1994 PLP 697 (CLC)

2. The facts giving rise to this appeal are that the respondents, who are the applicants, had filed an application before the learned Rent Controller, Karachi South stating therein that appellant is their tenant on 2nd Floor of House No.SA.80, Block 8, Karachi Administration Housing Society, Karachi. They have stated that appellant failed to pay or tender rent to them from January, 1988 to February, 1989 in spite of their demands and notice dated 3‑4‑1988 sent to him. They claimed arrears of rent due in the sum of Rs.21,

000. They also stated that they required the said premises in good faith for the bona fide use and occupation of respondent No.2, Hafiz Abdul Waheed who lives in Sukkur and is suffering from heart and urinal diseases and has been advised to stay at Karachi for better medical facilities than at Sukkur and under constant care and watch of applicant No.l respondent No.l who is a Doctor. The appellant filed his written statement denying the case of the respondents. It was stated that the said premises was taken on rent on 1‑1‑1985 and at that time he paid a sum of Rs.18,000 as deposit and security for arrears of rent. It was also stated that he had already paid rent till 31st May, 1989 but no receipt was issued to him and thereafter respondent No.l declined to receive the rent which was tendered to him personally by him and, therefore, he sent rent for the months of June and July, 1989 through money order but respondent No.l refused to receive the said rent. The rent was, therefore, deposited in the Court. It was also stated that respondent No.l had brought typed agreement dated 26‑11‑1985 for a further period of eleven (11) months and he promised to supply the copy of the agreement but he never supplied the same to the appellant. The said agreement was for a further period of eleven months commencing from 1‑12‑1985. It was averred that, thereafter, the respondent demanded Rs.2,50,000 as a `pugree' and on such payment he was agreed to reduce rent from Rs.1,500 to Rs.1,000 per month. In case of non payment of Pugri amount, he demanded increase of rent from Rs.1,500 to Rs.2,400 per month. The appellant did not agree to the suggestion.

3. Appellant in his statement also denied that the said premises is required for the bona fide use of respondent No.2 stating that respondent No.2 was not suffering from heart and urinal diseases and that he was also not advised to reside at Karachi. It was also denied that respondent No.2 will be requiring care and watch by respondent No.l or any other doctor. According to the appellant, respondent No.2 was a permanent resident of Sukkur having flourishing business in Sukkur and specious house to live with his family.

4. On pleadings of the parties, learned Rent Controller framed the following issues for determination:‑‑ (1) Whether opponent is defaulter in payment of rent? (2) Whether notice dated 3‑4‑1988 was served on opponent? (3) Whether opponent has paid Rs.18,000 as security deposit on the inception of tenancy? (4) Whether applicant No.2 requires case premises for his personal use and occupation? (5) What should the order be?

