2014 PLP 618 (YLR)

AFTAB AHMED GORAR, J.

Through this Constitutional Petition the petitioner has impugned Judgment dated 12-3-2010 passed by 1st Additional District Jude, Karachi Central whereby he allowed F.R.A. No.96 of 2007 filed by the respondent/landlady against Order dated 15-3-2007 passed by Vth Sr. Civil Judge/Rent Controller. Karachi Central whereby he dismissed her ejectment application. Brief facts giving rise to the filing of instant petition are that respondent/ landlord filed Rent Case No.59 of 2004 for eviction of the petitioner/tenant on the grounds of personal bona fide need and default in payment of rent stating therein that she is the lawful owner of shop bearing No.2 constructed on Plot No.3-E/III. Block No.3. Nazimabad, Karachi having acquired the same vide a registered Declaration of Gill on 18-10-2004 and the petitioner is the tenant in respect of demised shop at monthly rent of Rs.220 excluding electricity and other charges. Previously the shop was in the name of her son namely Zafar Ali Zaidi but as he intended to proceed out of Karachi in connection with his new job, as such he executed a gift deed in favour of the respondent but subsequently he could not join his new job, hence he is jobless. The respondent who is an aged lady of about 70 years, herself informed the petitioner-tenant about the change of ownership, however, on coming to know such fact, the petitioner/tenant tore the property documents and forcibly pushed her away. According to her, she requires the shop in question for herself and for personal bona fide need of her son who is jobless. She further stated that the petitioner, after change of ownership, did not pay a single penny towards rent, nor paid betterment tax. She wants to establish her own business with the help of her son, as such she needs the shop in question. On 1-11-2004 she served a legal notice upon the petitioner regarding change of ownership which was not replied. The petitioner contested the rent application by filing written statement wherein he denied all the allegations levelled against him and took a plea that he had obtained the demised shop on 'purgree' basis and the respondent has filed the ejectment application malafidely although she does not require the shop for personal need. He further asserted that he has not committed any default in payment of rent. According to him, when the previous landlord refused to accept the rent, he sent the same through money order which was also refused as such he deposited the same in court through MRC No.803/1991. He further asserted that he had come to know about the gift deed when ejectment application was filed, however before filing of rent case he had received a notice about the change of ownership and he had requested the respondent to send him a copy of gift-deed which was not provided to him. He further stated that previously respondent's son Zafar Ali Zaidi had filed two ejectment applications on the ground of default which were dismissed. According to him, he offered rent to previous landlord Zafar Ali Zaidi who refused to accept the same, as such he tendered the same through money order which was also refused, therefore, he deposited the rent in the court. He prayed for dismissal of the rent application. After recording evidence of the parties learned Rent Controller formulated the points for determination and after hearing the counsel for the parties, he dismissed the rent application vide order dated 15-3-2007. The said order was challenged in appeal which was allowed vide Judgment dated 12-3-2010, hence this petition. I have heard learned counsel for the petitioner and perused the material available on the record. Learned counsel for the petitioner contended that the learned appellate court erred in law and on facts while reversing the finding of the learned Rent Controller on the point of default in payment of rent. He further contended that the order passed by learned Rent Controller is in accordance with law and norms of justice and he has assigned cogent and sound reasons for the findings arrived at by him. He further contended that the appellate court did not consider the submission made before it that respondent No.1 and her son have been changing ownership again and again putting the petitioner in confusion. He further contended that the appellate court also did not take into consideration that the respondent did not provide him copy of gift/transfer deed on the basis of which she claimed ownership of the shop in question despite demand made by the petitioner. He prayed for the setting aside the judgment of the appellate court and restoration of the order passed by the Rent Controller. He has relied upon the case reported in 1999 SCMR 2924. Conversely, learned counsel for respondent No.1 supported the judgment passed by the appellate court contended that the appellate court has rightly reversed the finding of the learned Rent Controller on the point of default in payment of rent. He further contended that the Rent Controller while passing the order, has ignored the dictum laid down by the superior courts. He further contended that the learned Rent Controller did not take into consideration the admissions made by the petitioner/ tenant in his cross-examination which go in favour of the respondent. He further contended that although the petitioner admitted that he has not produced any material showing that he has deposited the rent in court in the name of new owner viz. respondent No.1. despite that the Rent Controller dismissed the rent application. According to him the Rent Controller has ignored the settled principle of law that once a landlord takes a plea that the tenant has defaulted in payment of rent, the burden shifts on the shoulder of the tenant to prove that he has been regularly paying the rent. According to him, on the point of personal bona fide need both the courts below have given erroneous findings and have not appreciated properly the evidence adduced by the respondent. He prayed for maintaining the judgment passed by the appellate court. He relied upon the decisions reported in 2013 CLC 119, 2011 SCMR 589, 2001 SCMR 678, 1995 SCMR 204, 1997 SCMR 945,1992 SCMR 871 and 1988 SCMR

