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First Rent Appeal No. 946 of 1984, decided on 29th September, 1986.

---S. 15--Payment of rent--Proof--Onus--Duty of tenant to prove payment of rent--Initial duty, however, would be on landlord to state on oath that tenant had not paid the rent, thereafter burden, held, would shift to tenant to prove that he had paid the rent--Where tenant did not protest on refusal of landlord to issue receipts and neat quiet on account of confidence that he reposed in landlord, presumption would be that tenant had not paid rent.

Muhammad Ramzan v. Bashir Ahmad P L D 1967 Lah. 696 ref.

---S. 15--Issuance of receipts, in acknowledgment of rent--Proof- Statement of landlord that he had been issuing receipts to tenant on receipt of rent, held, could be corroborated by counter-foils of receipts produced by him.

Amin Master v. Abdul Rashid 1986 C L C 1551; Qamar Khan v. Rehmatullah 1984 C L C 1924 and Faiyazi Begum and others v. Zakiuddin 1986 C L C 1280 ref.

---S. 15--Receipts of rent--Signature of tenant whether necessary thereon--Landlord, held, was not required to obtain signature of tenant on receipts of rent which he issued to tenant nor was there any obligation on landlord to keep a joint receipt book for all his tenants.

---Ss. 15 & 21--Appeal by landlord against non-eviction of tenant Whether order of Rent Controller suffered on misconception of legal requirement, whereby non-payment of rent by tenant was treated as having bet paid, High Court in appellate jurisdiction set aside: such finding Rent Controller and ordered eviction of tenant.

Akhtar Mahmood for Appellant.

Attaullah Khan for Respondent.

Date of hearing: 29th September, 1986.

This appeal is directed against the judgment of 12th Senior, Civil Judge and Rent Controller, Karachi, dated 24-7-1984, where the application of the appellant for ejectment of the respondent w dismissed.

2. Briefly stated' the facts giving rise to this appeal are that the appellant is landlord of premises No. 87/A/423 situated in Malir Colony, Karachi. The respondent is the tenant of the said premises at a rent of Rs. 250 per month. The appellant has contended that he requires the premises in dispute for his personal bona fide use. Consequently he had requested the respondent to vacate the premises but he refused. The appellant has also alleged that the respondent had not paid any rent after March 1977 in spite of repeated demands. He is, therefore, liable for ejectment on both these grounds.

3. The respondent filed written statement in which she has alleged that she had been regularly paying the rent to the appellant but the applicant had never issued any receipt to her since inception of the tenancy. She has also denied that the appellant requires the premises for his bona fide personal use.

4. On the pleadings of the parties, following issues were framed by the Controller:

(1) Whether the applicant requires the premises in case for his personal bona fide use

(2) Whether the opponent has committed default in payment of rent

(3) What should the order be

5. He decided both the issues against the appellant and dismissed his application as shown above.

6. I have heard Mr. Akhtar Mehmood for the appellant and Mr. Attaullah Khan for the respondent.

7. The stand of the appellant as stated in his application was that the respondent had stopped paying rent from March 1977. In reply the respondent stated in her written statement that she was paying rent to the applicant regularly even after March 1977 but the applicant had never issued any receipt to her. Her case was that she was not at all a defaulter. The applicant had filed this application for ejectment as she had refused to yield to his demand for enhancing the rent.

During the course of evidence the appellant filed his affidavit and in order to refute the contention of the respondent that no receipts were being issued to her, produced the receipts book which contained 14 counterfoils of the receipts issued to the respondent from time to time and 36 unused receipts, in all 50 leaves of printed receipts.

As against this, the opponent filed affidavit of her husband Ismail who also acted as her attorney and that of her sons Zahid and Shahid. All the three witnesses stated that the opponent was continuously paying the rent to the appellant upto November 1978 but she had never issued any receipt to the opponent in spite of repeated demands.

The law on the point is quite clear. It is the duty of the tenant to prove that he had paid the rent to the landlord and in order to substantiate his allegation of payment of rent it was his duty to produce the receipts. No doubt it was the initial duty of the landlord to state A on oath that the tenant had not paid the rent and then the burden shifted upon the tenant to prove that he had paid the same. Admittedly in this case the appellant /landlord had not only stated in his application to that effect but also stated in his affidavit on oath that the respondent had not paid the rent to him after March 1977. The reply of the respondent in this connection was that she had been paying the rent and that the landlord had not been issuing receipts to her. She has not given any explanation for not insisting on receipts and for keeping quiet on the refusal of the appellant to issue receipts. If the tenant does not protest on the refusal of the landlord to issue receipts and keeps quiet on account of confidence that he reposes in the landlord then he has to thank Himself for the conduct. The presumption in such a case would be that the tenant had not paid rent. Reference in this connection may be made to the case of Muhammad Ramzan v. Bashir Ahmad P L D 1967 Lah. 696, where it was stated as follows:--

"6. It was then contended by learned counsel for the appellant that the learned appellate Authority based his finding of default of rent on an alleged admission made by the learned counsel for the tenant in the following words-

"The learned counsel for the respondent admitted, as indicated in Rent Controller's order on the 28th of September, 1959 that his client had been in arrears so far as the period from October 1957 to February 1959 was concerned and consequently, the respondent had rendered himself liable for eviction under section 13 (2) (i) of Ordinance VI of 1959."