5. Learned Rent Controller found issues Nos.l and 2 in affirmative while he decided issues Nos.3 and 4 in negative.

6. There is no dispute between the parties that appellant is a tenant of the respondents in the above premises. The case of the appellant is that he has not committed default in payment of rent from January, 1988 to February, 1989 as mentioned in the application of the respondents. It was the duty of the respondents to prove that they have not received the rent from the appellant from January, 1988 to February, 1989. Respondent Dr.Khalil Ahmed has filed his affidavit‑in‑evidence to prove that he has not received the rent from January, 1988 to February, 1989. By filing this affidavit, the respondents have discharged their burden of proving that they have not received the rent from the appellant from January 1988 to February, 1989. Any how, in order to prove non‑payment of rent by the appellant, the respondents have also relied upon the photo copies of the counterfoils of the receipts issued to the appellant which are on the record as B‑1 to B‑32 which show the payment of rent up to December, 198.'. These receipts also show that respondents always used to issue receipt on receiving rent. The contention of the learned counsel for the appellant is that no reliance can be placed on these counter foils because they are in the same sequence. This contention is not acceptable because respondent Dr. Khalil Ahmed has explained that he has several tenants in the same building and that he maintains receipt book for every tenant separately. Learned counsel for the respondents has submitted that receipt Nos. B‑1 and B‑2 show the signatures of the appellant which fact proves that the said receipts had been issued to him. Learned counsel appearing for the appellant has contended that appellant Shakeel Ahmed has not been cross‑examined on this point and, as such, it cannot be believed that these counterfoils of the receipts bear the signature of the appellant. In support of his contention, he placed reliance on PLD 1967 Karachi 233 wherein it was held that, "if there was no cross‑examination of the fact deposed in examination‑in‑chief, presumption would be that evidence had been accepted by the party against whom it was given". Keeping in view the principle of appreciation of evidence, I would give importance to the fact that attention of the appellant had not been drawn in cross‑examination towards the signatures on counterfoils of Receipts Nos. B‑1 and B‑2 purporting to be his signatures. Learned counsel for the respondents submitted that under Article 84 of `Qanun‑e‑Shahadat', these signatures can be compared with the admitted 'signatures of the appellant. I have compared the signatures on B‑1 and B‑2 with the signatures of the appellant on written statement and Vakalatnama, and in my ,view, the signatures on the counter‑foils are different. However, photo copy of the notice dated 3‑4‑88 and the receipt ‑of the registration of this notice and Registered A.D. Receipts prove that notice dated 3‑4‑88 had been sent to the appellant on his address and, as such, a presumption can be raised that this registered notice had been served on him. From the affidavit‑in‑evidence of Dr. Khalil Ahmed, respondent No.1 and the documents produced by him, it can safely be gathered that he has discharged his burden of proving that appellant is defaulter in payment of rent of the said premises from January 1988 to February, 1989. On the other hand, the appellant has filed his affidavit only to prove that he has not committed default in payment of rent. The affidavits‑in‑evidence of Rasheed Ahmed and Muhammad Rafi do not support the appellant that he had regularly been paying rent of the disputed premises to the respondents. The appellant also failed to establish his allegation that respondents had demanded Rs.2,50,000 as `pugri/occupancy value and agreed that on such payment he will reduce rent from Rs.1,500 to 1,000 per month and in case of non‑payment of Pugri amount, he demanded increase of rent from Rs.1,500 to Rs.2,

400. It is, therefore, quite clear that appellant has committed default in payment of rent in respect of the above premises for the aforesaid period.

7. The contention of the learned counsel for the appellant is that appellant had deposited Rs.18,000, at the time of inception of tenancy, with the respondents as security for the payment of rent of the premises in question. Respondents have denied this fact. It was for the appellant to have proved that he had deposited an amount of Rs.18,000 at the time of inception of tenancy with the respondents but he has failed to prove this fact. On this point he has filed his affidavit and' affidavit of his brother only but there is no independent evidence to support them. There is also no receipt of deposit of A this amount with the respondents. Further, even if it is believed that Rs.18,000 had been deposited with the respondents as security towards payment of rent, this cannot be adjusted towards the rent due. In this connection I refer PLD 1980 Karachi 92.

8. In view of what I have mentioned above, I am of the view that learned Rent Controller has rightly concluded that appellant has committed default in payment of rent from January, 1988 to February, 1989.

9. Learned Rent Controller decided issue No.4 against the respondents. Learned counsel for the respondents argued that the premises described above is required for personal use and occupation of respondent No.2. Learned counsel for the appellant contended that since no appeal or cross‑objections have been filed by the respondents on this point, the same cannot be agitated at this stage. The contention of the appellant's counsel is quite correct. The Sindh Rented Premises Ordinance, 1979 is a special law which has given a right of appeal to any party to the proceedings aggrieved by an order of the Court g within a period of thirty days of such order. Since no appeal, as is required to have been filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has been filed by the respondents, they cannot be allowed to agitate the above point in this appeal. For the foregoing reasons, I, affirming the order of the learned Rent Controller, dismiss this appeal. H.B.T./S‑1026/K Appeal dismissed.