775. So far as the finding of the two courts below on the point of personal bona fide need which goes against the respondent/landlord is concerned the respondent has not attacked the same by filing any petition, nor the petitioner in the instant petition has assailed the same, as such the same cannot be disturbed. As regards the point of default in payment of rent, it appears that the learned Rent Controller has based his finding, on this point mainly on the basis of admissions of respondent No.1 and her son Zafar Ali Zaidi in their cross-examination that the petitioner/tenant is depositing the rent in court. It will be advantageous to reproduce hereunder the relevant observations from the order of the learned Rent Controller:- "In this rent case applicant took plea that opponent is defaulter in payment of the rent but applicant herself as well as her son namely Zafar Ali Zaidi admitted in cross-examination that opponent depositing the rent in court it means that opponent is not defaulter." From the bare perusal of above observations it seems that the finding arrived at by the learned Rent Controller lacks reasons. The Rent Controller has miserably failed to appreciate that the petitioner has not specifically stated as to in whose favour the tenant is depositing the rent, what is the rate of rent and for which period the petitioner/tenant has deposited the rent. The learned Rent Controller also failed to take into consideration the following admissions made by the petitioner:-- "It is correct that I have not produced any challan receipt to prove that I am depositing the rent in the name of Jamila Begum before any Court." "It is correct that I had not produced any document in respect of any MRC to prove that I paid rent in the name of previous landlord." "It is correct that the documents produced by me or annexed with my affidavit in evidence are not related with applicant Mst.Jamila Begum." "It is correct that in my W/S and in my affidavit in evidence I have not contended that I am paying the electricity and other charges to concerned departments. It is correct that I had not attached any KESC or any other utility bills with my affidavit in evidence to prove that Para No.2 of rent application false." It may be noted that in para 2 of the rent application it was mentioned that the petitioner/tenant was not paying electricity and other charges. The respondent/landlady in her eviction application and affidavit in evidence has taken plea that the petitioner/ tenant has defaulted in payment of 5 months rent. Such allegation has been denied by the petitioner. According to him, on refusal of previous owner to accept the rent, he tendered the rent through money order which was also refused, therefore, he started depositing the rent in Miscellaneous Rent Case. However, on coming to know about the change of ownership, he offered the rent to the new owner and on her refusal he tendered the same through money order and on her refusal to accept the money order, he deposited the same in M.R.C. in her name. However, it appears that the petitioner has not produced any tangible material in support of his aforesaid assertion regarding payment of rent. He asserted that the rent was deposited in M.R.C. No.803 of 1991. It is apparent from the judgment of the appellate court that the record of the said M.R.C. including ledger was called by the appellate court and on scrutiny of the same it transpired that lastly the petitioner/tenant had deposited the rent on 28-12-2004 for six months in the name of previous owner namely Zafar Ali Zaidi, thereafter record is silent and there is nothing on the record that the petitioner had deposited any other rent either in the name of previous owner or new owner viz. respondent No.1. It is now well-settled that as soon as the landlord comes forward and makes statement on oath that he has not received the rent of a certain period, then burden shifts upon the tenant to prove that he has paid or tendered the rent. The petitioner has miserably failed to produce any documentary or oral evidence in support of his assertion that he has paid/tendered the rent through money order and on refusal of the respondent deposited the same in court. From the perusal of the order passed by the learned Rent Controller, it would be crystal clear that he has not bothered to verify as to whether, in fact, the rent was tendered or deposited. He seems to be much impressed by the admission of the respondent in her cross-examination to the effect. "It is in my knowledge that the opponent is depositing rent in court. However, he did not take pain to confirm as to whether the said deposit is in favour of previous owner or in the name of new owner viz. respondent No.1 or that for what period the rent has been deposited. It is a well settled principle of law that the tenant is under obligation to offer rent to landlord and only in case of his refusal to accept the same, tenant could have resorted to other modes of payment i.e. remittance through money order or depositing the same in court. It is for the tenant to prove that he had offered the rent to landlord and that the landlord had refused or avoided to accept the same. In the absence of any material from the side of the petitioner/tenant to such effect, no presumption except that he has defaulted in payment of rent, could be gathered. The case-law relied upon by the learned counsel for the petitioner i.e. 1999 SCMR 2924 is distinguishable and is not helpful to the petitioner. In the reported case it was observed that if the tenant requires the new owner to establish his claim of ownership to the satisfaction of the tenant so that rent may be paid to him or to supply further particulars as to the time from which the new owner had become entitled to receive rent and such demand would not be unjustified. It was further observed that bona fides of the tenant are clearly established by the fact that the rent was deposited by him in the Court when he failed to get satisfactory response from the person who claims to be the new owner to establish his ownership. However, in the instant case, as stated above, the petitioner/tenant miserably failed either to pay the rent to the new owner or on her refusal to tender the same through money order and on refusal to accept the money order, to deposit the same in the Court. The record of the M.R.C. called for by the appellate court clearly established that not a single penny was deposited by the petitioner/tenant towards rent in the name of new owner i.e. respondent No.1. In the circumstances, the appellate Court rightly reversed the finding in respect of the point of default in payment of rent holding that the petitioner/tenant made default in payment of rent. The upshot of above discussion is that there is no merit in the petition and the same is liable to be dismissed. Accordingly the petition along with pending applications is dismissed in limine. HBT/M-109/K Petition dismissed.