1990CLC336 (PLP)

‑‑‑S.15‑‑Default in payment of rent‑‑When there are no rent receipts, the tenant must prove the actual dates on which rent had actually been paid by the tenant. Fazal Ahmad Khan Saleemi v. Mrs. Anwar lqbal 1987 C L‑C 1638 fol. (c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑‑S. 15‑‑‑Default in payment of rent‑‑‑Contention of tenant that landlord did not issue any receipt for rent paid‑‑‑Relations between landlord and tenant strained right from the first day of commencement of fresh tenancy agreement‑‑Tenant, held, was expected to be more careful in payment of rent when relations with landlord were strained‑‑‑Tenant should have not paid the rent without obtaining receipt or any other documentary proof of payment and if the receipt had not been issued on first occasion the rent thereafter should have been deposited in Court. Adam Ahmad Thaqia v. Muhammad Hanif 1988 C L C =1703 distinguished. Hafiz Abdul Baqi for Appellant. Arif Hussain for Respondent. Date of hearing: 25th September, 1989. Appellant/landlord had sought the ejectment of the respondent on the solitary ground of default in the payment of rent from April 1986 to July 1986 and the defence of the respondent/tenant is that he had paid rent but receipts had not been given by the appellant. The appellant examined himself in support of his allegation whereas the respondent examined himself as well as his son who both deposed that rent was paid to the appellant. On the basis of this evidence learned Rent Controller came to the conclusion that the appellant/landlord had failed to discharge the burden of proving the default in payment of rent and vide judgment dated 24‑3‑1987 dismissed the ejectment application. Hence this appeal.

2. Learned Rent Controller was obviously in error when he stated in the last para under issue No.1 that the appellant had failed to discharge the burden of proving the default in payment of rent alleged to have been committed by the respondent. There are a number of reported judgments in which it has been repeatedly held that when a landlord deposes on oath that his tenant had not paid the rent for any given period of time, then the onus placed upon the landlord for proving the default stands sufficiently discharged and it is then for the tenant to prove affirmatively that he had paid the rent for the disputed period. One such judgment is reported in P L D 1982 SC 465 (Allah Din v. Habib). It is a Full Bench judgment in which it is held that non‑payment of rent is a negative fact which stands sufficiently proved if the landlord appears in the Court and states on oath that he had not received the rent for the disputed period and that when the landlord had done this, the burden of proving the payment of rent for this period shifts upon the tenant who must prove affirmatively that he had paid or tendered the rent. I am surprised that this judgment was cited before the learned Rent Controller who has even mentioned it in the impugned judgment but has chosen to ignore it on the untenable ground that the facts of the case in the said judgment were different from this case and, therefore, this judgment was not applicable in this case. This is a perverse observation of the learned Rent Controller. The facts of the case in this judgment are, for all practical purposes, the same as in the present case and this judgment is fully applicable to the present case. Since the burden of proving the payment of rent for the disputed period lay upon the tenant, the evidence on the point is very material and any contradiction in it cannot be brushed aside by saying that since the payment was made a long time ago, the tenant cannot be expected to remember the exact mode of payment. I refer to the last sentence in the cross‑examination of the respondent in which he stated that he had himself paid the rent from April 1986 to July 1986 and to the cross‑examination of respondent's son Mohammad Arif Shah in which he stated that rent from April to July 1986 was paid by him. Both these assertions are very definite and there is no vagueness about them and the obvious contradiction in them renders the payment of rent extremely doubtful. The respondent stated that he had paid the rent for the disputed period whereas his son said that he had paid rent and the learned Rent Controller has very unreasonably referred to some earlier portion of the cross‑examination of the appellant and deduced from it that the contradiction had been sufficiently explained by the respondent. As a matter of fact, the portion of the cross‑examination of the respondent, quoted by the learned Rent Controller in his judgment, does not explain the contradiction. In this quoted portion of his cross‑examination the respondent had only stated that he did not remember exactly as to how many times he or his son had gone to pay the rent to the appellant. This was a general statement but so far as the payment of rent for the disputed period (April to July 1986) is concerned, the respondent was not in doubt and was emphatic that he had paid the rent for this period and this assertion of the respondent is in clear contradiction with the assertion made by his son in his cross‑examination. Learned Rent Controller has clearly gone out of her way in making an attempt to show that the contradiction stood sufficiently explained. Learned counsel for the appellant also brought to my notice the judgment in case of Fa7al Ahmad Khan Saleemi v. Mrs. Anwar Iqbal (1987 C L C 1638) which holds that when there are no rent receipts, the tenant must prove the B actual dates on which the rent had been allegedly paid by the tenant. Learned counsel for the respondent could not show me any judgment to the contrary. In the present case, the respondent has made a vague claim that the rent for the disputed period‑ had been paid and no dates of such payment have been mentioned either in the written‑statement or in the affidavits‑in‑evidence of the respondent and his son. Such vague assertion in such circumstances carries us no where. My attention was also drawn to para.3 of the written‑statement in which the respondent alleged that the appellant, after the expiry of the previous rent agreement of 31st March, 1985 had demanded from him to vacate the premises immediately or to execute a fresh tenancy agreement enhancing the rent from Rs.2,600 to Rs.2,850 and the respondent was forced to execute fresh rent agreement on 31st March, 1986 under duress, threat, mischief, undue influence and pressure exerted by the appellant upon him. This indicates that the relations between the parties were strained right from the first day of the commencement of the fresh tenancy under the second rent agreement of 31st March 1986. This is the claim of the respondent himself and if it is correct, it follows that the respondent should have been, and was expected to be, more careful in the payment of rent than a tenant under ordinary circumstances would have been and, therefore, he should not have paid rent without obtaining receipt or without obtaining any other documentary proof of the payment of the same and if the receipt had not been given on the first occasion, rent should not have been paid C for the second time if the receipt was again refused and should have been deposited in Court. The averment of the respondent and his son, apart from the fact that they are contradictory on the question as to who paid rent for the disputed period, cant lot be taken on their face value in the absence of any evidence whatsoever, either oral or documentary. Learned counsel for the respondent relied upon 1988 C L C 1703 (Adam Ahmad Thaqia v. Muhammad Hanif); in this judgment there were vague allegations in respect of the default and there had been several tenancy agreements and ejectment application had been filed after the receipt of arrears of rent and there was no rent due on the date when the ejectment application had been filed. Under such circumstances ejectment application had been rejected. The facts of the present case are quite different as the allegation in respect of the default is precise and not vague and ejectment application had not been filed on a date when no rent was due. This judgment is, therefore, not relevant in the present context.

3. For the reasons given above, I am of the considered view that the appellant had sufficiently discharged the onus of proving that the respondent had committed default for the disputed period whereas the respondent had failed to rebut the allegation and could not bring on record any reliable evidence in support of his claim that he had paid rent for the disputed period. I would, therefore, accept this appeal, set aside the impugned judgment and direct the respondent to hand over possession of the disputed premises to the appellant within two months. The appellant shall also have his costs. Z.S./A‑693/K Appeal accepted,