MUHAMMAD UMAR HASAN Versus TAHZIBA KHATOON

1. This First Rent Appeal is directed against the order, dated 18‑5‑1982 passed by the Xlth Rent Controller, Karachi whereby the eviction application filed by the respondent was allowed and the appellant was directed to vacate the premises in case and hand over the vacant peaceful possession to the respondent within sixty days from, the date of order.

2. The facts which give rise to this appeal are that the appellant is tenant and in possession of shop premises adveasuring 12 x 12 square feet in the Taj Market, Makhdoom Shah Colony, Pakistan Bazar, Orangi Township No. 11 Karachi since January, 1976 on monthly rent of Rs.120. The said Taj Market was owned by late Bismillah and on his death the same devolved upon his surviving wife Mst. Gulshan Begum and four sons. The said Taj Market was sold and transferred to the respondent, vide deed of assignment, dated 19‑3‑1979. The respondent filed Eviction Application No.1660 of 1980 on the ground of default with effect from 1‑3‑1979. The respondent served legal notice, dated 11‑12‑1979 stating therein that in spite of the knowledge of the transfer of ownership, the appellant failed and neglected to pay rent to the respondent with effect from 1‑3‑1979. The appellant received the notice and even after receipt thereof the appellant neither paid arrears of rent nor executed any agreement of tenancy with her. The appellant filed written statement, and denied the rate of rent and the allegation of default in payment of rent. According to him the rate of rent is Rs.80 per month and not Rs.120. He averred that he started paying rent to the respondent and made such payment upto November, 1979 but no rent receipt was issued to him by her. After November, 1979 the respondent demanded enhanced rent which he refused and the respondent stopped receiving rent.

3. The respondent examined her husband and attorney Abdul Ghafoor. In rebuttal the appellant examined himself and two witnesses namely Fahimuddin and Sharruddin.

4. The learned Rent Controller on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.1 in the affirmative and allowed eviction application vide order, dated 18‑5‑1982.

5. The appellant being aggrieved by the aforesaid order, dated 18‑5‑1982 of the XIth Rent Controller, Karachi has preferred this appeal on the grounds mentioned in the memo. of appeal.

6. Mr. ‑Ibrahim U. Mojawalla the learned counsel for the appellant has contended that the learned Rent Controller has grossly erred in holding that the appellant is a defaulter.

7. On the other hand Mr. Masood Shaharyar, the learned counsel for the respondent has submitted that the order of the learned Rent Controller is in accordance with law.

8. The respondent landlady in her eviction application has made the statement in paragraph 4 that despite the knowledge of change and transfer of ownership from its previous owner to the respondent the appellant failed and/or avoided to pay the monthly rent of Rs.120 with effect from 1‑3‑1979 onwards. In reply the appellant in his written statement has stated that the appellant has always been regular in the payment of rent to his landlady and has paid rent upto November, 1979 but the respondent never issued any rent receipt to him but thereafter the respondent had been pressing the appellant to increase the monthly rent but due to unavoidable circumstances the appellant showed his inability to meet his illegal demands of the respondent. The appellant has stated in his cross‑examination that Bismillah was the owner of the shop‑market. He paid rent to the ex‑landlady but she did not issue rent receipt. It is significant to note that there were different versions of the appellant with regard to the payment of rent. In his written statement and affidavit‑in‑evidence he has stated that he paid rent with effect from 1‑3‑1979 upto November, 1979 to the respondent but he did not issue rent receipt but in his cross‑examination he has stated that he paid rent of the ex‑landlady but she did not issue any rent receipt.

9. The husband and attorney of the respondent was cross‑examined at length but no suggestion was made to him in his cross‑examination about non‑issuance of rent receipts. The respondent before filing eviction application served notice dated 11‑12‑1979. The appellant received the notice but did not remit the arrears of rent to the respondent within thirty day's from the receipt thereof.

10. Mr. Ibrahim. the learned counsel for the appellant, has placed reliance on money‑orders which were not sent by appellant but by Younus. The respondent refused to accept those money orders as those were not sent by his tenant but by some one else. I am of the view that these money orders are not helpful to the appellant as he himself did not remit rent. In these circumstances in order to consider the correct legal position with regard to the burden of proof is to be considered. The Hon'ble Supreme Court has considered the above question with regard to proof in the case of Allah Din v. Habib P L D 1982 S C 465. It was observed as under:‑

11. "It is no doubt correct to say that the initial buy den 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, 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. Muhammad Ishaq."

12. Applying the dictum laid down by the Hon'ble Supreme Court to' the facts of this case, it may be pointed out that the appellant in his written statement and affidavit‑in‑evidence has stated that he paid rent to the respondent upto November, 1979, but he did not issue rent receipt. In his cross‑examination he has stated that he paid rent to ex‑landlady but she did not issue rent receipt and no suggestion was made to the attorney of the respondent who appeared in the witness box. The evidence of the parties is consisting of oral assertions and the issue could only be decided, as observed in the above decision of the Hon'ble Supreme Court, that is, the tenant had failed to discharge the onus to prove the factum of payment.

13. For the aforesaid reasons, 1 find that the order of the learned Rent Controller is in accord with the evidence on record and the appellant has failed to discharge the onus to prove the factum of payment. In these circumstances, I find no force in the appeal, which is dismissed with no order as to costs. However, I allow four months time to vacate the premises provided, he continues to deposit rent in accordance with the tentative rent order.

14. H.B.T. Appeal dismissed.