1986 PLP 1754 (CLC)

The respondent /applicant is owner of House No. 7, Block 1, Federal 'B' Area, Karachi, and Dr. Ejaz Hussain Jaffery was tenant. Dr. Ejaz Hussain Jaffery died and respondent No. 2 was admitted to tenancy on a monthly rent of Rs.225 with effect from 1st January, 1977. The respondent filed eviction application No. 3585 of 1980 stating therein that the respondent No. 2 passed the premises to the appellant who is in exclusive possession thereof. The grounds stated therein are that the premises have been badly maintained and damaged, otherwise than due to usual wear and tear, thereby impairing the material value and to utility of the premises and also on the ground of personal bona fide requirement.' The respondent No. 2 filed written statement and stated in para 7 thereof that the respondent is entitled to the relief sought by him. The appellant resisted the eviction application. The respondent filed affidavit‑in‑evidence and he submitted for cross‑examination. The appellant filed affidavit‑in‑evidence and also filed affidavit of Syed Janbaz Hussain Jafri and he submitted for cross‑examination. The learned Rent Controller, on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1 and 2 in the affirmative and issues 3 and 4 in the negative and allowed the eviction application on the grounds of sub‑letting and default vide order, dated 31‑5‑1984. The appellant being aggrieved by the aforesaid order, dated 31‑5‑1984 of the IXth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Farman A. Hashmi, the learned counsel for the appellant, has contended that the grounds of default and sub‑letting have not been proved in this case. On the other hand Mr. Nisarally, the learned counsel for the respondent, has submitted that the findings are in accordance with evidence on record. Reverting to the first contention of the learned counsel that the default is not proved. The respondent in his eviction application averred that the appellant has committed default in payment of rent with effect from 1‑6‑1979 to 31‑5‑1980. The appellant in his written statement averred that the agreed rents are being deposited in the name of respondent No.

2. He further averred that the appellant and respondent No. 2 were allowed by the respondent No. 1 an adjustment of Rs.3,000 for the sake of repairs and general white‑washing which were long due on account of usual wears and tears for lapse of time. In any case the said amount was also deposited by the appellant and appellant noticing the failure of the respondent No. 1 to keep his commitment. The respondent No. 1 in his affidavit‑in‑evidence has stated as under:‑ "Keeping in view the deposit of rent of the premises in Miscellaneous Rent Case No. 3629/77 amounting to Rs.5,400 before the date of the above rent application, dated 3‑7‑1980 (withdrawn by me on occasions) leaving rent in arrears for the period from i‑6‑1979 to 30‑6‑1980 (both inclusive) amounting to Rs.2,

925. In addition to aforesaid sum of Rs.2,925 thus in arrears I became entitled to the sum of Rs.225 per month for the subsequent period of six months from 1‑7‑1980 to 31‑12‑1980 amounting to Rs.1,350 both aggregating to Rs.4,275 out of which I withdrew the sum of Rs.3,150 still leaving in arrears the sum of Rs.1,125 for the period upto 31‑12‑1980." The respondent No. 1 in his cross‑examination has stated that it is not a fact that appellant demanded adjustment of the expenditure on Sui‑gas installation in the monthly which he refused. Respondent No. 2 did not ask for such adjustment. In his cross‑examination he denied the suggestion that it is not a fact that the appellant demanded adjustment of Rs.3, 2U0 on account of repairing and Sui‑gas installation charges and that he did not agree to his demand. The appellant in his affidavit-?in‑evidence has stated that the monthly rent of Rs.225 is being deposited by him in Miscellaneous Rent Case No. 3629,'77 regularly. In his cross‑examination he has stated that he personally made all the deposits in the Court. He has further stated that "all the receipts are available with me. I cannot say at this stage whether the Nazir's report regarding deposit in Miscellaneous Rent Case is correct but I have not brought rent receipts. I can definitely answer this question after seeing the rent receipts which are available with me at my residence. I cannot produce the receipts about the deposit made by me. I accept report of the Nazir. It is a fact that there are rent arrears for the period from 1‑6‑1979 to 31‑5‑1980." I have perused the Nazir's report. It appears from the report that on 21‑3‑1979 he deposited Rs.450. On 19‑8‑1979 he deposited Rs.900. Thereafter he deposited Rs. 1,800 on 23‑7‑1980. It seems from the report that no rent was deposited between 19‑8‑1979 upto 23‑7‑1980. Moreover no' rent receipts were produced before me. The burden was on the appellant which he failed to discharge. In these circumstances I find that the order of the learned Rent Controller is in accord with evidence on record. Reverting to the second contention of the learned counsel for the appellant that the respondent No. 2 did not sublet the premises to him but the appellant is occupying' the same in his own right since 1971. The respondent No. 1 in his eviction application and in his affidavit‑in‑evidence has stated that he agreed to let out the premises to the respondent No. 1 as per agreement Exh. 4‑C. The appellant in his written statement has stated that he was residing with Dr. Ejaz Hussain Jaffery since 1971 and he was one of the legal heir of late Dr. Ejaz Hussain Jaffery. He examined D.W. Syed Janbaz Hussain in support of his version that he is residing in the premises since 1971. D.W. Syed Janbaz Hussain is relative of appellant. He is interested witness. He has not adduced any independent evidence in support of his case. The respondent No. 2 filed written statement and has stated therein that she was the tenant and had surrendered the possession to the appellant. It may be observed that once a tenant admits that the premises in dispute is in possession of some body else, in that event the burden of proof is on him to explain in what capacity the other person is occupying the premises. In the instant case the appellant stated in his deposition that he is son of the daughter of late Dr. Ejaz Hussain Jaffery. His mother is not resident of Pakistan but she is resident of India. In my view the learned Rent Controller could conclude on the basis of the evidence on record that the fact of sub‑letting has been proved. For the aforesaid reasons, I maintain the order under appeal on both the grounds of default and sub‑letting and, therefore, dismiss the appeal but there will be no order as to costs. The appellant is allowed six months time from today to hand over vacant possession of the premises to the respondent No.

1. H . B . T .??????? Appeal dismissed.