P L D 1986 Karachi 184 (PLP)

(3) What should the order be ?"

3. Before the Controller the respondent filed her own affidavit (Exh. 3) and the affidavit of her brother Allay Hassan (Exh. 4) in support of the plea of default and the affidavits of two other witnesses who are her neighbourers namely Zaheer Baig (Exh. 5) and Abdul Rashid (Exh. 6) in support of the plea of nuisance. They were all cross‑examined by the counsel for the appellant.

4. On the other hand, the appellant filed his own affidavit, and the affidavit of Maqsood Anwar in rebuttal to the affidavit of Zaheer Baig. All the aforesaid witnesses were cross‑examined. After considering the evidence the Controller found issue No. 1 in favour of the respondent and issue No 2 against her, and ordered eviction of the appellant giving him three months time to vacate the premises. The appellant has, there fore, come up in this appeal.

5. I have heard Mr. Abdul Naseer Khan learned counsel for the appellant and Mr. A. K. M. Idris learned counsel for the respondent. The learned counsel for the parties have also taken me though the affidavits in evidence filed by the aforesaid witnesses and their cross- examination. I have also perused the notice, dated 12‑2‑1981, (Exh. A13) and the money order coupons. The respondent in the application had alleged that the rent of the premises is Rs. 450 per month and that the appellant is also liable to pay electricity and gas charges. The case of the respondent before the Controller was that the respondent did not pay any rent, electricity and gas charges from August, 1979, in spite of repeated demands. The appellant in his written statement stated that the rent was enhanced from Rs. 450 per month to Rs. 500 per month from 14‑1‑1980, and that he paid the monthly rent regularly but the respondent never issued any receipt for the same. His further stand was that he had paid the electricity and gas charges upto January, 1981, and that on refusal of the landlord to accept the rent sent to her by money orders he started depositing the same in the Court in Miscellaneous Application No. 284 of 1981, which was dated 12‑1‑1981. It may be mentioned that the Rent Case was filed against the appellant on 21‑1‑1981. Before the Controller it was asserted that the appellant had paid the rent from August, 1979, to May, 1980 and electricity, gas charges from August, 1979 till December, 1981, and that the respondent did not issue any receipt for the same.

6. However, the Controller refused to believe the appellant that he had paid the rent upto June, 1980 and electricity and gas charges upto December, 1981 for the reason that, if the respondent had refused to receive the rent from June. 1980, how could she receive the electricity and the gas charges from June, 1980 to December, 1981. He found that the appellant had failed to produce any documentary or oral evidence proving that he had paid the rent, electricity and gas charges for the disputed period to the respondent and that the respondent did not issue any receipt for rent or the electricity and the gas charges. He relied on the admission of the appellant made in his cross‑examination that he was unable to produce any rent receipt or other evidence to prove payment of rent from August, 1979, till May, 1980, and electricity and gas charges from August. 1979, till December, 1981. He held that in absence of any oral or docu mentary evidence mere word of the appellant was not sufficient to prove the payment.. He, therefore, ordered his eviction.

7. Mr. Abdul Naseer Khan learned counsel for the appellant sub mitted that the finding of the Controller that the appellant had failed to pay the rent and electricity and gas charges for the aforesaid period is incorrect as there being word against word and burden of proof being on the respondent, he should have held that respondent had failed to prove non‑payment of rent and electricity and gas charges. He further sub mitted that the respondent bad not issued any rent receipt and it was so admitted by her brother in his cross‑examination. In support of his submission he relied on Mst. Fayyazi Begum etc. v. Zakiuddin (N L R 1984 Civil 96) Mst. Anwari Begum v. Noor Hassan (1984 C L C 265) Muhammad Shaft v. Iqbal Ahmed and another (P L D 1965 (W. P.) Lah. 23).

8. On the other hand Mr. A. K. M. Idris learned counsel for the respondent submitted that the appellant used to bring prepared receipt and the respondent used to sign the same. He further submitted that the respondent had proved non‑payment of rent. He relied on Muhammad Ramzan v. Bashir Ahmad (P L D 1967 (W. P.) Lah. 696) Allah Din v. Habib. (PLD 1982SC465)

9. Now taking up the submission of Mr. Abdul Naseer Khan that the respondent was not issuing any rent receipts it may be stated that the respondent in her cross‑examination to the learned counsel for the appellant stated that the appellant used to bring rent receipt and she used to sign it. The learned counsel for the appellant, however, pointed out that the respondent in her cross‑examination admitted that she was not in possession of the counterfoils which bear the signature of the appellant. In the aforesaid circumstances her statement that she was not in posses sion of the counter‑foils which bore signature of the appellant was correct. In view of the aforesaid evidence it cannot be said that the respondent was not issuing any rent receipt and the question of respondent possessing any counter‑foils which bore her signature does not arise. It was, however, pointed out by Mr. Abdul Naseer Khan that the respondent's brother in his cross‑examination has not said that the appellant used to bring rent receipts to his sister and his sister used to sign it. What he has said is that she used to issue receipt of rent in his presence and that he could not say as to when the last receipt was issued to the appellant by the respon dent. This statement in my opinion is not in any manner inconsistent with her statement that the appellant used to bring receipt and she used to sign it. The evidence of her brother is to be read in that context. Therefore. in my view, the burden of proving that the appellant had not. paid the rent was sufficiently discharged by the respondent and then burden had shifted on him to disprove by producing the receipts or any other evidence. The appellant in his evidence admitted that he had no evidence,, documentary or oral, available with him. It was not hic case that he had paid the rent for which the claim was made by the respondent in the presence of any witness. It is, therefore, clear that he failed to discharge the burden of disproving non‑payment of rent or proving payment of the rent.

