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First Rent Appeal No. 252 of 1985, decided on 6th August, 1985.

Sind Rented Premises Ordinance (XV11 of 1979)--

---S. 21--Ejectment--Default in payment of rent--Landlady in her application for ejectment and also her husband and attorney in his deposition asserting that she had not received rent from tenant for last four months and her assertion not denied by tenant in written statement--Tenant making different assertions about payment of rent that he was confined to bed but did not explain his illness or produce any evidence to that effect; that he paid rent to landlord but no proof was tendered--Held, tenant failed to discharge onus to prove factum of payment and committed default--Order of Rent Controller ejecting tenant maintained.

M. Anis-ur-Rehman for Appellant.

Ajeebullah for Respondent.

Date of hearing: 6th August, 1985.

This first rent appeal is directed against the order, dated 16-3-1985 passed by 10th Rent Controller whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over the vacant and peaceful possession of the premises to the respondent within four months from the date of the order.

The facts which give rise to this appeal are that the respondent is the landlady in respect of building on Plot No. 5-J/428, Saeedabad, Baldia Karachi, and the appellant is the tenant in respect of shop on the ground floor in the said building at the monthly rent of Rs.250 p. m. excluding electric charges. The respondent filed eviction application being No. 512 of 1983 against the appellant on the ground of default for four months from 1-10-1982 to 31-1-1983. The appellant filed written statement and stated there that he was confined to bed for a long time and so he was not in a position to remit the rent. It was also averred that the rent was not withheld intentionally.

The respondent examined her husband and attorney. He was cross-examined by the counsel for the appellant. In rebuttal the appellant examined his attorney Usman and he was cross-examined by the counsel for the respondent.

The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No. 1 in the affirmative and allowed the eviction application, vide order, dated 16-3-1985.

The appellant being aggrieved by the aforesaid order, dated 16-3-1985 of the 10th Rent Controller, Karachi, has preferred this first rent appeal on the grounds mentioned in the memo. of appeal.

Mr. M. Anisur Rehman the learned Advocate for the appellant has contended that the learned Rent Controller has grossly erred to hold that the appellant has committed default.

On the other hand Mr. Ajeebu)lah the learned counsel for the respondent has submitted that the order is in accordance with evidence on record.

The respondent landlady in her application for ejectment had made the statement in paragraph 3 that the appellant is in arrears of rent in respect of the shop in question for four months from October, 1982 to January, 1983 at the rate of Rs.250 per month. In reply the appellant stated that he was confined to bed for a long time and so he was not in a position to remit rent. Toe rent was not withheld intentionally.

In the deposition before the learned Rent Controller the respondent's husband and attorney supported her plea in the ejectment application that the appellant did not pay rent to her and the appellant was in arrears of rent for four months from October, 1982 to January, 1983 as such he had committed default in payment of rent to the respondent. On the other hand the appellant stated in his deposition that the Rent was not withheld intentionally. He paid all arrears and had been paying regularly monthly rent. It is significant to note that there were different versions of the appellant with regard to the payment of rent. In order to consider the correct legal position with regard to the burden of proof is to be considered. The Hon'ble Supreme Court has considered the above question with regard to proof in the case of Allah Din v. Habib P L D 1982 S C 465. It was observed as under:-

"It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27(b), Specific Relief Act, 1877, in the case of Khairun Nisa v. Muhammad lshaq."

Applying the dictum laid down by the Hon'ble Supreme Court to the facts of this case, it may be pointed out that the respondent in her application for ejectment and also her husband and attorney in his deposition had asserted that she had not received rent from appellant for the months of October, 1982 to January, 1983. The assertion was not denied by the appellant in the written statement and the appellant in his deposition before the Rent Controller stated that the rent was not withheld intentionally and he paid all arrears. The version of the appellant, in memo. of appeal is that the rent was sent through money A order on 2-3-1983 but it was refused. The fact is that there were different versions of the appellant with regard to payment of rent. The evidence of the parties is consisting of oral assertions and the issue could only be decided, as observed in the above decision of the Hon'ble Supreme Court, that is, the tenant had failed to discharge the onus to prove the factum of payment.

It is the case of the tenant that he was confined to bed. He did not explain his illness. He did not produce any evidence to this effect. He failed to discharge the burden. His other version is that he paid the rent to the respondent but no proof was tendered. I am of the humble opinion that he committed wilful default in payment of rent.

In view of the circumstances stated, I find that the order of the Rent Controller was based on the evidence on record and, therefore, the appeal is dismissed in limine. The appellant is allowed three months time to vacate the premises in question from the date of order, that, is, 6-8-1985.

M. Y. H.

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