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First Rent Appeal No.848 of 1986, decided on 1st April, 1987.

---S.15(2)(ii)--Ejectment on ground of default in payment of rent- Landlord asserting not to have received disputed rent of premises- Onus to prove payment of such rent shifted on tenant--Failure of tenant to discharge such burden, held, would render him liable to be ejected on ground of default.

Muhammad Abdul Karim for Appellant.

Abdul Waheed Kanjo for Respondent.

Date of hearing: 19th February, 1987.

This First Rent Appeal is directed against the order dated 26-8-1986 passed by the 3rd Sr. Civil Judge and Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to vacate the premises and hand over the same to the respondent within 60 days from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is the owner and landlady of the property bearing No.86/C/2, PECHS.' Karachi and the appellant is tenant in respect of Flat No.4 on second floor at the monthly rent of Rs.350/. The respondent filed eviction application being Rent Case No.1894/84,(new No.391/1985) on the ground of default in payment of rent for the period from 1-1-1984 to 30-4-1984 and also on the ground of personal requirement. The appellant filed the written statement and resisted the eviction application. The appellant pleaded that he paid the rent to the respondent upto April 1984 but the respondent did not issue rent receipts. The appellant also pleaded that he offered rent for May 1984 but the same was refused by the respondent and thereafter he remitted the rent through money order which was also refused. Ultimately the appellant had deposited rent in Misc. Rent Case No.1696 of 1984. The appellant also denied the ground of personal requirement.

The respondent filed the affidavit-in-evidence of her husband and duly constituted attorney in support of the eviction application. The respondent and attorney was cross-examined by the learned counsel for the appellant. On 16-7-1986 the learned counsel for the appellant filed a statement and stated no instructions from the appellant. As such the side of the appellant was closed on 16-7-1986 and the case was adjourned for final arguments to 9-8-1986.

The learned Controller on the basis of evidence adduced try the parties and taking into consideration the arguments advanced by the learned counsel for the respondent, decided m issue No. 1 in the negative and issue No.2 in the affirmative. The eviction application was allowed only on the ground of default vide order dated 26-8-1986. The appellant being aggrieved against the order dated 26-8-1986 of the 3rd Senior Civil Judge/Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

The respondent in para 2 of the eviction application averred that the appellant was in arrears of rent for the period of 4 months from 1-1-1984 to 30-4-1984. The appellant filed written statement and denied the contents of para 2 of the eviction application and stated that he had paid rent to the respondent upto April 1984 but the respondent did not issue rent receipts for the disputed period and kept the appellant on promises. It is the further case of the appellant that he offered rent for May 1984 but the same was refused by the respondent. It is his further case that he remitted the rent through money order which was also refused and ultimately he deposited the same in Misc. Rent case No.1696 of 1984. The respondent's husband and duly constituted attorney filed affidavit-in-evidence in support of the eviction application and reiterated the same facts as stated in the eviction application. The husband and attorney denied the suggestion in cross-examination that the appellant paid rent for the disputed period and he did not issue rent receipts. He also denied the suggestion that the appellant wrote a letter to him nor issuance of receipts which he had refused to receive. It is that the said witness was not confronted with the letter. The torn, admitted the suggestion that the money order for the month of May 1984 was sent to him but as it was not containing rent for the disputed period, it was refused. It is an admitted position that the appellant did not file any affidavit-in-evidence. The respondent averred in eviction application that the appellant committed default in payment of rent for the disputed period. The respondent's husband and attorney appeared in the witness box and supported the assertion made in the eviction application. The respondent had successfully discharged the burden of proof and the onus was shifted to the appellant but the appellant did not discharge the burden. It was for him to prove that he paid the rent for the disputed period. In this view of the matter the conclusion is that the respondent has successfully established that the appellant had committed default in the payment of rent and is liable to be evicted from the premises.

For the foregoing reasons I dismiss this appeal and affirm the order of the learned Rent Controller. However, the appellant is allowed four months' time to vacate the premises. In the circumstances of the case, I leave the parties to bear their own costs.

The above are the reasons of my short order dated 19-2-1987 after conclusion of the arguments of the learned counsel for the parties.

H. B. T./I-11/K Appeal dismissed.

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