1989 PLP 539 (MLD)

Saeed Ahmad Shah stated in his affidavit that he knows the parties. He stated that on occasions it so happened that late Mashaikuddin and his son used to pay rent of the shop in his presence and he used to give Wajihuddin a friendly advice to obtain receipt from the respondent. In response to the evidence. Wajihuddin used to say that the respondent used to say that this friendly matter and as he was witness to the fact that the respondent took rent without giving receipt; there was no need in any event of giving him receipt. To a question in cross‑examination he replied.that the appellant did not act on his advice of receiving rent receipt from the respondent. To a suggestion in cross‑examination he replied that late Mashaikuddin paid rent to the respondent in his presence. Late Mashaikuddin filed his own affidavit wherein he stated that due to infirmity caused by old age as well as on account of the fact of his sight failed, he had given charged to his son Wajihuddin to run the shop for last seven years. He stated that the respondent never gave any receipt for the rent received by him as the practice in area where the shop is situated. He denied the suggestion that he did not pay rent of the shop since last eight years. He admitted that only at the inception of tenancy agreement was executed. He denied the suggestion that fresh agreement was executed between the parties after installation of the electric sub meter in the shop. To a suggestion in cross‑examination he replied that there is a common electric meter and he used to pay electric charges for the common meter of all the three shops. He admitted the suggestion that electic connection was disconnected for want of payment as the bill of Rs. 300 was refused by him as the electricity was consumed by all the tenants including respondent. To a question he replied that nothing was signed by him in presence of Chughtai. He admitted the suggestion that application was signed by him but with the help of someone as he was not in a position to sign on his own accord, due to the poor health. He also admitted that he always used to demand rent receipt. To a suggestion in cross‑examination he stated that his son never wrote a letter to the respondent for issuing receipt and he never protested in writing. A.B. Chughtai Handwriting Expert filed affidavit‑in‑evidence and stated therein that he had given a report. The report dated 24‑8‑1981 is annexed to the affidavit. He also annexed photo copy of letter dated 22‑3‑1975 (marked A) photostat copy of agreement dated 22‑6‑1967 (Annexure marked B), photostat copy of agreement dated 22‑6‑1967 (marked A/2), rent receipt dated 16‑11‑1974 (markad A/3), rent receipt dated 16‑9‑1974 (marked A/4) and rent receipt dated 16‑10‑1974 (marked A/5), agreement dated 15‑12‑1966 (marked B/2), application (marked B/3, agreement dated 22‑6‑1967. He opined that signatures marked A, A.1, A.2, A.3, A.4, and A.5 have not been written by the same person who has written the signatures marked B, B.1 and B.2. The two group of signatures have been written by two different persons. The admitted documents and questioned documents were sent to Mouladad Khan and Ahmed Abdul Rashid Khan. They submitted their reports. Ahmed Abdul Rashid Khan submitted his report dated 29‑3‑1986. He opined that signatures G.H. and L have not been written with the hand of late Mashaikuddin. Ghulam Abbas Jaffery opined that letter dated 22‑3‑1975 (marked L), receipt No.156 dated 16‑9‑1974 (marked K), receipts dated 16‑10‑1974 and No. 158 dated 16‑11‑1974 are not in agreement with those of the signatures marked as B on Hajj passage, C on lease agreement dated 15‑12‑1966 and `A' Passport No. K/1268 dated 19‑11‑1970. Mouladad Khan, Handwriting Expert also opined the same. Ahmed Rashid Khan and Mauladad Khan were examined and cross‑examined by the learned counsel for the parties before the Commissioner. The tenants' version was that there was only one tenancy agreement dated 15‑12‑1966 (Ext. A/1). The tenant denied (i) execution of subsequent agreement dated 22‑6‑1976 Exit. A/2), (ii) letter dated 2‑3‑1975 (Ext. A/3). The landlord forged signatures of the tenant appearing on rent receipts. The Controller found that letters Exts. A/4, A/6, A/8 were sent to the tenant. The Controller discarded the evidence of A.R. Chughtai handwritting Expert on the sole ground of interested witness. The Controller compared the signatures on the disputed documents with the admitted signatures and came to the conclusion that the signatures resembled with each other. The Controller also found that the tenant executed two agreements. The eviction application was presented on 21‑5‑1979 under section 15(2) of the Sind Urban Rent Restriction Ordinance, 1979. Keeping in mind the main object of the enactment, namely, restriction in the increase of rent and eviction of the tenants therefrom, principle that emerges from the several decisions is that default to be regarded as deliberate default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. If the default was due to accident or inadvertence or erroneous of false sense of security based upon the conduct of the landlord himself, the default cannot be said to be wilful default. It is not possible to lay down and hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and deliberate or wilful default should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the prior conduct of the tenant consisting of chronic defaults or non‑issuance of rent receipts taken along with totally false and reckless plea of discharge or any other wholly untenable plea may amount to default. But at the same time, certain pleas raised by the tenant, but negatived by the Controller on assessment of the evidence adduced by the landlord and the tenant, may constitute proof of bona fides on the part of the tenant, as to rule out any theory of default. In my opinion so long as the defence version or explanation of the tenant that there was no default or rent was paid regularly and no rent receipt was issued by the landlord has not been ruled out or rejected as utterly worthless or wholly false, and if his case was one which required consideration in the hands of the Controller or Court involving and necessitating a proper appraisal of the evidence adduced on both sides, in such a setting of the case, it must be held that there was no default. In cases, where the evidence mainly consists of the interested testimony I of the landlord and tenant on either side, the Controller or Court should not lightly and readily prefer the evidence of one party to the other ignoring the probabilities of the case and prior conduct and actings of the parties. In the instant case Mashaikuddin became a tenant with effect from 16‑12‑1966 vide agreement of tenancy dated 15‑12‑1966 and was paying a monthly rent of Rs. 100 per month. The landlord's case was that the said Mashaikuddin did not pay rent from 16‑11‑1974. The deposit amount of Rs. 3,000 was adjusted from 16‑11‑1974 upto 15‑4‑1977 and a sum of Rs. 2,600 was due for the period from 16‑4‑1977 upto 15‑5‑1979. The tenant's case was that .the rent had been regularly paid by him in the presence of witnesses. However, the respondent always kept putting off giving receipts on the pretext that the receipt book was not available or that he would purchase a fresh receipt book. The Controller after discussion of the rival versions of the parties rejected the case of the tenant and ordered eviction. The ultimate conclusion of the Rent Controller has already been stated earlier in this judgment from which it would be clear that he made no effort to focus his mind on the points involved in this case. The result therefore is that I am thrown back upon the reasoning, and the 3coiiclusion of the Rent Controller. The record shows that the tenant was inducted in the disputed shop with effect from 16‑12‑1966. From the inception of tenancy upto the date of filing the eviction application, the respondent did not issue any rent receipt to the tenant. The respondent stated in his eviction application that the tenant had to pay electric charges according to the meter reading, in accordance with the lease agreement. The respondent did not annex the copy of agreement alongwith the eviction application. The respondent relied on (i) rent receipt and (ii) agreement only. The tenant pleaded in his written statement that "the rent has been regularly paid by the opponent in the presence of witnesses. However the applicant always kept putting off giving receipts on the pretext that the receipt book is not available or that he will have to purchase a fresh receipt book. Furthermore even assuming that the rent had not been paid since 1974 and even after adjusting the deposit of rent it is incredible that the appellant should wait nearly two years before filing the case". The Rent Controller has totally ignored this important setting and background of the case especially when the evidence consists of interest testimony on either side. Secondly it is wholly conceivable and understandable that the tenant if really he was guilty of default in the payment of rent from 16‑11‑1974 upto 15‑5 1979 would pay rent on 13‑10‑1979 m the presence of witnesses. I see considerable force in the argument of the learned counsel for the appellant', that the agreement dated 15‑12‑1986 was executed between the parties, why the parties should enter into another agreement on 22‑6‑1967 during the continuation of the first agreement. This background again has been completely overlooked by the Controller. The Controller held that letters Exh