10. Now before taking up the cases cited by the learned counsel for the parties. I may refer to the following dictum of Hamoodur Rahman, C. J., in Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (both represented by heirs) (P L D 1971 S C 334) :‑ "The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to the definite conclusion‑Vide Durga Prasad and another v. Ghanshiam Das and others P L D 1948 P C

171. In such an event the rule is that the party on whom the onus lay must fail."

11. In view of the evidence brought on record I am of the view that the Controller was right in not believing the evidence of the appellant that he had paid the rent for there was no reasons for the respondent not to accept electricity and gas charges but to accept the rent. The claim by the appellant that he had paid the electricity charges upto December, 1981, Was made for the reason that from lone, 1980, he had started depositing rent with the Controller in Miscellaneous application filed by him on 12‑1‑1981, but he had not deposited the electricity and gas charges with the rent nor had he included the said charges in the money orders for rent which he bad started sending from 14th June, 1980. "' he appellant is a recruiting agent as alleged by the respondent or an Estate Broker as stated by Mr. Abdul Naseer Khan at the bar, and in a case. he is an English knowing educated person as would appear from his affidavit and, therefore, it is unbelieveable that he would make payment of rent without receipts Further, under section 10 (2) of the Ordinance the landlord is under obligation to acknowledge the receipt of payment of rent in writing and it was the duty of the appellant to obtain receipt for the same to avoid any future dispute as regards payment thereof. Under these circumstances finding of the learned Controller is unexceptionable.

12. Now, remains to be considered are the cases: cited by the learned counsel for the appellant. In the case of Mst Fayyazi Begum Etc. v. Zakiuddin (Supra) it was held that once a landlord admits that he had not been issuing receipt to the tenant and he claims that the tenant has not paid the rent and the same is denying by the tenant then the burden is on the landlord to establish that such receipts were issued as and when the occasion arose. If :he landlord is unable to produce documentary evi dence of such facts then mere statement of the landlord to the effect that the tenant has defaulted in payment of rent should be corroborated by some proper and cogent evidence because in such circumstances the sole statement of landlord may not be sufficient to prove the default. In the present case the landlord has stated that she had been signing and giving the rent receipts which used to be brought by the appellant and that distinguishes the cited case. It may be mentioned that the cited case also the. learned Judge held that since the appellant had not been regularly issuing receipts and he had not examined any witnesses, he had failed to discharge the burden of proof. But in the present case burden of proof, in my opinion, was folly discharged. Moreover, the case is distinguish able for the reason that in the case on hand the appellant had started sending money orders for rent and thereafter depositing rent in Miscellaneous proceedings from the month of January, 1981. He did not however, send any money, order on account of electricity and gas charges. Thus, in any case there was default in payment of electricity charges which also made the appellant liable to be evicted from the premises in vie" of the definition of 'rent' as given in section 2 (l) of the Ordinance.

13. In the case of Mst. Anwari Begum v. Noor Hassan (Supra) no rent receipts were issued by the landlady and her entire case rested on her sole oral evidence while the oral testimony regarding payment of rent to the contrary was supported by documentary evidence to shape of money orders and cheques. In these circumstances it was held that default in payment of rent had not been proved. This case again distinguishable on facts.

14. Taking up the last cited case in Muhammad Shafi (Supra) it was held by Sajjad Ahmed, J., that non‑production of receipts by the tenant has been given an exaggerated importance by the learned lower appellate Court. It is not unusual for old tenants, like those placed in the position _ of the appellant, not to insist on the execution of receipts, thus avoiding to express openly a lack of faith in the honesty of purpose of the landlord. After reviewing the evidence it was observed 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 whether rent was in fact paid for these three months, as alleged by the appellant, or remained to arrears, .as alleged by the respondent. In this situation, since the onus was on the respondent to prove non‑payment of rent, the doubt had to be resolved in favour of the appellant. In the present case in view of the circumstance there was no question of any doubt and the Controller reached the correct conclusion. Therefore, this case is also distinguishable on facts.

15. Taking up the cases cited by Mr. A. K. M. Idris it maybe mentioned that in the case of Muhammad Ram:an (Supra) the statement of the landlord was that the tenant had not paid him rent since October, 1957. The tenant, however, in the cross‑examination admitted that he was submitting accounts to the Income‑tax Department since 1951, and that there was no entry in his account‑books regarding the payment of rent, In these circumstances it was held that mere assertion that the rent had been paid would not carry the day.

16. Taking up,, the Supreme Court's case of Allah Din (Supra) it may he stated that in this case it was observed by the learned Judges of the Supreme Court that in civil proceedings an issue is to be decided by preponderance of evidence and in case where there is a word against a word, it is the party on whom lay the onus of proof must fail. It was further observed 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) (i) of the Bind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non‑payment of rent is a 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, and in support of this proposition reliance was placed upon Khairun‑Nisa v Muhammad Ishaq (PLD1972SC25).

17. I am, therefore, of the view that the respondent bad discharged I initial burden and the appellant failed to prove payment of rent. Accordingly, the order of the Controller is upheld. Consequently, the appeal is dismissed with costs.

18. I may record that A. K. M. Idris questioned the finding of the Controller on the issue of nuisance but since I have confirmed the finding on issue of default, therefore, I do not consider it necessary to discuss the issue of nuisance.

19. Mr. Abdul Naseer Khan requests two months time to vacate the premises. Mr. Idris is not agreeable for two months time. But I think the request is reasonable and I grant the appellant two months time to vacate the premises and hand over its possession to the respondent provided he deposits the rent according to the order of the Controller. A. A. Appeal dismissed.