HABIB AHMAD vs LIAQUAT HUSSAIN

1. ' This appeal has arisen from the facts and circumstances which are stated in brief as follows. The respondent Liaquat Hussain who is the owner of the shop bearing No, H-141/9, in Malir Colony, Karachi, filed an ejectment application on 20-8-1983, seeking ejectment of appellant Habib Ahmed, his tenant from the said shop on the sole ground of default in payment of rent @ Rs, 200 per month, for the period from October, 1982 to July, 1983. The appellant resisted his ejectment disputing the plea of the default and averred that -the rate of rent was Rs, 100 per month.

2. ' The learned Rent Controller after considering the .Evidence of the parties allowed the ejectment application, directing the appellant to handover vacant possession of the disputed shop to the respondent within thirty days of the order passed on 9-4-1984. Dissatisfied with this order, the appellant has filed the present appeal. After hearing the arguments addressed at the Bat', by the learned counsel for the parties and also after going through the relevant record, the appeal was allowed by short order dated 15-9-1985 for reasons to be recorded separately. Following are the reasons in support of the short order.

3. ' It is an .Admitted position that the tenancy involved in this case was created subsequent to coming into force of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). Therefore the first thing to be considered is whether the agreement of tenancy concluded between the parties in the instant case is in accordance with the provisions of tile Ordinance. In this connection section 5 of the Ordinance is relevant as it deals with execution of agreement. It reads as under : "(5) Agreement between landlord and tenant. -(1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall he attested by, signing by, and sealing with the seal of, the Controller within whose-jurisdiction the premises is situated or, any Civil Judge or First Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement. Is not so registerable, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant ' Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance."

4. It would be noticed from the subsection (1) of above section that every agreement by which any premises is to be let out has got to be reduced to writing. The use of word "shall" in the said subsection denotes the intention which clearly is that it is mandatory for the parties to have such agreement in writing. In other words the oral agreement in respect of such transaction will have no legal force and hence will not _be permitted to be used as the basis far any litigation in respect of any matter including ejectment of tenant under the Ordinance. This is clear from subsection (2) hereinabove which requires the written agreement to be produced and accepted as proof of the relationship of landlord and tenant between the parties.

5. In view of the legal position stated hereinabove, the respondent, in the instant case, could not base his application of ejectment on the oral agreement and as such the application for eviction of the appellant based on such agreement was incompetent. The respondents, if so desired, could seek the ejectment of the appellant at legal forum other than the Court of Rent Controller, if so permitted by any law. Perhaps he. Could have recourse to civil Court for this purpose. Thus the learned Rent Controller had no jurisdiction to entertain the ejectment application which could be dismissed for want of written agreement alone.

6. ' On merits of the case it is not disputed that the appellant is the tenant in respect of the shop in question, of which the respondent is the owner/landlord. The only ground on which the ejectment application is based is default in payment of rent. This is however denied by the tenant won has also stated the rate of monthly rent to be Rs, 100 and not Rs, 200 as claimed by the landlord. In view of the controversy between the parties over the rate of rent, the burden was obviously on the landlord to prove this point. Apart from his personal affidavit, the landlord/respondent has produced in evidence the affidavit of his witnesses Muhammad Umar and Munshi Noorul Hassan.

7. No doubt they have supported the respondent on the question of rate of rent but it is not clear from their statement as to now and in what circumstances they happened to be present at the time of conclusion of the agreement of tenancy between the parties, particularly when the agreement was not reduced to writing. Both these witnesses are close neighbours and they are known to him for over 15 to 20 years. One of them namely, Muhammad Umar has even admitted his friendly relations with the respondent. Another witness Munshi Noorul Hassan admits that he meets the respondent daily in the Masjid at prayers time. I am doubtful if these witnesses were present at the time of fixation of rent between the parties. They seem to have given obliging statements in favour of the respondent on account of their neighbourly connections with him. If their statements are excluded from consideration there is left only oral word of the respondent against the oral word of the appellant as regards the rate of monthly rent. As pointed out above the respondent is required to prove his case by written agreement. Since such agreement is not forthcoming, his oral word cannot be accepted in proof of rate of rent.

8. ' As far default in payment of rent, the case of the respondent as disclosed in the ejectment application, is that tenant has committed default in payment of rent from October, 1982 to July, 1983. As stated above it has been vehemently denied by the appellant in his written statement wherein he has taken the plea that the respondent had, in fact, refused to accept the rent for the month of August, 1983 as he was unwilling to pay him the rent at enhanced rate of Rs, 200. Since the parties were at variance over the question of the default, the burden was on the tenant to prove that he had actually paid the rent for the disputed period. On this point also there is word against word. The appellant has relied upon his personal affidavit-in-evidence in order to show that he has paid the rent for this disputed period at the rate of Rs, 100 per month whereas the respondent has affirmed in his affidavit-in-evidence that the tenant is in arrears of the rent for the disputed period i,e, October, 1982 to July, 1983.

9. Reference is invited to subsection (2) of section 10 of the Ordinance which makes it compulsory for the landlord to acknowledge the receipt of rent in writing. According to subsection (4) of the same sectio such written acknowledgment shall have to be produced and accepted in proof of the payment of rent. In the instant case it is an admitted position that the respondent/landlord did not ever issue written acknowledgment for receipt of the rent from the tenant and as such no rent receipts have been produced in this case. Since the respondent has not cared to issue rent receipts in compliance with the mandatory requirement of law, be cannot insist upon the appellant to prove the payment by normal practice of moducing rent receipts. In that case the oral statement of the appellant which is on oath has to be accepted unless it is shown to be untrustworthy and unreliable. There is no material on record casting any shadow of doubt on his testimony. It goes unchallenged. It was argued by the learned counsel for the appellant that bad the appellant had really committed the default as has been pleaded by the respondent, the latter would-not have-waited for ten long months before approaching the Court for seeking ejectment of the appellant. The ejectment application has been filed on 20-8-1983. It is in respect of the period of default running between October, 1982 to July, 1983. This shows that the respondent tolerated the appellant's default for such a long period which seems incredible and lends support to the appellant's plea that it was actually from August, 1983 that the dispute started between the parties.

10. ' Apart from above it is not denied that from August, 1983 the appellant has been depositing the rent in Court. This further goes to show that he had paid the rent for the prior period i,e, the disputed period.

11. ' The learned counsel for the respondent has placed reliance on the case of Allah Din v. Habib (1), wherein it was held :- "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)(0 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 status 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

(1) PLD 1982 SC 465 onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question."

12. The proposition laid down in the above reported case is unexceptionable. In; keeping with the principle enunciated in the said case it has been held in the foregoing paragraphs that the burden to prove the payment for the disputed period was on the appellant who, as has been F discussed above, has discharged the-burden. He has successfully rebutted the respondent's allegation that he is in arrears of rent for the disputed period. Accordingly the authority referred to above is of no help to the respondent.

13. ' In view of the above discussion the appeal was allowed by short order dated 15.9-1985 as stated above.