1991 PLP 1329 (CLC)

Iqbal Ahmad Qureshi for Respondents. Date of hearing: 28th ApriL.1980. The respondents filed a petition for ejectment of the appellant from the house in dispute on the grounds of default and damaging the property. The appellant resisted the petition. After perusal of the evidence led by the parties, the learned Rent Controller held that neither the default was proved nor it was established that the appellant damaged the property. Thus by his order dated 14‑7‑1975 he dismissed the petition.

2. In appeal the learned Additional District Judge did not disturb the findings of the learned Rent Controller regarding damage to the property, but reversed his decision on the question of default. In his opinion, as the respondents specifically stated in the petition that the appellant was defaulter, therefore, it was for him to have proved that the rent was tendered for payment or actually paid to them. In view of his this finding, he accepted that appeal by his order dated 8‑4‑1976. Hence this second appeal.

3. The only point urged by the learned counsel for the appellant is that there is no evidence of default and that the learned Additional District Judge was wrong to hold that mere averment in the petition shifted the burden on the appellant to prove that he was not a defaulter. In order to support his this submission he took me through the evidence produced by the parties.

4. On perusal of the record, I have found that the respondents examined only two witnesses, namely Muhammad Hussain son of Piran Ditta (A.W.1) and Muhammad Hussain son of Nazir Hussain Shah (A.W.2). The latter also acted as an attorney for the respondents. None of them said even a word about the non‑payment of rent by the appellant. On the other hand, the appellant while appearing as his own witness deposed that he paid the rent regularly; Mst, Naseem Akhtar, respondent No.1, was his niece, who collected the rent; and because of close relationship between the parties, receipts evidencing the payment were not issued.

5. Both the parties had the opportunity to lead evidence. The burden of proof could have been shifted to the appellant, had the respondents asserted by entering the witness‑box that the rent was not paid to them. As observed above, they did not at all lead any evidence on the issue of default. In reply to the arguments of the appellant's learned counsel, on behalf of the respondents, their learned counsel merely toed the line of reasoning which weighed with the learned Additional District Judge to contend that the averment having been made by the respondents in the ejectment petition that the appellant was a defaulter, it was for the latter to substantiate that he did not commit any default. It is not possible to agree with him. The pleadings cannot be treated as a substitute for the evidence. In any case, both the parties having led evidence, the question of burden of proof became immaterial. As the respondents did not produce any evidence on the question of default, there is no reason to discard the appellant's categorical statement that he paid the rent to the respondents regularly. The learned Rent Controller thus rightly came to the conclusion that the respondents failed to prove that the appellant was defaulter. The view taken by the learned Additional District Judge is incorrect and cannot be upheld.

6. As a result of this discussion, this appeal is accepted, the impugned order set aside and the ejectment petition dismissed. AA./M‑3005/L Appeal accepted.