5. A/4, A/6 and A/8 were sent to the tenant and the respondent discharged the burden by producing copies of letters and certificate of posting. I am, of the view that where it is shown in evidence that an envelope containing a letter was posted under certificate of posting with correct name and address of the addressee and was not returned back, a presumption arises under the law that such letter has'been delivered to the addressee. However, the presumption of service shall stand refuted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him. In such a case the initial burden of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling the postman concerned who delivered the letter. In the case before me the statement of respondent regarding service of letters Annexures A/4, A/6 and A/8 was challenged by the attorney of the original tenant who denied the suggestion in cros‑examination about receipt of the letters. In this state of evidence in my view the presumption regarding sending of letters to the tenant arising under Section 114 of Evidence Act was sufficiently rebutted and burden of proving sending of letter remained on the respondent which, in the circumstances, could only be discharged by calling the postman concerned. I, therefore, hold that sending of letters was not proved to the original tenant. Further on a reading of the order of the Controller, I find that it is vitiated by a misconception and misreading of the evidence of the appellant and his %witnesses including A.R. Chughtai. The Controller disbelieved the evidence of the (tenant and his witnesses on the ground that the tenant executed agreement dated 22‑6‑1967 and letter dated 15‑3‑1974. If the evidence is properly read as a whole, it will be seen that version of the tenant is correct. The documents agreement dated 22‑6‑1967 and letter dated 22‑3‑1974 were not written by the tenant. The counter‑foils of the receipts were also not signed by the tenant. Agreement of tenancy (Ext. 6/4) was executed on 15‑12‑1966. This agreement was for 11 months. The alleged tenancy agreement (Ext. 5) was executed on 22‑6‑1967. This agreement was also for 11 months commencing from 1‑3-1967. I have perused both the agreements. A perusal thereof shows that the terrors and conditions of both the agreements are same. The tenant deposited Rs. 3,0000 on 15‑12‑1966 and again on 22‑6‑1967 the tenant deposited Rs. 3,

