MUMTAZ AHMED vs Mst. RAZIA ZAHEER

1. This appeal is directed against order dated 30th April, 1991, passed by the IVth Senior Civil Judge and Rent Controller, Karachi (Central) in Rent Case No.1078/1988, whereby the eviction of the appellant was ordered on the ground of default in payment of rent from 1-4-1988 to 30-11-1988.

2. Briefly the facts are that late Zaki Hussaain, who was owner of the Property No.II-A/4/20, Nazimabad No.2, Karachi, had filed the above case against the appellant/tenant on the ground of default for the period stated above. However, he died during the pendency of the Rent Case and the present respondent who is daughter of the aforesaid deceased landlord, applied to be joined as a party on the basis of acquisition of the exclusive ownership rights under the deed of relinquishment and desclaimer dated 30th March, 1989, executed by all other legal represetnatives of late Zaki Hussain in favour of the respondent. The respondent was allowed to be substituted in place of the said late Zaki Hussain and, as stated above eviction was ordered.

3. The learned Advocate for the appellant has firstly contended that the respondent could not, under the provisions of the Sindh Rented Premises Ordinance, 1979, seek eviction on the ground of default in payment of rent of the period, when she was not the owner of the property, nor was assigned the right to recover the sa'd rent by the original owner as such she was not entitled to the rent of the said period. He has relied on the case of Mazaharul Islam and another v. Mst. Mafia (PLD 1991 SC 835), wherein while interpreting section 8 of the Transfer of Property Act, 1882, it is observed that in absence of any express provision in the sale-deed or assignment deed authorising the purchaser/transferee or the assignee to recover the arrears of rent/profit of the period prior to the transfer of the property in his favour, the transferee cannot claim the same or consequently seek eviction on the ground of nonpayment of rent for the said period. It was further observed that right to recover arrears of rent is an actionable claim which is assignable by execution of instrument independently from the transfer of the property in favour of the person other than the purchascr/transferee of the property. Secondly, it was contended by the learned counsel for the appellant that the Respondent in absence of fetters of administration had no authority to be joined as a party in the rent case.

4. In so far as the first submission is concerned, the difference between acquisition of right to recover the rent under section 8 of the Transfer of Property Act, 1882 is to be distinguished from the right to pursue the proceedings for eviction of the tenant on the ground of default, commenced by the predecessor of the transferee and is pending before the Rent Controller. The above distinction has been highlighted by their Lordships of the Supreme Court in the very judgment which has been relied upon by the learned counsel for the appellant. It is observed: "It seems to be a well-settled proposition of law that if during the pendency of the ejectment proceedings on the ground of default the property is sold,, the purchaser/transferee can continue to prosecute such proceedings for his benefit."

5. Their Lordships have noted the following cases on the said proposition:--

(1) Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another (PLD 1976 Karachi 53);

(2) Muhammad Hafeez v. Muhammad Suleman and another (1979 CLC 757);

(3) Zahoor Ahmed Qureshi v. Syed ljaz Ali Rizvi etc. (1980 CLC 1223);

(4) Muhammad Ishaque v. Abdul Haque and 2 others (1982 CLC 665);

(5) Arshad Mahmood Siddiqur v. Muhammad Haroon (1984 CLC 1750);

(6) Abdul Rauf v. Nawab Ali and 3 others (PLD 1986 Kar. 117);

(7) Dr. M.B. Anklesaria v. Azizuddin Najmai (1984 MLD 119) and

(8) Khuda Bux and another v. Teekoomal and another (1986 CLC 1923).

6. With regard to second submission, it may be pointed out that under Muslim Law, a presumptive heir on death of his predecessor acquires all rights in the property by operation of law and does not need any letter of administration under Succession Act, 1925 for exercising the proprietary rights in respect of the property so inherited. Therefore, the above objection also fails.

7. On merits, the defence taken by the appellant was that the rent for the period from 1-4-1988 to 31- 7-1988 was paid but no receipt was issued and the rent of the subsequent months was sent by money orders which were declined. It is alleged that subsequently on the intervention of well- wishers rent from August, 1988 to November, 1988 was paid to the deceased.

8. Non-payment of rent is a negative fact. The respondent in the evidence tendered on her behalf having denied receipt of the rent for the disputed period, the burden of proof shifted to the appellant to prove affirmatively that he had paid or tendered the rent for the period in question.

9. The only evidence produced by the appellant is his oral assertion that the rent was paid to the deceased who did not issue the receipt. He did not even examine any of the so-called weil-wishcrs, on whose intervention rent for the subsequent period was paid to the deceased, as alleged by him.

10. Under these circumstances it cannot be said that the appellant had discharged the burden p proof. The settled law is that in civil proceedings issue is to be decided by preponderance of evidence and in case where there is a word against the word, it is the party on whom lay the onus must fail. Reference may be made to the cases of Qaiser Khatoon v. Abdul Khaliq (PLD 1971 SC 334) and Allah Din v. Habib (PLD 1982 SC 465).

11. The appeal is, therefore, dismissed being without any substance. By consent the appellant is allowed four months' time to deliver the vacant possession to the respondent.