1986 PLP 1551 (CLC)

‑‑‑S. 21(1)‑‑Default in payment of rent‑‑Vispute on rate of rent‑‑Nature of evidence‑‑Proof‑‑Tenancy admittedly was oral and nothing was available in writing‑‑Landlord himself admitted that he was not issuing receipts of rent‑‑Tenant could not produce any documentary evidence to prove payment of upto date rent and rate of rent due to non‑issuance of receipts by landlord‑‑Evidence of both parties was oral‑‑Rent Controller, in view of oral evidence against oral evidence, held, should have placed evidence of both parties in even scales and conceded the benefit of certainty to tenant rather than to landlord who had not been issuing rent receipts. Rashiduddin Ahmed Khan for Appellant. S. S. Hamid for Respondent. Date of hearing: 19th May, 1985. The appellant Amin Master (Aminuddin), is a tenant of the respondent Abdul Rashid in a house on Plot No. 1528, Sector 8/L Orangi Township, Karachi. The respondent filed Ejectment Case No. 793/79 before XVIIIrd Senior Civil Judge and Rent Controller, Karachi on 12‑2‑1979, on the ground of default in payment of rent since February, 1977. The appellant resisted the ejectment application contending that he had paid the rent upto December, 1978. There was also dispute over the rate of rent. According to the respondent/landlord, the monthly rent was Rs.l0U, whereas, the appellant's case was that the monthly rent was Rs.40 p.m. The learned Controller struck 2 and 3 issues, one regarding the rate of rent, the other one regarding the default in payment of rent and the 3rd regarding the nature of the order to be passed. The parties adduced oral evidence in the form of affidavits. The learned Controller held by his order, dated 9‑4‑1984 that the rate of the rent was Rs.100 p.m. and the appellant had committed default in payment of rent since February, 1977,, and passed the order of ejectment and directed that the vacant possession of the premises should be delivered to the landlord/ respondent. The appellant has challenged the order of ejectment under this appeal.

2. The learned counsel for the appellant has urged that the respondent did not prove that the rate of the rent was Rs.100 p.m. and also that the rent was not paid from February, 1977. He has criticised the order of the learned Controller that he has proceeded on wrong premises in holding that the appellant/ tenant had failed to prove that the rent of the premises was Rs.40 per month; and that he had not paid rent since Feburary, 1977 as alleged by the respondent /landlord. On the other hand, the learned Advocate for the respondent has contended that there is evidence on record that the rate of rent was Rs.100 per month and the default in payment of rent had accrued from February, 1977. According to him, the order of ejectment has been passed on the appraisement of the evidence.

3. It is the case of both the parties that the tenancy was established by way of oral agreement and there was nothing in writing. It has been brought in evidence through admission of the respondent landlord that no receipts were being issued for the payment of rent. Accordingly, the decision of ejectment case rests entirely on the oral evidence. On the side of the respondent /landlord, who filed the ejectment application, there is evidence of the respondent himself and two witnesses,. Nizakat Hussain and Munshi Khan. On the appellant's side, there is evidence of the appellant and one witness by name Muhammad Hafeez. Affidavit of another witness Abdul Rashid was filed, but he was not produced for cross-examination. As indicated above, there is oral evidence against oral evidence. Since the respondent /landlord was not issuing rent receipt as admitted by him, the appellant /tenant could not produce any documentary evidence to prove that the rent had been paid upto December, 1978. Also likewise, no documentary evidence could be led to prove the rate of rent. In this situation, the learned Controller wrongly laid burden of proof on the appellant that the rate of rent was not Rs.100 p.m. and that it had not been established that the rent had been paid upto December, 1978, and he accepted the version put forth by the respondent /landlord and passed the order of ejectment As the facts are the learned Controller should have placed the evidence of both the parties in even scales and conceded the benefit of certainty to the tenant rather than to the landlord who had not been issuing) rent receipts. It appears from the evidence on record that there had) been tussle between the parties, the same premises and there were allegations and counter-allegations. The important factor to be taken into consideration is that the respondent /landlord has alleged that the rent was not paid from February, 1977 and yet the ejectment case was filed in February, 1979 i.e. after about two years. If there was default in payment of rent since February, 1977 and there was tussle between the parties, the same premises, there was no reason for not filing the ejectment case earlier. In the circumstances of the case, no case was made out for passing the order of ejectment. Accordingly, the impugned order, dated 9-4-1984 is set aside and the appeal is allowed. In the result, the ejectment application stands dismissed. No order is made for costs. H.B.T. Appeal allowed.