MUHAMMAD SHAH ALAM vs MUHAMMAD ABDUL GHAFOOR

ORDER

1. G. SAFDAR SHAH, J.---The dispute in this case relates to a shop situated at Moti Bazar, Rawalpindi.

2. On 24.5-1972 the respondent herein (who is the landlord of the said shop) filed against the petitioner (his tenant) an application in the Court of Rent Controller, Rawalpindi for his eviction on throe grounds; (1)for default in paying him the rent since 1970 ; (2)that he required the shop reasonably and in good faith for his ownuse, and :

(3) that the respondent had carried out alterations in the shop which materially impaired its utility.

3. Mr. Bashir Ahmad Ansari, the learned counsel for the petitioner has assailed the impugned judgment of the High Court only on issue No. 1 which is to the following effect "Whether the respondent has duly paid or tendered for payment the rent of disputed shop from April, 1970 to the date of institution of this application 7 He argued that by answering the said issue against the petitioner the Courts below, including the High Court, have misread the evidence on record. In this respect, he referred to para. 2, of the eviction application filed by the respon--dent in the court of Rent Controller as well as his evidence and pointed out that whereas in his said application he had alleged that the petitioner ha failed to pay him the rent since April, 1970; in his evidence in Court he took up the contrary position saying that he had paid him the rent up to 1970. His grievance, therefore, is that in view of the said patent and apparent contradiction between his pleadings and his evidence recorded in Court, the, courts below, including the High Court, ought 'to have dismissed his application. In support of his contention, he relied on Rameshwar Narain Singh v. Rani Reknath Koori (A, I R 1923 Pat. 165) and Peddi Reddi Jogi Reddi v. Panem Chinnabbi Reddi and others (AIR 1929 P C 13).

4. By going through the relevant evidence on issue No. 1, the judgment of the Courts below, including the High Court, and the said two authorities relied upon by the learned counsel, we are satisfied that the contentions raised by him has no force in it. It is true that the respondent does seem to have contradicted himself as alleged by the learned counsel but the learned Additional District Judge has painstakingly considered all the nuances of the same and satisfactorily explained the said seeming. Contradiction. The view taken by him is that the evidence of the respondent was recorded in the Court of the Rent Controller op 3-6-1976 i.e, 4 years after the institution of the ejectment proceedings and consequently it was possible that he had forgotten the month of the year 1970 in which the petitioner had committed default for the first time. Furthermore, upon the issue framed in respect of the alleged default committed by the petitioner, he cannot be said to have been misled as in there it had been clearly mentioned that the alleged default committed by him was from the month of April, 1970. The learned counsel has not been able to dispute this position, nor indeed was able tot show as to how the petitioner can be said to have been prejudiced.

5. The two authorities relied upon by the learned counsel do not advance his case in any manner. In AIR 1929 P C 13 the view taken was that the Courts below have thrown the onus upon the defendant of proving that the properties he claimed were his own, instead of placing it as it should be upon the plaintiff, the question of fact found cannot be binding upon an appellate Court on a second appeal. The learned Rent Controller in this case had, no doubt, wrongly placed the burden of proof in respect of issue No. 1 on the petitioner in the sense that he expected to have been produced the rent receipts when admittedly no rent receipts had ever been issued to him by the respondent, but in the Court of the Additional District Judge the position was rectified. The view taken by him is that in view of the established practice existing between the parties, namely, that the respondent never used to issue any receipt to the petitioner and that the petitioner in his own handwriting, used to record all payments made by him on account of rent in diary Exh. P. W. 4/1 maintained by the respondent, the latter had successfully discharged the initial burden that the petitioner had committed default in paying him the rent. By the examination of the exhibited portion of the diary as well as the un-exhibited portion on which reliance was placed before him on behalf of the petitioner, he noted that on 7-7-64 the petitioner was in arrears of rent amounting to Rs. 653 Proceeding from this premise the learned Additional District Judge proceeded to calculate whether amount was paid by the petitioner to the respondent on account of rent and reached the conclusion that he had committed default in paying rent with effect from April, 1970. With this finding of the learned Additional District Judge which has been approved by the High Court; the learned counsel for the petitioner does not seem to have any disagreement as he has not questioned the same during his arguments.

6. The view taken in AIR 1923 Pat. 165 is that if the evidence tendered in a case is consistent both with the allegation of the plaintiff as well as the denial of the defendant, the plaintiff must fail. This seems to be the correct principle of law but upon the peculiar facts of this case, it is of no use to the petitioner. In view of the evidence of the respondent which received due corroboration from diary Exh. P. W. 4/1 it cannot be said that his evidence was consistent both with the allegation made by him in the eviction application as well as the denial thereof by the petitioner. In fact, the respondent seems to have clearly proved his case whereas the bare denial of the petitioner that he had committed no default was found- by the Courts below, including the High Court, as insufficient to non-suit the respondent. Furthermore, the learned Rent Controller as well as the Additional District Judge both found the conduct of the petitioner as inequitable. The finding recorded by them is that he even denied the title of the respondent wholly contumaciously and thus disentitled himself from seeking any equitable relief in the proceedings. The fact that this finding is borne out from the allegation made by him 'in the written statement, we are satisfied that the petitioner rightly lost the sympathy of the Court. , This petition, therefore, fails and is dismissed.

7. However, the petitioner is allowed, as from today, three months' time to vacate and hand over the possession of the suit shop to the respondent subject to his paying him the agreed rent.