1983 PLP 3097 (CLC)

Shaikh Muhammad Usman for Appellant. Rashiduddin Ahmed Khan for Respondent. Date of hearing : 16th March, 1983. This is a First Rent Appeal filed by the appellant/tenant against the order dated 3rd January, 1980 passed by the learned Rent Controller Karachi allowing Rent Case No. 107/77 filed by the respondent/landlady and ordering ejectment of the appellant on the ground of default. Rent Application was filed on 10th January, 1977 on the ground of default in the payment of rent with effect from September, 1976, personal require ment for the son of respondent and for damaging the rented premises. Rent Application was, however, allowed only on the ground of default. Agreed rent was Rs. 160 per month and admittedly there is no agreement in writing. I have heard Mr. Shaikh Muhammad Usman, learned counsel far the appellant and Mr. Rashiduddin Ahmed. Khan, learned counsel*for the respondent.

2. On behalf of the respondent, she examined herself and respon dents also examined. The appellant appeared as his own witness. The case of the respondent/landlady was that the rent had not been paid since September, 1976. On the other hand, it was the case of the appel lant that the husband of the respondent had come to the appellant and asked for 4 months' rent in advance for Sui Gas and colour painting of the premises and on this request advance of 14 months, that is, for the period from September, 1976 to December, 1976 amounting to Rs. 640 was paid by the appellant but later on husband of the respondent came back and returned the advance amounting to Rs. 640 to the appellant and orally authorised the appellant to carry out colour painting at the cost of the respondent stating that such cost would be adjusted from the rent. The learned Rent Controller did not believe the oral evidence of the appellant about the payment of advance rent and refund of the same by the husband‑of‑the respondent to the appellant. In the instant case no documentary evidence was produced before the Rent Controller about the payment and the refund of the advance, about the authority given to the appellant to get the colour painting done and for adjustment of cost, of colour painting from the rent. As observed earlier only the appellant gave evidence in support of his version. The Rent Controller came to the conclusion that default had been committed with effect from September, 1976 and the ejectment application was allowed.

3. It is contended by the learned counsel for the appellant that in the circumstances of the case discretion should have been exercised by the Rent Controller in favour of the appellant. Learned counsel relied upon P L D 1982 Kar. 188, 1982 C L C 216, 1982 C L C 398, P L D 1965 Lab. 23 and P L D 1967 Lab. 966.

4. In my view, in the circumstances of the present case the burden of proving that advance rent of 4 months had been paid and the same was refunded and that the appellant was authorised to carry out colour painting and to adjust the cost against the rent, was on the appellant. With the evidence on record produced by the appellant, this burden was not discharged and I find no illegality committed by the Rent Controller to not accepting the version of the appellant. A default had been com mitted and the order of the Rent Controller not exercising discretion, in the circumstances of this case, in favour of the appellant, is neither perverse nor arbitrary. The authorities cited by the learned counsel do not support the contention raised on behalf of the appellant that in the facts of the present case discretion should have been exercised in favour of the appellant.

5. I find no merit in this appeal No. F. R. A. 188/1980 which is dis missed with costs. The appellant is however, granted time till 30th June, 1983 to vacate the premises. M. Y. M. Appeal dismissed.