1986 PLP 1774 (CLC)

4. In the written statement filed by the respondent the position was taken that rent for June, 1978 to October, 1978 was paid in cash in presence of two witnesses but receipts were not issued. The allegation of non‑payment of rent for the rest of the period was denied. Subletting and personal requirement was also denied. Issues in respect of subletting, default in payment of rent and personal requirement were framed.

5. Akhlaq Hussain filed his affidavit in support of the case of the appellants and stated that the rent had not been paid from June, 1978 to September, 1980. The cash payment for June, 1978 to September, 1980 was specifically denied. He also stressed that he requires the premises for personal use because he had started the business in the name of International Islamic Publishers. He also stated that the premises had been sublet by the respondent but did not give any details in respect of the person to whom the premises has been sublet or as to the time when they were sublet. In cross‑examination he admitted that his brother Afzal and lriran used to collect rent and they were present in Karachi. He also admitted that the landlord used to collect the rent in lump sum but not as a practice. He further stated that, they used to issue rent receipts. He denied that rent for June, 1978 to October, 1978 was paid and they had failed to issue the rent receipt. He admitted that he had not alleged that opponent received the rent from sub‑tenant. He denied that the respondent was doing the business himself but he was not in a position to give the name of the sub‑tenant. He further stated that he was doing business since last four or five years and was the Managing Director of International Islamic Publishers. But stated that he could not produce any documents to prove at that stage to show his relationship with the firm. He denied that he was not the Managing Director of the firm and stated that he was sitting in Golden Drink Shop as a temporary occupant, which was his brother's property and he was not paying any rent. A catalogue of International Islamic. Publishers was produced by him. Arif Hussain who is special attorney of Abdul Naeem examined himself in defence and stated that rent from June, 1978 to October, 1978 was paid in cash to the appellant in presence of two witnesses but he did not issue rent receipt.; saying that. he wanted to enhance rent. He further said that the appellant always collected rent in lump sum from him. He asserted ‑that the appellants have not demanded rents from him through any notice. He denied that he had sublet the premises and stated that they were in his use. He further stated that the appellants had sufficient accommodation at Karachi. In cross‑examination he admitted that the opponent was in Karachi but due to his illness he was unable to attend the Court and he was his maternal‑uncle. He further stated that he was doing job in the weaving factory in the disputed premises. He denied the suggestion that he was not the attorney of the respondent.

6. Mr. N.M. Shaikh for the appellant has argued that the Rent Controller has failed to take into consideration the statement made by the appellant No, 1 and, therefore, he has reached absolutely incorrect conclusions. He further submitted that the non‑payment of rent for the period from November, 1978 till' September, 1980 was almost admitted and yet the Rent Controller has riot treated it 3s ra default in payment of rent and in spite of the fact that no payment for this period had even been alleged by the respondent yet the Rent Controller has held that rent for this period had been paid. The respondent's counsel Mr. S. Inayat Ali has submitted that the appellant had not been able to discharge the initial burden of non‑payment of rent because the persons who used to collect the rent, namely, Irfan and Afzal have not been examined. He further stated that no subletting in the case had been proved and that the appellant had not been able to substantiate his connection with Messrs International Islamic Publishers.

7. Mr. N.M. Shaikh has relied upon 1982 S C M R 468 in which it was held that initial burden of non‑payment of rent is on landlord but the burden is discharged by statement of landlord in Court that he has not received rent and then the burden shifts on tenant to prove affirmatively that he had paid the rent.

