1992 PLP 120 (MLD)

Mirza Anwar Baig for Respondent. Date of hearing: 16th June, 1991. On 1st of July, 1986, the respondent filed an application under section 17 of the Cantonments Rent Restriction Act, 1963, seeking the eviction of the appellant from the shop in dispute which was occupied by him as a tenant under the respondent at a monthly rent of Rs.300. The ground on which the eviction was sought was non‑payment of rent with effect from November, .1985. These allegations were controverted by the appellant by filing written statement in which it was stated that the rent up to June, 1986 was received by the landlord but he did not issue any receipt and from July, 1986, the rent was being tendered through money order. Thereafter, it was deposited with the Rent Controller.

2. The Rent Controller by means of his order, dated 22nd of June, 1988, held that the appellant had failed to pay the rent with effect from November, 1985 to June, 1986 and was, therefore, liable to be ejected.

3. Mr. Muhammad Saleem, the learned counsel for the appellant, has contended that the finding of the Rent Controller that the rent had not been paid to the landlord is contrary to the evidence on the record. According to him, the landlord had failed to prove that the rent had not been received by him and, therefore, the order of the Rent Controller was not sustainable.

4. Mr. Anwar Baig, the learned counsel for the respondent, has, however, supported the order of the Rent Controller. He has relied upon Allah Din v. Habib (PLD 1982 SC 465).

5. The evidence in the pi went case consisted of the statement of the respondent asserting that the rent had not been paid for the disputed period and that of the appellant claiming that he had paid the rent but no receipt was issued. Although it is correct that the initial onus to prove non‑payment is on the landlord but if the landlord appears in the witness‑box and denies on oath the receipt of rent, the onus shifts on the tenant to establish payment of rent as a positive fact. In the present case, the statement of the appellant stood effectively rebutted by the respondent. The appellant did not lead any other A evidence to prove payment. The Supreme Court of Pakistan in the case cited by the learned counsel for the respondent held that in a case of oath versus oath, it is the tenant who should fail having not discharged the onus. The relevant observations are: ‑‑ "Applying the principles to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in second appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises."

6. I am not impressed with the submission of the learned counsel for the appellant that as the respondent admitted that he did not use to issue receipts for rent, the version of the appellant should be believed. It is to be seen that the landlord had made honest admission that in past though he had been receiving the rent, he did not issue any receipt. He could have very easily denied this fact but accepted what was correct. There is no reason to disbelieve the other part of his testimony that the rent for the disputed period was not paid. There is no force in this appeal which is dismissed, leaving the parties to bear their own costs. The appellant shall vacate the disputed shop within four months from today. AA./H/250/L Appeal dismissed.