1995 PLP 836 (MLD)

First Rent Appeals Nos.369 of 1992 and 605 of 1986, decided on 9t1 September, 1990. ‑‑‑‑S.15(2)(ii)‑‑‑Default in payment of rent‑‑‑Main dispute between parties related to quantum of rent‑‑‑Landlord was claiming rent at rate of Rs.330 p. m which included Rs:30 p.m. as water charges while tenant claimed that rent of premises was only Rs.300 p.m.‑‑‑Tenant, in tentative rent order, was directed to deposit rent at rate claimed by tenant‑‑‑Rent Controller without taking into consideration two receipts showing rent at rate of Rs.330 p.m. and despite protest of landlord, concluded that rent payable by tenant was Rs.300 p.m. and not Rs.330 p.m. as claimed by landlord and accordingly it was found that no default was committed in payment of rent by tenant‑‑‑Such finding of Rent Controller was based on misreading of evidence as landlord in his evidence had claimed that rent was Rs.330 p.m. which included Rs.30 p.m. as water charges‑‑‑Rent Controller did not agree with contention of landlord and found that he had failed to discharge burden of proof in that regard despite the fact that tenant could not produce any receipt in proof of his claim that rent of premises was Rs.300 p.m.‑‑‑Case was remanded to be decided afresh after allowing parties to produce evidence in support of their respective claims with regard to quantum of rent of premises. Munawar Malik for Appellants. Tasawar Ali Hashmi for Respondent. Date of hearing: 9th September, 1990. On 2‑9‑1990 when I heard this appeal partly, I noticed that the main dispute in the case related to the quantum of rent. The landlord/appellant was claiming rent at the rate of Rs.330 per month which included Rs.30 per month as water charges while the respondent claimed that the rent was only Rs.300 p.m. In the tentative rent order passed by the Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, the respondent was directed to deposit the rent at the rate of Rs.300 which he is regularly depositing till today. At the conclusion of the trial the Rent Controller reached the conclusion that the rent payable by the respondent was only Rs.300 p.m. and not Rs.330 as claimed my landlord and accordingly it was found that no default was committed in payment of rent by the respondent. This finding of the Rent Controller is obviously based on misreading of evidence. The landlord in his evidence before the Rent Controller claimed that the rent was Rs.330 p.m. which included Rs.30 per month as water charges. The Rent Controller did not agree with the contention of appellant and held that the appellant failed to discharge burden of proof in this regard. In arriving at this conclusion the Rent Controller found that there was no water connection in the premises and as such the question of payment of water charges by the respondent did not arise. The Rent Controller also found that the case of respondent on this score was fully supported by the other witnesses in the cases. It is an admitted position in the case that the appellant used to issue rent receipts whenever he collected rent. In the written statement filed on behalf of the respondents in the rent case, it was asserted that after the death of the original tenant Qutubddin, the rent receipts were being issued by the appellant in the name of deceased tenant in spite of protest by the respondent. The appellant produced before the Rent Controller photostat of two receipts alleged to have been issued to respondents in the name of previous tenant Qutubddin which show that the appellant had recovered rent from the respondents at the rate of Rs.330 per month which included Rs.30 as water charges. The Rent Controller however, did not accept these receipts on the ground that they are not exhibited in record. If the Rent Controller was in any doubt about these receipts he could call upon the respondents to produce the original of these rent receipts as they admitted that rent receipts were regularly issued to them by the appellant. The attorney of respondents in his cross examination also stated that rent receipts were in possession of respondent No.l who could produce the same. With regard to the observations of Rent Controller, that there was no agreement between the parties for payment of water charges and that there was no water connection in the premises and as such the question of payment of water charges did not arise. These observations are also contrary to evidence on record. The respondent's attorney Bashir Ahmed in cross‑examination stated that he was not aware if respondents were paying water charges and appellant was issuing rent receipts acknowledging water charges. Khawaja Abdul Jalil, another witness of respondents also stated that it was not in his knowledge that Qutubddin used to pay Rs.30 per month as water charges to appellant. This witnesses further admitted in cross‑examination that water line was in the disputed premises from the very beginning. In the background when I heard this appeal on 2‑9‑1990, I directed the respondents to produce the original rent receipts in Court. The respondents, however, took the plea that the rent receipts are not traceable. This plea on its face appears to be an afterthought in view of the above discussed evidence. However, keeping in view the fact that the parties did not have full opportunity of leading evidence on the question of quantum of rent and the issue of default mainly rested on a finding on this disputed point, I set aside the impugned order and remand the case to the Rent Controller with the direction that the appellant may be allowed opportunity to produce the counterfoils of rent receipts or other evidence in support of his contention that the monthly rent of the premises is Rs.330 p.m. The respondents are also at liberty to produce the rent receipts which were issued to them by the appellant for the said premises. The Rent Controller will re‑determine the issue of default in the light of the evidence so recorded. There will be no order as to the costs. H.B.T./I‑247/K Order accordingly.