000. In this view of the matter the tenant deposited Rs. 6,

000. As per agreement dated 22‑6‑1967 the tenant had to instal a sub‑meter in the shop at his own cost and the amount was to be according to the electricity consumed by him. There is nothing on record to show that the tenant had installed the sub‑meter in his shop. On the contrary, I find photo copy of the letter dated 21‑5‑1980 of Controller of Building, Nazimabad Zone, addressed to the respondent. This copy is annexed to the affidavit of the tenant's attorney. A perusal thereof shows that the tenant never got any connection from Meter No. AL‑161739 as alleged by the respondent. It is an admitted fact that there are more than two shops in the building owned by the respondent. The respondent produced receipt book (Ext. A/1/2). Th4 serial number is from 101 to

200. First receipt is dated 1‑5‑1971 and the last receipt was issued on 16‑11‑1974. A perusal of counter‑foils would show that the receipt book pertains to two shops only and the names of the tenants Khalid Ahmed and Mashaikuddin. The handwriting expert compared the signatures on the admitted documents, i.e., agreement dated 15‑12‑1966 (Ext. C/5), vakalatnama in Rent Case No. 2711 of 1979 signed by Mashaikuddin. Signatures on passport, application for Hajj passage with the questioned signatures on agreement dated 22-6‑1967 (C/6), letter dated 22‑3‑1975, counter‑foil receipts Nos. 156,157 and

158. They opined that the prominent characteristics of the disputed signatures are not in agreement with those of the signatures on agreement dated 15‑ 12‑1966 (C/5), vakalatnama, passport and application for Hajj passage. Nothing has been elicited in the course of cross‑examination of A.R. Chughtai, Mouladad Khan and Rashid Ahmed Khan to show as to why their opinion should not be accepted. I have considered the evidence on record and reached the conclusion th91t the statements of the handwriting experts are cogent or convincing enough to lead to a definite conclusion. They admitted that signature on the disputed documents i.e. Ext‑C/6, counter‑foils Nos. 156, 157, 158, letter dated 22‑3‑1975 are not in agreement with those of the signatures on Ext. C/5, vakalatnama, passport, application for Hajj passage. The cursory examination of these documents would bear out the obvious disparity between the signatures on Ext. C/6, counter‑foils Nos. 156, 157 and 158 and letter dated 22‑3‑1975 and the admitted signatures of the documents. The learned counsel for the respondent contended that comparison of handwriting as.a, mode of proof of hazardous and the learned counsel for the appellants should not have placed any reliance on the opinions of the handwriting experts. The handwriting experts A.R. Chughtai was examined before the Controller, Mouladad Khan and Rashid Ahmed Khan who have been examined in this case before the Commissioner appear to be men of considerable experience. They have given detailed reasons for reaching the conclusion that the disputed signatures are not in the same hands as admitted signatures of late Mashaikuddin. Nothing has been elicited in the course of the cross‑examination of the handwriting experts of their impartiality. Having regard to all these circumstances, I am unable to accept the contention on behalf of the respondent that the disputed signatures on these documents are in the hand of late Mashaikuddin. Receipt Book Ext. A/1/2 contains serial numbers 101 to

