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First Rent Appeal No.334 of 1984, decided on 7th May, 1987.

---Ss.14, 15 & 20--Ejectment on ground of default in payment of rent--Landlord in his cross-examination deposing that he never issued rent receipts to tenant from assessment year 1969 who was paying rent regularly to landlord--No complaint either in ejectment application or in deposition of landlord that tenant was not paying him rent regularly--No good reason for not accepting statement on oath by tenant that he had paid the rent in dispute to landlord--Tenant was never served any notice for payment of rent prior filing ejectment application--Evidence available on record establishing that the tenant had paid the rent for the months in question to landlord and who as per practice did not issue the rent receipts--Order of .eviction set aside--Finding of Rent Controller with regard to rate of rent being based on good and sufficient reasons, not interfered with and confirmed.

M. Zaki Ahmad for Applicant.

Bashir Ahmed Sheikh for Respondent.

This First Rent Appeal is directed against the order, dated 16th February, 1984 passed by the VIth Sr. Civil Judge/ASJ and Rent Controller, Karachi, whereby he has allowed the Ejectment Application No.3123/81 of the respondent on the ground of default in payment of rent and directed the appellant to vacate the premises in dispute within two months from the date of the order.

2. The facts giving rise to this appeal are that the respondent filed an application under section 15(2) (ii) (iii) (a) (vii) of the Sind Rent Premises Ordinance in the Court of VIth Senior Civil Judge and Rent Controller, Karachi on 16th July, 1981 stating that he is the landlord of shop premises No.10/721 Liaquatabad, Karachi of which the appellant is his tenant on an agreed monthly rent of Rs.225/- The appellant had defaulted to pay rent from February 1981 to January 1981. He also stated therein that he required the demised shop in good faith for his own use and occupation as he has been doing his business on the artificial room (Dochati) constructed within the said shop premises.

3. The appellant resisted the ejectment application by filing written statement denying that the monthly rent was Rs.110/- and not Rs.225/- p.m. He also claimed to have paid the rent upto July, 1981. He further pleaded that he had given iron bars to the respondent worth Rs.4,560/- for the construction of shop which amount the respondent had not returned to him. He also denied that the respondent's contention that he required the premises for his bona fide personal use was incorrect. According to him, the respondent wanted to dispose of the shop on higher rent and pugree.

4. The learned Rent Controller framed the following points for determination:

"(1) Whether the opponent is defaulter in payment of rent

(2) Whether the applicant requires the premises for his bona fide personal use

(3) What should the order be "

5. The respondent filed his own affidavit-in-evidence as well as affidavit of one Alam Zeb son of Mir Zaman, a neighbour, who were cross-examined by the counsel for the appellant. In rebuttal the appellant filed his own affidavit-in-evidence and he was also cross examined by the respondent's counsel.

6. The Rent Controller, on the basis of the evidence produced by the parties, decided the issue No.1 in the affirmation and issue No.2 in the negative and thus allowed the ejectment application on the ground of default only vide his impugned order.

7. The appellant being aggrieved by the said order dated, 16^th February 1984 has preferred this appeal.

8. I have heard M/s. M.Zaki Ahmed, learned counsel for the appellant and Bashir Ahmed Sheikh, learned counsel for the respondent. I have also gone through the relevant record including the deposition of the witnesses and the documents Ex.5 and Ex.6 which have come on record through the applicant. This is a case, as rightly observed by the Rent Controller, where there is word against word about the payment of rent. The learned Rent Controller has proceeded on the premises that the appellant has not led any evidence to the effect that he had paid the rent to the respondent. It was his duty to take the receipt of the amount paid to the respondent. If the respondent, according to the learned Rent Controller, was not issuing the rent receipts then it was open to the appellant either to have sent the rent by money order or to deposit the same in Court. Having failed to take his recourse to any of these forums it was the appellant who had to suffer. The learned Rent Controller has also held that appellant was liable to pay the rent at Rs.225/- and not Rs.110/- per month as claimed by him. It was under the circumstances that the learned Rent Controller has held that the appellant is a defaulter in payment of rent and has allowed the application for eviction as stated above.

9. After careful perusal of the deposition of the parties I am of the opinion that in the facts and circumstances of the case the approach of the learned Rent Controller is not proper and free from fallacy. Normally it is for the tenant to prove the payment of rent. However, in the circumstances of this case it is an admitted fact as has been deposed to by the respondent in his cross-examination that he never to the appellant or to the tenant of another is admittedly the tenant of the shop right from the assessment year 1969 and since then paying the rent regularly to the respondent inasmuch as there is no complaint either in the application for ejectment or in the deposition of the respondent that the appellant was not paying the rent to him regularly or that he was a defaulter in payment of rent. In view of the above admission coupled with the statement on oath by the appellant that he had paid the rent to the respondent I think there is no good reason for not accepting this plea of the appellant. The respondent did not serve any notice on the appellant at any time for payment of rent of complaining of his having committed default in payment of rent at any time prior to the filing of the application. If the appellant had been making the payment to the respondent without getting the receipts for so many long years then it was necessary for the respondent to have either change the practice of not issuing the receipt and to notify to the appellant that in future he would be required to obtain the receipt and without getting the receipt the payment of rent will not be acknowledged. This was admittedly not done. The respondent straightaway has filed the application for ejectment stating that the appellant had failed to pay the rent from the month of February, 1981 till June, 1981. The statement on oath of the appellant to the contrary cannot lightly be brushed aside. If the respondent himself created a practice which was also adhered to by both the parties of paying and receiving the rent without issue of the receipt by the respondent the default in payment of rent on the part of the appellant cannot easily be held to have been committed. The respondent has also not made out the circumstance which could have compelled or prompted the appellant to have stopped paying the rent. No substantial evidence is thus available on record on the basis of which it could be said that the appellant had reasonable cause for not paying the rent to the respondent which he has been paying all along without any demur. On the contrary what I find is that in the application an allegation has been made that the appellant was trying to dispose of the shop in question on goodwill basis. If it was the intention of the appellant to dispose of the shop on pugree as alleged in the application then he would not have afforded to earn ill-will or displeasure of the respondent by not making the payment of rent regularly to him. He could not have disposed of the shop premises in question without getting the receipts changed in the name of the incoming tenant and that was possible only when the respondent was in no manner displeased with the appellant. Moreover, the statement on oath made by the appellant in his affidavit to the effect" that there have been friendly terms between me and the applicant. On account of said terms, the applicant never issued rent receipts to me nor I ever insisted for the same" has not been challenged in the cross-examination.

10. On the basis of the aforesaid evidence available on record I have come to the conclusion that it has been established that the appellant had paid the rent for the months in question to the respondent and who as per practice not issued the rent receipts.

11. In view of the foregoing discussion the appeal is allowed and the order of eviction is hereby set aside. There will, however, be no order as to costs.

12. Before parting with the case I would like to add that the finding of the learned Rent Controller with regard to the rate of rent being Rs.225/- per month is based on good and sufficient reasons and I do not find any justification to interfere therewith. That finding confirmed.

S.Q./S-88/K

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