SAGHIR HUSSAIN Versus KHURSHID FATIMA

1. This Rent Appeal under section 21, Sind Rented Premises Ordinance, 1979 has been filed to challenge the order dated 31‑8‑1986 of Second Senior Civil Judge, Karachi West. A Rent Case No.2/85 was filed by respondent Khurshid Fatima on the ground of default of payment of rent from 1‑9‑1984 to 31‑12‑1984. A written statement was filed by the appellant in which it is stated that in the first week of Dec. 1984 respondent contacted the appellant and he paid her Rs.1,500 towards the rent for the months of September October and November, 1984 but she had not issued receipts. Thereafter he was asked to enhance the rent to Rs.1000 which appellant refused and the rent case was filed.

2. Respondent landlady examined Mohammad Shoab her son in support of her case while the appellant examined himself and one Tahir Abbas his brother.

3. I heard Mr. Zafar Hadi Shah for appellant. It is contended by the learned counsel that rent for three months was paid in cash to respondent Mst. Khurshid Begum and there is no default. It is also argued that there was no practice of issuing rent receipts which has been admitted by the attorney of the respondent. Reliance is placed on the case, reported in 1986 S C M R 185, 1986 C.L.C. 1770 and 1986 C.L.C. Pages 1785‑1778.

4. Mr. Mohammad Usman appearing for the appellant contended that appellant has not paid the rent and they were in habit of withholding the rent for months together therefore, he has committed default, It is argued that burden of proof lies on the tenant. He has referred to case P L D 1982 SC 465 and 1986 C L C 726.

5. Mr. Mohammad Anwar husband of Khurshid Fatima filed an affidavit‑in evidence but during the pendency of the case he died and his evidence was not concluded. As such her son Mohammad Shoab attorney, was examined. He stated that in the month of August, 1984 husband of respondent demanded the rent from appellant but he did not pay and similarly he failed to pay the rent in the month of October and again the rent was demanded and he paid the amount of Rs.1000 towards the rent of months of July and August, 1984. In spite of that appellant withheld the rent for the months of September and October. He stated that on 5‑11‑1984 receipt for the rent of July and August was acknowledged. He produced it Ex.A/2. He has stated that notice was also sent to appellant to pay the arrears but he did not pay the rent. He produced copy of notice dated 27‑12‑1986 as Ex.A/3. Appellant in his evidence stated that he is tenant since 1978 but no rent receipt was issued to him and first time respondent issued receipt for the rent of July, 1984 and August, 1984 for the reason that he had to show the receipt to the Excise and Taxation Department and assured that in future he will not issue any rent receipt. He has stated that in the first week of December Mst. Khurshid Fathma came to his house and asked for money and he paid Rs.1500 towards the rent being for the months of September, October and November, 1984 and no receipt was issued. Thereafter the rent for the month of December was sent to her by Money Order in January, 1985 which she refused. He has produced Money‑Order receipts. Tahir Abbas in his evidence stated that on 5‑11‑1984 the husband of respondent came to his house and asked the appellant to pay rent for two months for July and August, 1984 to which his brother paid such amount and such receipt was issued. He has stated that Anwar assured in future no receipt will be issued as by this time they had to show the receipt to the Excise and Taxation Department. He has stated that in the beginning of December respondent contacted his brother who paid Rs.1,500 towards rent for September, October and November, 1984 but no receipt was issued. The husband of the respondent again contacted for enhancement of rent to which his brother did not agree.

6. The relationship of the landlady and tenant and the rate of rent is not disputed. The appellant in para. 3 of the written statement stated that he paid the rent upto October, 1985. This written statement was filed on 17‑1‑1985. It is also stated in the written statement that the amount of Rs.1500 being rent for the months of September, October and November, 1984 was paid to the respondent in the first week of December but no date is given. It is thus clear that the rent for three months was not paid upto December, 1984 by the respondent. The rent case was filed on 2‑1‑1985. The receipt for two months of July and August 1982 shows that the appellant paid this rent on 5‑11‑1984 from which it is clear that by 5th November, 1984, rent for September and October was not paid. It is a case of the appellant that accumulated rent for September, October and November was paid A in December This version is not supported by any documentary evidence that there was such practice. The default is very clear Had he any intention he could have cleared rent upto October, on 5‑11‑1984 when admittedly the rent for July and August, 1984 was paid on 5th November, 1984. The default is proved and that is allegation in the rent application that the appellant is in habit of withholding the rent for months together. There is no written agreement between the parties and according to law it is binding upon the tenant to pay the rent to landlord every month. The written statement itself is contrary in which it is stated that the appellant had paid. the rent to the respondent upto October, 1984, whereas in the evidence he claims they have paid rent for the months of September, October and November, 1984 in the first week of December to the respondent. In view of the facts stated above the default has been proved and Rent Controller has rightly allowed the rent case of the respondent. The appeal having no merit is dismissed with no order as to cost.

7. A. A./S‑177/K Appeal dismissed.