1997 PLP 1030 (MLD)

In support of their case, respondents filed affidavit‑in‑evidence of respondent No.2, Shaikh Abdul Sattar, who was cross‑examined on behalf of appellant. Appellant's husband/attorney, Aziz Mian, filed his affidavit‑in -evidence but did not turn up for cross‑examination on a number of hearings with the result that her side was closed and an ex parse ejectment order was passed on 27‑1‑1987. This order was challenged in F.R.A. 292/1987 which was disposed of by consent of parties' counsel. Ejectment order was set aside and the case was remanded to the learned Controller with a direction to allow the parties to have their evidence recorded in the matter and to decide the case within a period of two months. It appears that the parties did not adduce any evidence in the lower Court with the result that learned Controller by an order dated 18‑12‑1988 allowed the eviction application holding that after the remand of the case none of the parties had produced any evidence with the result that the earlier order passed by her predecessor remained intact. This order was also called in question in F.R.A. No.479/1989 which again was allowed by consent of the parties' counsel and the case was remanded to the Controller for a fresh trial in accordance with law. After the second remand order appellant's husband/attorney appeared before the Controller and was cross‑examined by the respondents. Learned Controller settled the following points for determination:

"(1) Whether the opponent has committed wilful default in payment of rent? (2) Whether opponent has paid Rs.60,000 as Pagree? (3) What should the order be?" On assessment of evidence and hearing parties' counsel, learned Controller held that the appellant had committed wilful default in payment of rent and she had failed to prove the payment of Rs.60,000 as goodwill to the respondents. Accordingly he ordered eviction of the appellant which has been impugned in this appeal. Mr. Muhammad Ayaz Khan, learned counsel for appellant, contended that the appellant had been regularly paying rent to the respondents through her husband but no receipt was issued to her. He next contended that the ejectment application had been filed after a lapse of 33 months which would show that there was no default on the part of the appellant and that a false ground had been taken to seek eviction of the appellant. In his evidence, respondents' witness Shaikh Abdul Sattar categorically stated that the appellant was their tenant since November, 1976, under a tenancy agreement dated 13‑11‑1976 but she had failed to pay rent since July, 1977 and the arrears of rent amounting to Rs.12,025 were due against her till July, 1980. He added that respondents had served a registered legal notice dated 25‑7‑1979 on the appellant calling upon her to pay the arrears of rent but she neither replied the notice nor paid the rent. Appellant's attorney Aziz Mian, on the other hand, stated that appellant had been tendering rent regularly but the respondents never issued any receipt. He made a grievance of the fact that after receiving rent for the month of March, 1980 respondents through their attorney had demanded enhanced rent at the rate of Rs.1,000 per month and Rs.1,00,000 by way of Pagree which was refused. Respondents' witness in his cross‑examination has denied the allegations of the appellant but he admitted that fixed deposit, of Rs.10,000 had been paid to the respondents. Under the law it is the duty of the tenant to pay rent to the landlord and to obtain a valid receipt for payment. Since non‑payment of rent is a negative factor, it is initially for the landlord 'to prove that no rent was paid to him. In this case, landlord having entered in the witness‑box and stated on oath that rent from July, 1977 had not been paid by the tenant, burden shifted on the appellant to prove payment of rent by positive evidence. It would appear that there is oral word of the husband of the appellant that the rent had, in fact, been paid but no receipt had been issued therefore. In the circumstances of the case, statement of the respondents carries weight as they have no reason to deny the receipt of rent and to ask for eviction of the tenant. Their conduct is further supported by the legal notice dated 25‑7‑1979 served on the appellant before seeking her ejectment and approaching the Controller for this purpose. A copy of the notice has been produced alongwith the ejectment application which very clearly supports the version of the respondents. Admittedly, legal notice was received by the appellant but she did not reply to it. By not controverting this notice appellant is deemed to have accepted the case of the respondents as correct and she believed that she had no defence to offer. It would appear that appellant did not come to Court with clean hands and the fact remains that she was rightly found in default in payment of rent. Needless to point out, she had advanced uncalled for grounds that she had paid a huge amount by way of Pagree to the respondents without any acknowledgement receipt or circumstance to support her plea. No other ground has been urged in support of this appeal which is without any merit. I would therefore, dismiss the appeal and direct the appellant to hand over vacant possession of the shop premises to respondents within 60 days, subject to deposit of monthly rent. H.B.T./N.2/K Appeal dismissed.