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First Rent Appeal No. 48 of 1985, decided on 22nd December, 1985.

‑‑‑S. 15‑‑Default in payment of rent‑‑Contention of tenant, that he had been regularly paying rent but landlord avoided to issue him receipt, not believable‑‑Tenant tendered rent to landlord through money order for three months and failed to tender it for subsequent ten months although he could tender through money order‑‑Tenant, held, became defaulter‑‑Order of ejectment maintained.

P L D 1985 Kar. 741; P L D 1982 S C 465 and 1980 C L C 316 ref.

1982 C L C 1618 and P L D 1982 Kar. 403 rel.

‑‑‑S.15‑‑Default in payment of rent‑‑Appreciation of evidence‑‑Held, it was not number of witnesses but was intrinsic quality of evidence which determined fate of a case.

P L D 1985 Kar. 741 rel.

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908)‑‑Preamble‑‑Rent proceedings‑‑ Procedure‑‑Provisions of Civil Procedure Code, held, were not strictly applicable to rent matters.

1985 C L C 1801 ref.

Allauddin for Appellant.

Iqbal Ahmed for Respondent.

Date of hearing: 22nd December, 1985.

This appeal is directed against the judgment dated 22‑12‑1984, of Mr. Akhlaque Hussain Larik, the then VIII Senior Civil Judge/Rent Controller Karachi, whereby he allowed an ejectment application filed by the respondent and directed the applicants to hand over the vacant possession of the premises in dispute to the respondent within one month.

The brief facts of this appeal are that the respondent is the landlady of premises bearing No. BR‑1/55 tenement G/4 Bombay Baz4r, Karachi. The appellants are tenants thereof at Rs. 80 per month. The respondent filed an ejectment application alleging that the appellants had failed to pay rent for 10 months with effect from 1‑1‑1979 and 31‑1‑1979. Hence the prayer for their ejectment has been made on the ground of default in payment of rent. The application was contested by the appellants. They alleged that the respondent used to collect the rent for several months in lump sum at her convenience. When the respondent did not come to collect the rent for long intervals, the appellants sent the same by money order which annoyed the respondent. Hence she insisted on enhancement of rent to which the appellants did not agree. Therefore the respondent or her agent came and collected the rent every month but did not issue receipts on one or other pretext. The appellants assert that they are, therefore, not defaulters and have prayed for dismissal of the application.

On the pleadings of the parties the learned Rent Controller, framed issue as to default in payment of rent. After taking into consideration the evidence led by both the parties and after hearing arguments of their Advocates, he dismissed the case as shown above.

I have heard Mr. Allauddin Ansari, Advocate for the appellants and Mr. Iqbal Ahmad Advocate for the respondent at length. The first contention of the appellant's counsel was that the appellants were regularly paying rent from the months of January, 1979 to October, 1979 to the respondent or to his agent every month but she was avoiding to issue of receipts on one or other pretext. This contention of the appellants is not believable. Admittedly they had sent the rent for the months of October, November and 'December of 1978 by money order. Hence there was no reason for them not to send rent for these subsequent 10 months by money order as well, specially when the respondent was avoiding to issue receipts. She has herself admitted that prior to it the respondent used to collect rent in lump sum and on her sending 3 months rent by money order she had become annoyed. Hence it is not believable that the respondent would change her nature and would come to collect the rent every month. Mr. Ansari, referred to the evidence led by the appellants. They had examined 4 witnesses on the point of payment of rent where as the respondent had examined only her daughter and had denied the receipt of rent for these 10 months. Mr. Ansari, further contended that the burden of proving that the rent was not received lay heavily on the respondent, who had failed to discharge that burden. Hence it should be held that the appellants had paid the rent. The mere fact that they were unable to produce the receipts should not go against them. I do not agree with this contention of Mr. Allauddin. It is not the number of witnesses but it is intrinsic quality of the evidence which determines the fate of a case. Mr. Ansari, had cited P L D 1985 Kar: 741 where Munawar Ali Khan, J. has held that oral statement of the tenant given on oath regarding the payment of rent is trustworthy and had accepted the same. This ruling is distinguishable from the present case because in the case under ruling the landlord had admitted that he never issued the receipts to the tenant for the rent which he received from him. In the present case the landlord had not made any such admission. He had on the contrary stated that he used to issue receipts to the tenant she never received the rent. The next contention of Mr. Ansari, that the burden of proving that the rent was not paid was on the tenant, is repelled by the ruling reported in P L D 1985 Kar. 741 cited by Mr. Ansari, himself in which it was held that when parties were at variance over question of default, burden was on the tenant to prove that he had actually paid the rent for the disputed period. Moreover, in P L D 1982 S C 465 it was held that a party could not prove the existence of negative facts, hence where the landlord had examined himself and denied the receipt of rent the burden of proving that the rent was paid shifts to the tenant. In another ruling reported in 1982 C L C 1618 it was held that in the absence of a receipt of rent the ordinary presumption will be that the rent has not been paid. In P L D 1982 Kar. 403 Korejo, J. held that ordinarily payment towards the arrears of rent is never made without obtaining proper receipt of the same. It was then contended by Mr. Ansari that the respondent herself did not step into the witness box. Instead, her attorney Mst. Tauhida Begum who is her daughter has been examined. Her examination was not legal and proper. In this connection he has relied upon Order III, Rule 2, C . P. C . (Rind Amendment) and submitted that only a person holding General Power of Attorney could not appear or apply on her behalf, whereas Mst. Tauhida Begum was not her mother's general attorney. This contention is without any force. Mst. Tauhida Begum had been examined as a witness whereas the Advocate was acting, appearing and applying on behalf of the respondent. Hence it was not necessary for her to have General Power of Attorney. Moreover the provisions of C.P.C. are not strictly applicable to the rent matters. In 1985 C L C 1801 Tanzil‑ur‑Rehman, J has held that where the tenant was sending rent by money order for some time then he started paying rent in cash subsequently but no receipt was produced, it was held, that the tenant had failed to pay rent to the landlord and was wilful defaulter in the circumstances.

Mr. Ansari, cited 1980 C L C 316 where it was held that where default in payment of rent was doubted it should be resolved in favour of the tenant. This ruling does not apply to the facts of the present case. Mr. Ansari, then cited an unreported First Rent Appeal No. 1085 of 1982. This also does not apply to the present case because in this case neither the landlady nor any one of her 3 sons or other near relatives were examined. Her son‑in‑law who was examined was not residing with her. 'Whereas it is not so in the present case. Mst. Tauhida Begum who Chas been examined is the daughter of the landlady, and she resides with her. She is naturally expected to know about the payment of rent. Thee landlady is 80 years old and was not expected to deal with the tenants or to appear as a witness in the Court.

I, therefore, hold that the appellants have failed to pay rent for the period between 1‑1‑1979 and 31‑1‑1979 and are, therefore liable to ejectment.

I, therefore, dismiss the appeal and uphold the judgment of the lower Court, and direct the respondent to hand over the vacant possession of the disputed premises to the respondent within 4 months.

M . Y . H . Appeal dismissed.

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