8. Analysing the record and proceedings of the case in the light of the above Supreme Court case I have come to the conclusion that the respondent had not even alleged any payment of rent for the period from November, 1978 to September, 1980 and had merely denied in paragraph 5 of the written statement para. 5 of the application which had alleged that the respondent had continued to be a defaulter from Ist June, 1978 until date of application. This denial in the written statement cannot be treated as an allegation of payment of rent and, therefore, basically there was not even a suggestion by the respondent that rent for this period had been paid by him. Apart from that the initi.at burden of non‑payment of rent by tenant had been discharged by the affidavit of Akhlaq Hussain, who is landlord No. 1 in the case, who had made a definite statement that rent from June, 1978 till September, 1980 had not been paid. The respondent did not examine himself in the support of his case but merely his attorney filed affidavit and submitted himself to cross -examination. In his affidavit he merely alleged the payment of rent of June, 1978 to October, 1978 and did not allege any further payment. Even in respect of the payment of June to October, 1978 he had alleged that it was paid in presence of two witnesses but did not state as to whom particularly it was paid. Moreover, those two witnesses were not even examined in support of the case of the respondent which was necessary to corroborate his statement because no rent receipt had been produced. Therefore, the payment of rent from June to October, 1978 was doubtful.

9. In any case, in respect of the period from November, 1978 till September, 1980 the attorney of the respondent, namely, Arif Hussain, has merely stated that the appellants had collected the rent in lump sum from him and further stated that the appellants have not demanded rent from him through any notice. The defence of the respondent, therefore, appears to be that he had not paid rent because the same had not been demanded. This is not sufficient excuse for the non payment of rent. In any case, the non‑payment of rent had been clearly established by the appellant and had not been specifically rebutted by the respondent. Moreover, I find that on 19‑4‑1982 an order for deposit of 42 months of rent at the rate of Rs.125 per month from 1‑6‑1978 till 31‑12‑1981 amounting to Rs.5,250 had been made by the Rent Controller and there is no cross‑appeal by the respondent in respect of the said deposit order which clearly indicated that the respondent was really in default for the period of 1‑6‑1978 till date of application otherwise he would not have accepted the said rent order as a final order and would have at least filed a cross‑appeal after the conclusion of the case. I may state here that although the final decision in the case was in favour of the respondent in respect of the 'ejectment but still the payment order made on 19‑4‑1982 was clearly prejudicial to the respondent but he had failed to file cross‑appeal against the same and the appellants have deposited the rent in terms of that order. This again shows quite clearly that the rent was really in arrears on 30th September, 1980 for the period from 1‑6‑1978. I am, therefore, clearly of the view that non‑payment of rent from at least November, 1978 till September, 1980 had been clearly established in the case and, therefore, the Rent Controller was evidently wrong in his finding that the rent had been paid. This being the position, the ejectment of the respondent was clearly called for and should have been allowed.

10. Subletting has not been clearly proved by the appellant as he neither gave the particulars of the sub‑lessee nor time of sub‑lease. Moreover, Arif Hussain had stated that he was attorney and nephew of the respondent and was also working in the weaving factory of the respondent and, therefore, I accept the finding of the Rent Controller on the issue of subletting.

11. In respect of the personal need although the appellant No. 1 had stated that he was doing business in the name of International Islamic Publishers but he failed to prove any connection between him and the said Publisher Firm and, therefore, the personal need was not affirmatively established.

12. Consequently, the appeal of the appellant on the point of subletting and personal need is dismissed. However, the appeal is allowed on the point of default and the Rent Controller's order to that extent is set aside and the respondent is directed to hand over vacant possession of the disputed premises to the appellants.

13. Mr. S. Inayat Ali submitted that respondent is carrying out the business of weaving factory and, therefore, it would mean great dislocation for him if immediate ejectment is ordered and he, therefore, requested for 8 months time for this purpose. Mr. N. M. Shaikh, appellant's counsel, gracefully conceded to this position provided the respondent deposits the rent in Court regularly. Consequently, I allow the respondent 8 months time to vacate the premises in dispute provided he deposits the rent regularly with Rent Controller. Direct writ of possession without notice to the respondent will be issued against the respondent after 8 months from today or even earlier if he fails to deposit the rent in time. H. B. T. Appeal accepted on ground of default only.