ALLAH DIN vs HABIB

1. ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave, calls in question the judgment and order of a learned Single Judge of the erstwhile High Court of Sind & Baluchistan, Karachi, dated 3-2-1979, whereby the Second Appeal of the appellant under section 15 of the Sind Urban Rent Restriction Ordi--nance, 1959, was dismissed.

2. Leave to appeal in this case was granted in order to examine the conten--tion, that in view of the conflicting conclusions reached by the Rent Controller and the First Appellate Court, the High Court should have undertaken the examination of the evidence itself and further to examine the evidentiary value of the receipt book on the plea of the appellant, which if excluded, would leave the case with the equally balanced evidence of the parties consisting of word against word on either side with no other material to support the plea of the respondent.

3. The respondent is the tenant of the appellant in respect of shop premises in dispute, situated in the Commercial Area, Liaquatabad, Karachi, at a monthly rental of Rs. 80 under the terms of a written rent deed between the parties, dated 17-11-1962, which inter alga, stipulated that the respondent shall pay rent to the appellant regularly every month for which he will either obtain a receipt or an endorsement on the rent deed. This rent deed was continued by means of a subsequent agreement, dated 29-7-1964, which substantially incorporated the same terms except that the stipulation with regard to the manner of obtaining receipt for the payments was omitted.

4. On 5-5-1970, the appellant brought an application for ejectment of the respondent alleging non- payment of. Rent on his part with effect from the month of May, 1969. The respondent contested the proceedings denying the allegation that he had committed default in the payment of rent as alleged and contended that he had always regularly paid rent "but he was never granted any receipt of payment as it was not customary with the landlord and the parties were having this relation for the last 6 years".

5. Before the Rent Controller each of the parties appeared as his own witness in support of his respective case and the appellant in addition produced the receipt book, with the assertion that he bad always issued a receipt whenever rent _ was paid by the respondent but no rent was paid since the period mentioned in his application.

6. On assessing the evidence adduced by the parties, the learned Rent Controller found against the respondent holding that he had committed wilful default in the payment of rent and ordered his ejectment, vide his order, dated 30-g-1971. Aggrieved by the order; the respondent challenged the order in First Appeal, which was allowed by the learned First Additional District Judge, Karachi, on 24-7-1972, on the ground that the receipt book could not be taken into consideration as evidence as it was not legally proved, inasmuch as the scribe of the counterfoils was not examined as a witness and if this evidence is excluded from consideration there remained only the conflicting versions of the two parties on the question of the payment of rent in their oral evidence on which no definite finding of non-payment of rent was possible without corroboration, when the onus of proof with regard to non-paym ent lay upon the appellant.

7. The Second Appeal filed by the appellant was dismissed by the learned Single Judge of the High Court on the ground that the question whether the respondent had committed default in the payment of rent was a pure question of fact which stood concluded by the judgment of the First Appellate Court and there was no reason to interfere with the: said finding of fact.

8. At the very outset, it may be stated that the learned Judge in the High Court was unfortunately not referred to the case of Mandan Gopal v. Maran Bepari ( PLD 1969 SC 617), in which this Court stated the law as to the jurisdiction of the Court of Second Appeal in case of conflicting findings reached by the trial Court and the First Appellate Court as follows :- "if the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from inter--ference in second appeal only if it is found to be substantiated by evi--dence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been dis--favoured in the contrary finding. The finding being at variance with that of the trial Judge the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded.

9. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."

10. In the light of the aforesaid principles, we have reached the conclusion that the judgment of the learned Single Judge is not sustainable as no effort was made by him to examine the reasons advanced in support of their respective findings by the two Courts below with reference to the evidence on record and no comparative assessment of such reasons was undertaken. We, therefore, find force in the contention on behalf of the appellant that the High A Court did not proceed in accordance with law in refusing to go into the finding of fact which was assailed on the ground that the receipt book was excluded from consideration on an erroneous view of the law that the scribe of the counterfoils contained therein, was not examined as a witness although the counterfoils were signed by the appellant who had proved his signature in his evidence.

11. We were taken by the learned counsel for the appellant through the judgments of the First Appellate Court and the Rent Controller. The learned First Appellate Court having held that the receipt book could not be consider--ed as evidence in the case, nonetheless utilised this evidence to reject the plea of the appellant by referring to the unissued receipts for the months of May to July, 1969, in coming to the conclusion that this went to show that no receipts were being issued to the respondent. On the question of onus of proof also, the learned First Appellate Court, adopted an approach wholly unwarranted in law by stating that mere non-production of receipts by the respondent did not necessarily raise the presumption that he had not paid the rent. In relying on this proposition, the learned Court did not take into consideration the fact that there is a written agreement of tenancy which stipulates for the payment of rent every month and it is well established that it is for the tenant to seek out the landlord and make the payment of rent. In view of the denial on the part of the landlord, that rent for the period in question was not paid by the respondent, the onus lay on the respondent to prove the factum of payment. In our opinion, the learned First Appellate Court erred in holding that since it was not possible to come to a definite finding on the question of non-payment of rent, discretion had to be exercised in favour of the tenant. In civil proceedings an issue is to be decided by preponderance of evidence and in case where there is a word against a word it is the party on whom lay the onus must fail. In Kaisar Khatoon v. Abdul Khaliq (PLD 1971 SC 334Hamoodur Rahman, C. J. Laid down the following dictum :- "The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion-(Vide PLD 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail."

12. It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13 (2) (i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, C therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27 (b), Specific Relief Act, 1877, in the case of Khairun-Nisa v.

13. Muhammad Ishaq (PLD 1972 SC 25 Applying the principle to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of' oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in Second Appeal. The conclusion is that the appellant has successfully estab--lished that the respondent had committed default in the payment of rent and is liable to be evicted from the premises.

14. For the foregoing reasons, we allow this appeal, and set aside the judgments and orders passed by the learned Single Judge of the High Court, as well as the First Appellate Court, with the result that the order of eviction passed by the Rent Controller shall stand restored. In the circumstances of the case, we leave the parties to bear their own costs.