as Exh. P. 9. In para. 5 of the rent application a specific reference was made about the legal notice and the acknowledgment receipt. This has been denied in the written statement. After the notice, dated 1‑10‑1969 and, before the filing of the rent case on 29‑1‑1970, one money order dated 10‑12‑1969 had been sent by the respondent No. 1 to the appellants for Rs. 220 that is rent for the two months. Now in the notice dated 1‑10-1969 it was mentioned that rent had not been paid w. e. f. 1‑12‑1968. No reply was given to this legal notice. There is no explanation on behalf of the respondents on record as to why the allegation that rent had not been paid w. e. f. 1‑12‑1968 had not been denied through a reply by the respondents. After receipt of this notice, dated 1‑10‑1969 two months' rents had been paid by money order by the respondents. According to the appellants these two months' rents were adjusted towards December, ]968 and January, 1969 and as such in the ejectment application rent was claimed to have not been paid from February, 1969. No rent receipts had been produced by the respondents to show that the rent had been paid uptodate by the respondent No. 1. In view of the oral evidence adduced on behalf of the respondents supported by the notice dated 1‑10‑1969, the burden had shifted to respondent No. 1 to establish that rent in fact had been paid uptodate and this burden had not been discharged. It is very seldom that a landlord issues a notice prior to filing of an ejectment case. However; in this case the appellants did give a notice, dated 1‑10‑1969 stating very clearly that sent had not been paid w. e. f. 1‑12‑1968. In these circumstances, either a reply, should have been given denying the allegations about arrears of rent or the respondent No. 1 should have been in possession of reliable evidence to establish that rent uptodate in fact had been paid. As observed earlier, the only piece of evidence on record after 1‑10‑1969 is a money order sending rent for two months and this bad been adjusted towards the rent for December, 1968 and January, 1969 through Exh. P‑10 copy of the rent receipt dated 16‑12‑1969.

4. I find from a perusal of the order of the Rent Controller dealing with the question of default that he has not dealt properly with the evidence on record. A case for default had been made out by the appellants and the ejectment application should have been allowed on that ground.

5. First Rent Appeal No. 324 of 1980 is allowed on the ground of default only and the ejectment application filed by the appellants is granted on the ground of default. The appellaqts shall be entitled to costs. The respondents are, however, granted time till 31‑1‑1984 to vacate the premises subject, however, to regular payment/deposit of rent.

M. B. A. Appeal allowed.

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