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First Rent Appeal No. 501 of 1983, decided on 1^st July, 1987.

---S.15(2)(ii)--Default in payment of rent--Proof--On denial of receipt of disputed rent of premises by landlord, burden to prove payment of such rent would shift to tenant--Tenant failed to prove payment of rent either by producing any receipt in that respect or by reliable and convincing witnesses--Default in payment of rent, held, was proved in circumstances.

Muhammad Alam v. Noor Muhammad 1973 S C M R 606; PLD 1969 S C 65; P L D 1972 Lah. 603 and P L D 1982 Kar. 130 ref.

Gharib Nawaz for Appellant.

Muhammad Siddiq Mazhari for Respondent.

Date of hearing: 20th April, 1987.

Appellant Shaikh Haneef-ur-Rehman has preferred this appeal u/s. 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") against order of his Eviction from a rented premises viz. a Shop No. 2 on Plot No. 414-C. Block-II Commercial Area, P.E.C.H.S. Karachi, passed by learned 11^th Senior Civil Judge/ Controller, Karachi, on 12-4-1983 on the ground of default in payment of rent.

The impugned order was passed in Rent Case No. 4469/79 filed on 8-9-1979. The respondent Muhammad Jalaluddin, the owner/landlord, alleged that the appellant had not paid rent from April 1979, at the rate of Rs. 120 per month. The respondent /appellant resisted the eviction application, denying non-payment of rent. He took the plea that he had paid rent upto date but the landlord had not issued receipts, alleging that rent receipts were being issued after 4-5 months. He contended that he had paid rent through cheques also but the cheques were not encashed and, therefore, the rent was paid by pay order. He also advanced the plea that he had paid Rs. 57.31 towards electricity charges, which were payable by the landlord, and that he had deposited a sum of Rs. 104.28 with the K.E.S.C. for restoration of electricity connection misconnected on account of non-payment of electricity charges by the landlord, and that he had also spent a sum of Rs. 281 over repairs of the shop and he had thus paid Rs. 442.59. The parties adduced evidence. On behalf of the respondent /landlord, his attorney Ziauddin filed Affidavit, alleging that rent was not paid for 5 months from 1-4-1979 to 31-8-1979. He denied that the appellant /tenant had made payment of electricity charges and borne other expenditure. The appellant filed his own Affidavit, reiterating the same facts stated in the written Statement. He also filed Affidavit of two co-tenants by names Muhammad Kalimullah and Shamsul Haq. His son Shaikh Muhammad Haroon also filed Affidavit in support of his plea that he had paid the rent and had also borne electricity charges and repairs charges. Some documents also were filed. The learned Controller was convinced with the evidence adduced by the respondent on default in payment of rent and held that rent was not paid from April to August, 1979 and passed the impugned order of eviction.

The case of the respondent/ landlord was simple that the appellant/ tenant had not paid rent from April to August 1979. This fact was deposed to by his attorney Ziauddin. The burden of payment of rent therefore shifted to the appellant/ tenant to prove that he had paid the rent. The appellant did not produce rent receipts and took the plea that the attorney of the landlord, who used to collect the rent, was issuing receipts, at pleasure, after four five months, and he had not issued receipts for the rent paid for the period from April 1979 onwards. He did not produce any rent receipts for the preceding period to show that any receipt had been issued for rent of 4-5 months collectively. His plea that he had paid electricity charges and incurred expenditure over repairs did not entitle him to claim reimbursement thereof by withholding payment of rent, and, moreover, there is no credible evidence that he had made those payments at the instance of the respondent/landlord. The submission made by the learned counsel on this point do not advance the appellant's case in the circumstances mentioned above. The only point for consideration is whether any rent was paid/tendered by cheque/pay order. Particulars of the cheque and the pay order were not given either in the written statement, or in the Affidavit of the appellant of course, the respondent's' attorney Ziauddin did state in his Affidavit that a cheque was received from the appellant but it was dishonoured. This admission did not advance the appellant's case as regards non- payment of rent. Receipt of pay order was denied by the attorney of the respondent/landlord who used to collect rent. Reliance has been placed on a photostat copy of a letter Ex. O/1 dated 18-8-1979. Receipt of this letter has not been proved. Moreover, it makes mention of payment of rent for the months of June and July 1979. whereas default in payment of rent is alleged from April, 1979. The evidence of other witnesses of the appellant does not stand on better footing. It appears from fiver all appraisement of evidence that the appellant did not substantiate his plea that he had made payment of rent. The learned counsel for the appellant had relied upon a case reported in Muhammad Alam v. Noor Muhammad 1973 S C 11 R 606) to urge that there was practice of payment of rent in lump sure. The principle enunciated in that case destroys the fibre of the argument of the learned counsel as it was held that production of one solid receipt of payment in lump sum of three months rent would not lead to presumption of practice of payment of rent periodically. In this case, not a single receipt showing payment of rent in lump sum for more than one month was filed to justify raising that plea the learned Counsel has also cited three, cases viz. P L D 1969 S C 65; P L D 1972 Lah. 603 and P L D 1982 Karachi 130; while arguing that Affidavit of one of the witnesses of the appellant was not considered. But none of these cases touches such point. Moreover, the evidence of the left over witness was, of the nature as that of other witnesses, which teas not considered trustworthy and overlooking of such evidence of a witness does not seem to have caused any prejudice to the appellant. The learned counsel for the respondent has shown from the pleadings and the evidence on the record that there was default in payment of rent from April, 1979. Of course, rent for the months of July and August 1979 had not ripened into default in view of the provisions of clause (i) of subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, whereunder ejectment application was filed, providing that default in payment of rent in a case where agreement of tenancy does not subsist ensues on expiry of 60 days from the period for which rent is payable. The ejectment application in this case was filed on 8-9-1979. Accordingly, there was default in payment of rent for the period from April to June 1979 and the appellant was liable to eviction from the rented premises, on that account. The appeal merits dismissal and is dismissed with costs. The impugned order of the learned Controller dated 12-4-1983 is maintained. The appellant shall have to hand over vacant possession of the rented premises to the respondent. He is allowed one month time to make compliance of the ejectment order.

H.B.T./H-58/K Appeal dismissed.

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