1986 PLP 902 (MLD)

(1) whether the opponent has committed wilful default in the payment as alleged in the application? (2) What should the order be?" The respondent examined his attorney Akhtar Hussain and the appellant examined himself and besides himself he examined two witnesses, namely, Abdul Khaliq and Muhammad Yousuf as D.W.2 ancj D.W.3. The Rent Controller after recording the evidence of the parties and after hearing argument of the learned counsel of the parties allowed the ejectment application by his order dated 21‑7‑1979 and directed the appellant to vacate and hand over the vacant possession of the disputed premises to the landlord /respondent within two months from the date of the order. The appellant being aggrieved preferred Rent Appeal being Rent Appeal No. 84 of 1979 before the District Judge, Karachi, which was ultimately transferred to the Court of Vth Additional District Judge, Karachi. The learned Additional District Judge after hearing the arguments of the counsel of the parties dismissed the appeal by his judgment dated 21‑5‑1980 and directed the appellant to vacate and hand over vacant possession of the premises within one month from the date of the judgment. The appellant being aggrieved against the judgment dated 21‑5‑1980 has preferred his Second Appeal on th); grounds mentioned in the Memo of Appeal. Mr. Muhammad Yasin Azad, learned Advocate for the appellant has contended, that the documents Exhs. 6 and 7 cannot be excluded from consideration on the technical grounds. He has also contended that the evidence has been misread and not properly appreciated on misconception of law. On the other hand Mr. Sheikh Muhammad, Usman had contended that the documents were not excluded from consideration on technical grounds. He also contended that the evidence has not been misread and was properly appreciated by the Courts below. As regards contention that two receipts for Rs.1,200 and Rs.715 which were duly exhibited as Exhs. 6 and 7 without any objection by the respondent. The learned Rent Controller held that the receipts Exhs. 6 and 7 had not been shown to the attorney of the respondent and had not put any question to attorney of the respondent. The appellant even did not examine the authors of these two receipts. The two witnesses Abdul Khaliq and Muhammad Yousaf did not support the appellant but on the contrary stated that the attorneys Waheedullah and Nastr Khan or other (rent collectors) used to collect rent and after two or three days used to bring receipts' from the respondent and these Rent Collectors never used to issue receipts themselves. The learned Additional District Judge has observed that the learned Rent, controller has rightly pointed out that while cross‑examining the respondent's attorney no such suggestion was put about the payment of these amounts under the aforesaid documents. It is an admitted position that in the year 1971 as well as in the year 1973 the respondent had filed Distress Warrant cases in the Court of Small Causes at Karachi, recovery of arrears of rent, if such was the position then how did the appellant find it sufficient to make payment of rent to agents of the respondent under such Kutcha receipts which are prima facie not appealing to mind and do not create a sense of responsibility in view of the relations between the parties. The learned Additional District Judge agreed with the learned Rent Controller that payments under receipts Exhs. 6 and 7 are not proved satisfactorily. The burden lay upon the appellant to prove that he paid the rent to the respondent/ landlord which burden he failed to discharge in this case. This contention was available to the appellant if the receipts Exhs. 6 and 7 were excluded from consideration on technical grounds but since the learned Additional District Judge held that the receipts Exhs. 6 and 7 were admitted without any objection in evidence and this contention fails. The Supreme Court of Pakistan in Allah Din v. Habib P L D 1982 S C 465 held as follows:‑ "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)(1) of the Sind Urban Rent Restriction Ordinance, 1959 but it must be appreciated that non‑payment of rent is $ negative fact, therefore, if the landlord appears in Court and states 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 onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27(b), Specific Relief Act 1977, in the case of Khairun Nisa v. Muhammad Ishaq. Applying the principal to the fact of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant has successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in Second Appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises." As regards second contention that the Courts below misread the 'evidence. Both the Courts of Rent Controller as well as the Additional District Judge, acting as First Appellate authority have found that the appellant has committed default for the period 1‑7‑1974 to 31‑12‑1974. The learned counsel for the appellant has contended that this finding of the Rent ‑Controller is erroneous as the evidence on record is not sufficient to sustain this conclusion. It is submitted by the learned counsel for .the appellant in his evidence before the Controller had stated that he paid Rs. 1,200 on 27‑6‑1974 to Waheedullah and Rs. 715 on 29‑7-1974 to Nasir Khan vide receipts Exhs. 6 and

7. The attorney of respondent on the contrary in his evidence before the Rent Controller categorically stated that the appellant had committed default in payments of rent for the months of July to December, 1974. The appellant examined two witnesses who did 'not support him in this regard but on the contrary stated Rent Collectors after, collecting rent never issued receipt themselves but used to bring receipts after two or three days. The appellant did not ask any question in cross‑examination regarding issuance of these receipts by Wahidullah and Nazir Khan. In this view of evidence the inference of default of rent for the period of Jul 1974 to December 1974 can neither be termed as perverse nor could it be described as based on misreading of evidence. The interference b A this Court in second appeal on question of concurrent facts is confined to those cases alone where the finding is based on misreading of evidence or the finding is arrived at in ignorance of material piece of evidence ' on record or the appraisal of evidence by the Courts below was perverse. The learned counsel for the appellant was unable to point out any such defect in the findings of Courts below. The Courts below having found that the appellant had not paid rent in the year 1971 and the yea 1973 and the respondent recovered the rent by filing D.W. cases the Court .of Small Causes, Karachi. The admitted position in the case is that no rent was paid by the appellant from 1‑7‑1974 till the 31s December, 1974. In the circumstances, the Courts below were justified in holding that the appellant had committed default in payment of rent. For the reasons stated above, it is concluded that the default was committed and order of ejectment was proper as such there is n ground for interference with the impugned judgment and the‑appeal i dismissed with no order as to costs. Appellant is directed to hand over vacant possession of the premises to the respondent within four month from today and pay rent regularly for the period and if he commit default he would be liable to ejectment forthwith before the expiry o four months' time without any notice. M.Y.H. Appeal dismissed.