Find a Lawyer

First Rent Appeal No. 396 of 1980, decided on 9th October, 1983.

‑‑ S. 13‑---Evidence Act (I of 1872), S. 114 illus. (f)‑Presumption‑ Landlord admitting non‑issuance of rent receipts to tenant‑Tenant producing business accounts maintained' in ordinary course of business and not for rent case‑Landlord not putting a single question to tenant to challenge genuineness of account book‑Such account, held, proved in circumstances.

----S. 13 ‑ Eviction proceedings ‑ Evidence showing tenant not committed default ‑in payment of rent‑No cogent reason advanced by landlord in support of his plea of personal requirement‑‑‑Ejectment of tenant, held, rightly declined by Rent Controller, in circumstances.

‑‑ S. 13‑Eviction proceedings‑Personal requirement of landlord‑Landlord getting disputed premises vacated on ground of personal requirement but again letting out to respondent tenant‑No cogent reason showing for letting out disputed shop to respondent after getting same vacated for personal use‑‑Landlord doing work of book binding in passage adjacent to shop prior to letting out to previous tenant as well as to present‑Landlord's failure to bring cogent reason, held, fatal to his ground of personal requirement.

Malik M. Saeed for Petitioner.

K. A. Wahab and Abdul Matin for Respondent.

Date of hearing.: 9th October, 1983.

This is an appeal against the order dated 5‑4‑1980 passed by the learned Second Rent Controller, Karachi, in Rent Case No. 1350/74, dismissing the appellant's application for ejectment on the ground of default for the period commencing from February, 1973 to April, 1974 and also on the ground of personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

2 (a) In support of the above appeal, Mr. Malik Muhammad Saeed, learned counsel for the appellant has urged as follows;

(i) That since the respondent's plea that he had paid a sum of Rs. 5,000 in advance to the appellant stands falsified, the learned Rent Controller should have accepted the appellant ocular testimony on the ground of default as compared to the respondent's oral evidence.

(ii) That even the finding of the learned Rent Controller on the question of personal requirement is erroneous as the factum that the appellant had let out the shop in question after getting it vacated from the previous tenant would itself is not sufficient to disentitle the appellant to press into service the ground of personal requirement.

(b) On the other hand Mr. Abdul Matin, learned counsel for the respondent has contended as follows :‑

(i) That it is not the question of words against words, but the respondent in fact has also produced documentary evidence to show the payment of rent for the period in dispute.

(ii) That since the appellant had admitted the factum that he get the shop is question vacated without the intervention of the Court from the previous tenant on the ground of his personal requirement and, thereafter, he had let out the same to the respondent, the heavy burden was on the appellant to show that his personal requirement was bona fide.

3. As regards the first contention of the learned counsel for the parties, it may be observed that the appellant had admitted in his cross‑examination that be bad never issued any rent receipt to the respondent. In this view of the matter, the respondent could not have produced rent receipts for proving payment of the rent for the period in question. The respondent apart from examining himself, has also produced business accounts maintained by an exercise books. I have examined the above exercise books. I am inclined to hold that the above accounts are maintained in the ordinary course of business and have not been prepared for the rent case. It may further be pointed out that the appellant did not put a single question to the respondent in his cross‑examination in order to challenge the genuineness of the above accounts books and, therefore, the above accounts stand proved. The learned Rent Controller on the basis of the above documentary evidence could conclude that in fact the respondent had paid the rent for the period in dispute. It is true that the respondent in para 4 of his written statement had pleaded that he had paid Rs. 5,000 as advance money to the appellant though factually as per agreement on record, he had paid Rs. 500 which facts is also reflected in the reply Exh. A/13, which was sent by the respondent to the appellant's notice, which has been brought on record, but this fact itself would not disprove the payment of the rent for the above period if the above accounts are to be accepted as genuine. Admittedly as pointed out hereinabove the appellant did not challenge the genuineness of the above accounts in the cross‑examination of the respondent and, therefore, the learned Rent Controller in spite of the fact that the factum of payment of Rs. 5,000 was not proved by the respondent, could rely upon the above accounts. The finding of the learned Rent Controller on the question that no default was committed seems to be in consonance with evidence on record.

4. Reverting to the question of personal requirement, it may be pointed out that factually the appellant admitted in his cross‑examination that he got the shop in question vacated from the previous tenant, who also happened to be by the name of Rahmatullah on the ground of personal requirement. But he instead of occupying the same had let out the shop to the respondent. In view of the above admission, on the part of the appellant, the heavy burden was on him to show a cogent reason for letting out the shop to the respondent after having got it vacated from the previous tenant on the ground of personal requirement. It is an admitted position that the appellant was doing the work of book binding in the passage adjacent to the shop prior to letting out the shop to the previous tenant as well as at the C time of letting out the same to the respondent. The appellant has failed to bring any cogent reason on record. The above failure seems to be fatal to the appellant's ground of personal requirement.

5. It many be observed that the appellant is a book binder and according to Mr. Malik Muhammad Saeed he is a poor man. Mr. Abdul Matin, learned counsel for the respondent has agreed that from the month of February, 1983 the respondent shall pay monthly rent at the rate of Rs. 125. The above undertaking of the respondent through his Advocate is recorded and the appellant shall be entitled to rely upon the same. With the above observation the appeal is dismissed with no order as to costs.

M. Y. M. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.