Learned counsel for the appellant submitted that there was no such observation in the order of the Rent Controller passed oil the 28th September, 1959. This submission of the learned counsel is correct. That, however, does not alter the position as the fact remains that Bashir Ahmed applicant appeared as his own witness and stated that the tenant had not paid him rent since October 1957. The tenant controverted this statement saying that he had paid the rent but that he had never demanded any receipt because he had faith in the landlord. In cross-examination, he admitted that he was submitting accounts to the Income-tax Department since 1951 but that there was no entry in his account books regarding the payment of rent.

7. In this state of the evidence a mere assertion that rent had been paid would not carry the day."

Mr. Attaullah Khan who appeared for the respondent relied upon (1) Amin Master v. Abdul Rashid 1986 CLC 1551, and (2) Qamar Khan v. Rehmatulah 1984 CLC 1924 and contended that where the tenant was alleging payment of rent and adducing oral evidence and not producing the receipts of rent, the Controller could hold that there was payment of rent if the evidence produced by the tenant convinced him. I have gone through these rulings. These rulings are distinguishable from the facts of the present case. In both these rulings the landlord had admitted that he was not issuing the receipts. As such the Court was justified in holding that the tenant could not be asked to produce receipts of the payment of the rent. In the present case, the landlord has not made any such admission of non-issuance of receipts but has on the contrary insisted that he had been issuing receipts to the respondent and has produced the receipt-book containing the counterfoils. Finally, the Advocate for the respondent cited the case of Faiyazi Begum and others v. Zakiuddin 1986 C L C 1280 wherein it was held as under:--

"The appellant has stated that he had been regularly issuing receipts to the respondent. Once a landlord pleads that he had been issuing receipts to the respondent and the same is denied by the tenant then the burden is upon the landlord to establish that such receipts were issued as and when the occasion, arose. If the landlord is unable to produce documentary evidence of such facts then mere statement of the landlord to the effect that the tenant has defaulted in payment of rent should be corroborated by some proper and cogent evidence because in such circumstances the sole statement of landlord may not be sufficient to prove the default. The respondent had taken a consistent stand that the appellant had never issued any receipt of any type for the last 9 years. The appellant has not been able to establish that receipts were issued by him. In a situation where allegation is made that receipts were issued but has not been proved there remains word against word and, therefore, the Court while determining the question of default has to consider the circumstances, the conduct of parties and any other relevant evidence that may be available."

I have also gone through this ruling. I find that this ruling also does not apply to the facts of the present case. As already pointed out by me the appellant has not remained content with the assertion that he had been issuing receipts but has produced documentary evidence of having i6sued such receipts to the respondent from time to time. He has produced the receipt-book which contains as many as 14 counferfoils of receipts of rent issued by him to the respondent. Hence, as observed by Justice Saleem Akhtar in this ruling this is not a case of a landlord who was unable to produce decumentary evidence of such facts, and, therefore, it cannot be said that the statement of the landlord that the tenant had defaulted in payment of rent was not sufficient. Such statement no doubt requires corroboration. In this case the statement of the appellant landlord that he had been issuing receipts to the respondent tenant was corroborated by the counterfoils of the receipts produced by him and was, therefore, the proof of the fact that the appellant had been conscientiously performing his part of the duty.

The observation of Justice Saleem Akhtar who had decided the case of Faiyazi Begum may be usefully reproduced to clarify the position:

"In cases where the landlord claims that the tenant has defaulted in payment of rent, initially burden is upon him to establish that a default has beer, committed. To discharge such a burden the entire evidence available to prove it should be produced. If there is any documentary evidence it must be produced but where no documentary evidence is available, a statement on oath by a landlord that default in payment of rent for specific month has been committed by the tenant will be sufficient to initially discharge the burden which then shifts to the tenant who should produce evidence in rebuttal to establish that he has paid the rent. Therefore, once the initial burden has been discharged the tenant has to affirmatively prove, if alleged by him, that he has paid the rent."

Learned Controller has given two reasons for disbelieving the genuineness of the counterfoils of the rent receipts produced by the appellant First is that the counterfoils are not signed by the tenants.

The second is that the receipt-books of all the tenants of the applicant are not joint, and the receipt-books of the respondent /tenant has been kept separately. I find myself unable to agree with this reasoning of the learned Controller. Neither the Sind Rented Premises Ordinance, 1979 nor any other law for time being in force requires the landlord to obtain the signature of the tenant on the receipts of rent which he issues to the tenant, nor is there any obligation upon the landlord to keep a joint receipt book for all his tenants. The respondent's counsel was also not able to show us any such custom or usage prevailing in Sind. Hence I am of the clear view that the reasons given by the learned Controller for discarding the counterfoils of the receipts produced by the appellant/landlord are not cogent or convincing. Hence I do not see any reason to agree with the findings of the learned Controller on this point.

I am satisfied that the respondent has failed to prove that she had paid rent to the appellant after March 1977. I am, therefore, unable to uphold the finding of the learned Controller on the issue of non-payment of the rent.

I do not propose to deal with the finding on the issue regarding requirement of the premises for personal use for the time being as the finding on the issue of default in payment of rent would be sufficient to dispose of this appeal. An application under section 21 (3) of S. R. P.O., 1979 was also made by the respondent (C . M . A . 1935 of 1986) for recording additional evidence on the point that one Zakir Ahmed a tenant of the appellant of a flat on the ground floor of the same building had vacated the same which was still lying vacant and the appellant had not occupied that flat.

Since this application also related to the issue of requirement of the premises for personal use and I am not touching that issue, therefore, I do not propose to pass any order on this application as well.

These are the reasons for which I passed short order today, allowing the appeal and setting aside the impugned order of the learned Controller and directing the respondent to vacate the premises within four months from the date of order.

A.A./J-2/K Appeal accepted.

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