1995 PLP 1117 (CLC)

This order was impugned in this appeal which was allowed by a learned Single Judge of this Court on the ground that the default if any was technical in nature and since the landlord had a sum of Rs.12,000 with her by way of security deposit learned Controller had not exercised his discretion judicially. The judgment dated 31‑3‑1988 in this F.RA. was challenged before the Supreme Court of Pakistan in Civil Appeal No. 126‑K of 1989 which was allowed on 21‑1‑1991 on the ground that it could not be sustained in view of the judgment in the case of Mrs. Zarina Khawaja v. Agha Mehboob Ahmad (PLD 1988 SC 190). However, since the appellant had raised some other pleas on merits before the High Court which were not considered in the earlier judgment, F.RA. was remanded to this Court for rehearing and decision on other pleas raised by the tenant. Appellant is the tenant of the respondent in respect of a shop situated in Ramswami‑Karachi by virtue of an agreement of tenancy executed on 31‑5‑1978 for eleven months at a monthly rent of Rs.60 and security deposit of Rs.12,000 with the respondent. Respondent sought eviction of the appellant on the ground of default in payment of rent w.e.f. 1‑5‑1979; impairing utility and value of the shop and using the rented premises for purpose other than for which these were let out on rent. Appellant in his written statement admitted the tenancy and rate of rent. He denied default and pleaded that he had been paying rent to the respondent regularly who after March, 1979 did not issue rent receipts on the pretext that she had not got the rent receipt book printed and assured that whenever it was printed entire receipts shall be issued to him. He, therefore, in good faith without suspecting any foul play continued to pay monthly rent. In March, 1980 on his insistence for issuance of rent receipts, respondent issued the same acknowledging receipt of rent till March, 1980 on a plain paper. He further added that respondent thereafter asked him to enhance the rate of rent from Rs.60 to Rs.200 per month without any lawful reason and refused to accept the rent for the month of April, 1980. Appellant thereupon sent by money order dated 6‑4‑1980 which was also refused whereafter he deposited rent from April, 1980 in M.R.C. No. 2301 of 1980. He denied all other allegations. In support of her case, respondent examined her husband and attorney Noor Muhammad while the appellant examined himself. As observed earlier, learned Controller found the appellant in default but he disagreed with the respondent on other two grounds for eviction. I have heard learned counsel for the parties. while learned counsel for the appellant has addressed his arguments on the issue of default, learned counsel for the respondent has not assailed the findings on issues relating to use of premises for purpose other than for which these were let out and impairing utility and value of the shop. Mr. KA. Wahab, learned counsel for the appellant has referred me to paras. 2, 3 and 4 of affidavit‑in‑evidence of the appellant in which he explained the payment of rent to respondent regularly up to March, 1980 and produced an acknowledgement receipt Exh.0/1 on plain paper duly executed by the respondent. He stated that thereafter respondent asked him to enhance rent from Rs.60 to Rs.200 without any lawful reason or justification and refused to accept rent for the month of April, 1980 which was later sent through money order on 6‑4‑1984. which too was refused whereafter appellant was obliged to deposit rent voluntarily in Miscellaneous Rent Case as stated above. It may be observed here that these vital and material statements of fact were not denied during cross‑examination of the appellant which by implication of law are deemed to have been accepted. As regards rent receipt Exh.0/1, it was confronted to the respondent's attorney and produced through him during cross‑examination when he expressed his inability to state if his wife had signed the said receipt but he was constrained to admit that the signature on the receipt was just like the signature of his wife. No doubt, this receipt does not bear the year as fairly conceded by the appellant the fact remains that the dispute in respect of rent arose after April, 1979 while action was brought in April, 1980 it would therefore be most probable and natural to assume that the receipt pertains to rent for January, February and March, 1980. Appellant has been throughout consistent and straightforward even before commencement of the proceedings because eviction proceedings were preceded by a legal notice dated 8‑3‑1980 Annexure `E' wherein the appellant was alleged to be in default after March, 1979, without the renewal of lease. In reply appellant through his Advocate had on 18‑3‑1980 refuted non‑payment of rent and asserted that he had been regularly paying rent to the respondent who had not issued rent receipts after March, 1979, on the pretext that she had not got new book printed and that he would get all the receipts, whenever it was printed. Appellant had also pointed out that on his insistence in March, 1980 she had issued a simple rent receipt for payment of rent up to March, 1980. Besides appellant in his evidence produced money order coupon and money order receipt Exh. 0/2 to indicate that he had sent rent for April, 1980 to the respondent on 2‑4‑1980 which according to his unrebutted evidence was refused while the respondent herself has not cared to appear in the witness‑box to dispute and controvert the case of the appellant.. It has been rightly contended that the respondent by not controverting the testimony of the appellant as regards regular payment of rent to the respondent in law she is deemed to have accepted the truth of his version. In the case reported as Muhammad Abdullah v. Mst. Sughra Begum (1988 CLC 2078) a learned Judge of this Court took the view that where the tenant categorically stated that he had been paying rent regularly and was not in arrears of rent and his version remained uncontroverted inasmuch as landlord did not come in the witness ?box to deny that fact it was held that he failed to prove default on the part of tenant in the circumstances. In my view the best possible evidence to deny the payment of rent could be that of the respondent herself but she deliberately did not appear for her evidence and remained content with the statement of her husband who also could not controvert the statement of the appellant on oath. Non‑appearance of the respondent is fatal to her case as the facts deposed could only be disputed by her being within her knowledge. Appellant's case is fully supported by the dictum of the Hon'ble Supreme Court in the case of Mst. Khairul Nisa v. Malik Muhammad Ishaque and others (PLD 1972 SC 25) where the Supreme Court observed as under "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case." On behalf of the respondent no attempt was made to explain the circumstance appearing against her in the evidence and the lack of cross?examination on material points with regard to the payment of rent. Learned counsel, however, contended that appellant had failed to prove the payment of rent by remaining silent for eleven months and that the rent receipt Ex. 0/1 was forged. I am not inclined to subscribe this view which is contrary to the evidence on record and moreso when the best evidence available with the respondent was withheld and not produced before the Controller. In this view of the matter, I am of the considered view that the respondent failed to establish default in payment of rent as alleged by her. Accordingly the impugned order cannot be sustained at law and is hereby set aside. For these reasons, this appeal is allowed but the parties are left to bear their own costs. H.B.T./R‑287/K?????????????????????????????????????????????????????????????????????? Appeal allowed.