1991 PLP 2039 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the High Court dated 12‑8‑1987.

2. The facts, in brief, are that the appellant brought an application for eviction of the respondent from the premises in question on the ground of default from January 1984. The eviction application was filed on 10‑12‑1984. The application was contested and it was averred that the respondent/tenant had already paid the rent in advance uptil June 1985 but no receipt had been issued to the respondent. An issue of default was framed by the Rent Controller. The application was dismissed by him. The High Court also dismissed the appeal filed by the appellant.

3. We have heard the learned counsel for the parties. It was contended by the learned counsel for the appellant that it was the case of the respondent that the rent receipts had been issued regularly by the landlord. But in this case, the respondent has not produced any rent receipt to show that the rent was paid by him. He further submitted that the appellant in his deposition has stated that the respondent failed to pay the rent, therefore, the burden shifted to the respondent. The appellant in his statement has deposed that the respondent has not paid rent from January 1984 in spite of repeated requests. A.W.1 the rent collector has corroborated the statement of the appellant. On the other hand, R.W.1 has stated that Rs.360 were paid in October/November, 1984 to the landlord, while R.W.2 stated that the rent for the months of January to June, 1984 was paid in 1984. The respondent in his statement stated that in October/November, 1984, he had paid six months' rent in advance to the appellant but he did not issue any receipt. The respondent has admitted that the landlord used to issue receipts after the rent was paid to him. Now, in this matter, the plea of the respondent was that he had paid the rent in advance to the appellant and nothing was due against him. The Rent Controller and the High Court have proceeded on the premises that there was a long‑standing practice to accept the rent in lump sum. No such plea was raised by the respondent either in the written statement or in the evidence. The Rent Controller has observed that "there was an established practice of the landlord to receive the rent collectively. The rent was never received since 1965 in time". After such observation, it was held that "it appears to me rather incredible that the tenant who was admittedly paying rent regularly since 1965, without any default, suddenly allowed himself to go into arrears for eleven months." He further held that "I feel that on the evidence on record, and the entire circumstances, of this case it is not possible to give a conclusive finding safely, one way or the other. I exercise my discretion and resolve the doubt in favour of respondent. As such the issue is decided in negative." The judgment is deficient as the Rent Controller has given the benefit of doubt to the respondent. He has not given a definite finding whether the rent has been paid or tendered by the respondent to the landlord. He overlooked the evidence produced by the appellant and decided the case clearly on presumption. He has exercised discretion in spite of the fact that there was sufficient evidence produced by the appellant to prove the default of the respondent. The High Court has also erred in confirming the judgment of the Rent Controller that the tenant has affirmatively proved that there was an established practice between the parties that the rent was collectively received. The default therefore, if for the sake of argument, even committed, was not wilful. The landlord has positively said that the respondent has not paid the rent with effect from January 1984. The respondent has admitted that the landlord used to issue the rent receipts. Many rent receipts have been exhibited, therefore, it was for the respondent to establish that he had paid the rent. Even, according to the statement of R.W. Muhammad Amin, rent upto June 1984 was paid. He has stated that in 1984 this rent was paid but he could not give the date or month when this rent was paid. R.W.2 has stated that rent was paid to an old man who was a Maulana. This general statement does not absolve the respondent of default. The respondent has absolutely failed to prove that the rent was paid to the appellant. The admitted position is that it was a monthly tenancy. The respondent on 2‑4‑1983 paid the rent for the months of May 1983 to December, 1983. Another receipt Exh.R./2 shows 'that the rent for the months of January 1982 to April 1982 was paid on 10‑5‑1982. Exh.R/7 is receipt dated 11‑5‑1972 for the months of July, 1971 to April, 197'2 (rent for the past ten months was paid).

4. Learned counsel for the respondent referred to Abdul Aziz v. Abdul Ghani 1986 S C M R 1857. Apart from the fact that the case is distinguishable it was not the case of the respondent that there was a practice to tender the rent in lump sum.

5. In Tar Muhammad Janoo v. Taher Ali 1981 S C M R 93, it has been held that "the practice of irregular payment cannot‑absolve tenant of his default".

6. In Abdul Rashid v. Saleh Muhammad 1980 S C M R 506, it has been held that "parties cannot contract themselves out of provisions of law". The respondent cannot be permitted to plead a practice which is contrary to the Urban Rent Restriction Ordinance. In the result, we allow this appeal, set aside the orders of the two Courts and pass the order of eviction against the respondent. The respondent shall hand over the vacant possession of the premises in question within two months. AA./M‑1526/S Appeal allowed.