200. Out of these only 158 receipts were issued. These were issued to two tenants namely Khalid Ahmed and Mashaikuddin. Out of these only three counter‑foils bear the disputed signatures of Mashaikuddin. The counter‑foil was not signed by the other tenant. It is not denied that late Mashaikuddin was the tenant since 15‑12‑1966 and he had not made any default in payment of rent upto 15‑11‑1974. The version of the respondent is that deposit amount of Rs. 3,000 was adjusted from 16‑11‑1974 up to 15‑4‑1977. The eviction application was not filed in 1977 but filed after lapse of about two years. It appears to me rather incredible that late Mashaikuddin, who was admittedly paying rent regularly since 15‑11‑1966, without any default, suddenly allowed the respondent to adjust the rent from deposit of Rs. 3,000 and thereafter himself to go for arrears for 26 months, thus inviting application for his eviction from his landlord. I feel that the non production of receipt by late Mashaikuddin has been given as exaggerated importance by the Controller. It is not unusual for old tenants, like those placed in the position of late Mashaikuddin, not to insist on the execution of receipts, thus avoiding to express openly lack of faith in the honesty of purpose of the respondent. The fact that last rent collected was on 13‑10‑1979 cannot 'be doubted, as the statement of the appellant on this point was not at all contradicted and the respondent simply met it by a vague reply that it is incorrect that the tenant had paid rent upto October, 1979. In the case of Mst. Anwari Begum v. Noor Hassan (1984 CLC 265) it has held that "no rent receipts issued by landlady and her 'entire case rested on her sole oral evidence‑‑Tenant's oral testimony regarding payment of rent to contrary supported by documentary evidence in shape of money order and cheques, there being also enmity between parties‑‑Default, held, not proved." Mr. Mirza Abdul Rashid in support of his contention placed reliance on decisions reported in 1984 CLC 1843, 1985 CLC 30, 1985 CLC

908. The propositions laid down in these decisions arc unexceptionable. In keeping with the principle enunciated in Allah Din v. Habib PLD 1982 SC 465 it has been held in the foregoing paragraphs that the burden to prove the payment for the disputed period was on late Mashaikuddin who, as has been discussed above, has discharged the burden. He has successfully rebutted the respondent's allegation that he was in arrears of rent for the disputed period. For correctly assessing the relative value of the oral evidence of the respondent and his witnesses and the tenant, his attorney and witnesses, the Controller has not taken into account, that, with regard to the other points in controversy, the respondent has proved himself to be a deliberate liar, and spoken several falsehood. The Rent Controller has found that the respondent had even brought into existence the letter (Ext. A/1/3) alleged to have been writter, by A.W. 2 late Mashaikuddin, for the purpose of bolstering up his false case that presented a receipt book and requested the landlord to adjust Rs. 3,000 lying deposit with him and thereafter he will vacate the shop. This was resorted with a view to make out case for default. The respondent claimed Rs. 4,818 on account of electric charges. I have already stated in earlier part of this judgment that no sub‑meter was installed in the shop in dispute. The perusal of electricity bill dated 22‑3‑1979 shows that the charges for the month of March, 1979 were Rs. 10.02 and the amount of arrears comes to Rs. 4,807.78. There is nothing on record that the amount pertains to one shop or more than one shop including respondent's premises. I have no hesitation in holding that the finding of the Controller that the tenant was guilty of default is clearly erroneous and perverse and cannot possibly be supported. The main background and the probability of the case have been ignored, the oral evidence has been misread and misunderstood, the disputed signature on the counter‑foils being Nos. 156, 157, 158 and letter dated 22‑3‑1975 and agreement dated 22‑6‑1967 was wrongly held as admitted signature of Mashaikuddin, and the necessary inference flowing from the conduct of the tenant has been ignored. The finding of the Controller that letters dated 17‑10 1978, 10‑4‑1979 and 12‑8‑1979 were despatched by the respondent. The receipt of these letters was denied. The landlord ought to have summoned the postman of were delivered to the tenant. This finding is also erroneous. For all these reasons, the appeal is allowed, and the order of the Controller is set aside. The application for eviction filed by the respondent is accordingly dismissed. In the circumstances of the case, the parties shall bear their own costs. H.B.T./M-709/K Appeal allowed.