ABDUL MATEEN Versus MUHAMMAD HUSSAIN

This Appeal is directed against the eviction order dated 27‑8‑1989 passed by a learned Controller, Hyderabad directing eviction of the appellant from the shop premises bearing C.S. No.B‑1862/5, Ward 'B', Tilak Chart Hyderabad on the ground of default in payment of rent from April, 1977 till the filing of the ejectment. By the same order learned Controller held that sub letting of the shop by the appellant in favour of respondent No.2 i.e. Noor Muhammad as pleaded by the respondent No. l was not proved.

2. Appellant is the tenant of the demised premises at a monthly rent of Rs.125 by virtue of rent agreement Exh.34, dated 15‑6‑1974 valid for a period of eleven months with effect from 1‑7‑1974 with stipulation that the rent was payable on or before 5th of each calendar month. His ejectment was sought on the ground of default in payment of rent with effect from April, 1977 as well as subletting in favour of respondent No.2.

3. Appellant resisted the eviction proceedings and filed a written statement denying the default in payment of rent categorically maintaining that rent had been paid to the respondent‑landlord till September, 1978. He further pleaded that when the rent for October and November, 1978 was offered, the respondent refused to accept the same for the reason that he wanted to enhance the rate of rent from Rs.125 per month to Rs.400 per month. Appellant, therefore, was obliged to remit the rent for the months of October and November. 1978 by money order, dated 27‑12‑1978 which having been returned undelivered, he remitted the rent for October, November and December, 1978 by money order, dated 10‑1‑1979 which too was returned undelivered. Later on, with the permission of the Controller he deposited rent in miscellaneous rent case in the name of the respondent‑landlord. Likewise he denied subletting in favour of respondent Noor Muhammad and explained that the later is the tenant of another shop belonging to Zainab Begum widow of Ashique Ali in which he is carrying his own business.

4. Both the parties adduced evidence. While the respondent examined himself, his brother Ahmed Hussain and a tenant of the adjoining shop, namely, Misbahauddin, appellant Abdul Mateen besides adducing his own evidence led tile evidence of respondent Noor Muhammad, Muhammad Younus and Saghir Ahmed.

5. On assessment of evidence, learned Controller found the appellant in default in payment of rent and directed his eviction while on the issue relating to subletting he held otherwise giving rise to the present appeal, Learned counsel for the respondent‑landlord has also filed cross‑objections to the appeal assailing the finding on the issue relating to subletting.

6. Both the learned counsel have addressed this Court and assisted me in examining the evidence on record.

7. Adverting to the issue relating to default, it may be observed that initial burden of proof of default on the landlord and once he enters the witness-box and denies the receipt of rent due against a tenant, onus of proof is shifted to the tenant who is legally required to affirmatively establish by satisfactory evidence that in fact he has paid the rent due and there is no default on his part. In the instant case while the landlord stated that he had received rent up to March, 1977 thereafter appellant stopped the payment of rent which was not paid till filing of the rent case on or about 3‑5‑1979. Conversely the case of the appellant is that in fact rent was regularly paid to the landlord till September, 1978 whereas rent for the months of October and November, 1978 on being refused he was obliged to remit the same by money order which was returned undelivered. It is further his case that he remitted rent for three months by another money order which too was refused and not accepted obliging him to invoke the jurisdiction of the Controller with whose permission he started depositing monthly rent in the office of the Controller, first deposit being made on 21‑2‑1979.

8. In his evidence respondent No. l reiterated the facts narrated above and took a categorical stand that no rent was paid to him or received by him after March 1977. It may be observed that the tenancy between the parties is as old as 15th June, 1974 and the terms of the agreement postulate that tenant shall pay rent at the rate of Rs.125 per month to the landlord on or before the 5th of each calendar month after obtaining a receipt from him. Clause (2) of the agreement further emphasises that without receipt no amount shall be considered to have been received. In the face of specific denial of receipt of rent by the respondent landlord it is for the appellant to show by reliable evidence that in fact he had paid the rent due within time. No doubt, he stated about regular payment of rent in his written statement but for the first time he submitted photostat copies of rent receipts when learned Controller called upon him to show cause as to why he may not be directed to deposit the arrears of rent due against him as alleged In his order, dated 25‑11‑1979 learned Controller took photostat copies of the receipt from April, 1977 to September. 1978 into consideration but even at that stage respondent‑landlord disputed these receipts for the reason that they did not bear his signatures Considering it to be a matter for evidence, learned Controller in his wisdom tentatively directed the appellant to deposit arrears of rent from April, 1977 to October, 1979 at the rate of Rs .125 p.m. within two months and to deposit future rent before the 15th of each calendar month.

9. The sole argument canvassed on behalf of the appellant with regard to the payment of rent for the disputed period is that the appellant did not only pay rent regularly up to September, 1978 but also produced rent receipts for this period purportedly issued by the respondent‑landlord. Respondent No. l on his part disputed the issuance and genuineness of these receipts even at the stage of order directing the deposit of rent which was passed on 25‑11‑1979. From the written statement of the appellant it transpires that the appellant did not make any mention of the rent receipts issued by the respondent‑landlord in his favour and he simply claimed that he had regularly paid the rent up to September. 1978, He did not care to submit copies of the rent receipts alongwith the written statement. Be that as it may, for the first time receipts reflecting the payment of rent bearing Serial Nos.35 to 51 were produced in evidence on 13‑5‑1980 when he moved an application under section 151, C.P.C. for permission to cross examine respondent No. 1. By consent this application was granted and he was allowed to cross‑examine the respondent. It was during the course of cross-examination of respondent Muhammad Hussain that he produced the aforesaid receipts but the witness stated that he used to issue rent receipts on payment of rent but the rent receipts bearing 35 to 51 were not issued by him. He explained that he maintained counterfoils of the rent receipts issued by him and in order to reinforce his submission he produced the receipt book in respect of the rent receipts issued by him Exh.35.

10. A glance at the receipt book produced by the respondent‑landlord tends to show that counterfoils from Serial Nos.35 to 100 in this printed book are blank and intact. In fact the receipts produced by the appellant during the cross-examination of the respondent‑landlord have been tagged to this book by means of a pin without exhibiting the same. Notwithstanding non‑exhibition of these receipts I have compared the same with the printed receipt honk counterfoils of the receipts not disputed by the appellant. There is a marked distinction between the receipt book produced by the respondent and loose receipts produced by the appellant. In the receipt book Exh.35 serial number of the receipt preceded by the word (Number) in Urdu whereas the receipts produced by the appellant bear the word "No" in English indicating the serial number. Besides in the receipt book there are dot marks in the lines and the place left for writing the amount with legible and clear ink and the word ( Ropia ) in Urdu whereas there are straight lines with dim printing in the space for writing amount as well as the word (Ropia ). Moreover the writings on the receipts produced by the appellant do not tally with the writing on the counterfoils of the admitted receipts.

11. I am also forfeited in my view by the admissions of the appellant himself in his cross‑examination. He admitted the suggestion that up to the filing of the rent application whenever he paid rent, rent receipt was issued by the respondent. He did not remember as to when did he lastly pay rent to the landlord. Likewise he did not remember as to when was the last rent receipt issued to him by the landlord. He was not able to say whether he had paid rent for the month of April, 1977 or not. These replies on the part of the appellant himself are sufficient to warrant a finding that the plea regarding payment of rent raised by him is neither true nor bona fide. For these reasons, I am clearly of the view that apart from the fact that the appellant failed to prove the issuance of receipts for payment of rent by the respondent‑landlord the receipts produced by him are neither true nor authentic.

12. Even otherwise there is no reason for the respondent‑landlord to deny the receipt of rent or issuance of ‑rent receipt when he has been regularly accepting the rent and issuing rent receipt each month to the appellant. It is inconceivable that a landlord after the receipt of amount of rent and issuing receipts in his hand or under his signature would muster the courage to knock the door of Rent Controller for eviction of his tenant on the ground of default in payment of rent.

13. Adverting to the issue relating to subletting of the premises by appellant in favour of respondent No.2 there is no adequate and convincing evidence in support of the allegation. This allegation is disputed by the appellant as well as respondent No.2 in their respective statements on oath. In his own evidence respondent No. 1, his brother Ahmed Hu'ssain and witness Misbahauddin however stated that 'the appellant has sublet the disputed shop to Noor Muhammad who runs his business through one Abdul Rahim and supervises the same by himself. There is thus a word against a word and hardly any evidence worth consideration to support the case of the respondent‑landlord.

14. In order to create a subletting right to exclusive possessions and enjoyment of property should be conferred upon or assigned to sub‑lessee. Since the respondent failed to establish the transfer of exclusive possession of the premises in favour of respondent No.2 appellant is not liable to eviction on the ground of subletting. Learned counsel for respondent No.1 referred to the evidence of respondent's brother Ahmed Hussain who stated that in September, or December, 1978 he saw the respondent No.2 sitting on the shop in question and asked him about his presence when he replied that he had taken the shop in question from the appellant. This witness, however, admitted that respondent No.2 has also another shop. So‑called admission by respondent No.l , is inadmissible. Respondent's second witness, namely, Misbahauddin was also constrained to admit that Noor Muhammad has a separate shop. It is the case of the appellant as well as respondent No.2 that this respondent is the tenant of Mst. Zainab Begum widow of Ashique Ali at Tilak Chari in which he is doing his business under the name and style of "Venus Optical House". In my view there is satisfactory evidence on record to show that there was no transfer or possession of the shop premises by the appellants in favour of respondent No.2 who being his maternal uncle some times used to sit and run the shop on his behalf. Casual presence at the shop and looking after the business of a person would not by itself amount to transfer of possession and enjoyment of the tenanted premises and at any rate would not amount to subletting within the meaning of the term. To my mind learned Controller was, therefore, justified in rejecting this plea of the landlord which is not open to an exception.

15. For the aforesaid facts and circumstances, there is no merit in this appeal which trust fail and is hereby dismissed. Appellant is directed to hand over vacant possession of the premises to the respondent within sixty days.

H.B.T:/A‑67/K Appeal dismissed.