1985 PLP 1952 (CLC)

This appeal under section 21(1) of the Sind Rented Premises Ordinance, 1979 is directed against the order of the Rent Controller, dated 1-11-1981, rejecting ejectment application filed by the appellant against the respondent. The appellant who is the landlord of the premises occupied by the respondent, had applied for eviction of the respondent on the grounds of default, personal requirement and conversion of the premises from residential into a godown. The Rent Controller decided all the above issues against the appellant and consequently dismissed the ejectment application. The appellant had alleged default in payment of rent in his eviction application from February, 1976 to July, 1976 for six months amounting to Rs.150. In reply to this allegation the respondent in his written statement stated that the appellant used to collect the rent from the respondent at irregular intervals as and when it suited him against printed receipt. It is further alleged in the written statement by the respondent that the appellant collected the rent in February, 1976 for the month of September, 1975 to January, 1976 and dial not issue printed receipt on the pretext that the printed receipt has been exhausted. It is also alleged that again the appellant collected rent from February, 1976 to July, 1976 but he did not issue any receipt therefor. It is, therefore, quite clear from the defence taken by the respondent that firstly he had paid the rent for the disputed period for which no rent receipt was issued by the appellant and secondly there was a practice of collecting rent in lump sum by the appellant and therefore, there was no default. The Rent Controller decided the issue of default against the appellant holding that there was practice of receiving rent in lump sum and therefore, there was no default committed by the respondent. The findings of the Rent Controller are quite contrary to the evidence on record. The appellant in his evidence categorically stated that no rent was paid to him by the respondent for the period from February, 1976 to July, 1976. In view of the fact that on all earlier occasions the appellant used to issue receipts for the payment of rent so received by him the burden of proving that the rent for the disputed period was paid by the respondent in these circumstances lay on the respondent. It may be mentioned here that in the written statement in paragraph 3 it has been clearly stated that the appellant used to collect the rent from the respondent at irregular intervals as and when it suited him against printed rent receipt. However when respondent came in the witness-box he produced printed receipts of rent only upto 1969 and thereafter he did not produce any receipt for the period from 1969 to 1976 except one receipt from September, 1975 to January, 1976. The learned counsel for the respondent contends that no receipts were issued by the appellant after 1971 when the rent was increased by the appellant. This plea of the respondent cannot be accepted as firstly in his written statement the respondent did not state this fact and on the contrary the case pleaded by him was that the appellant used to collect rent at his convenience against printed receipt. Secondly in the cross-examination of the appellant the only suggestion made to him was that he had not issued receipt for the period from September, 1975 to January, 1976 and from February, 1976 to July, 1976. There was no suggestion to the appellant in cross-examination that he did not issue any receipt for the period from 1971 upto 1976. The fact that Exh.A/3 produced by the respondent in cross-examination of the appellant shows that the authorised agent of the respondent had issued a receipt for payment of rent from September, 1975 to January, 1976 completely belies the stand of the respondent that the appellant was not issuing receipt after, 1971. The only other plea on which the Rent Controller disallowed ejectment on the ground of default is that there was an established practice for payment of rent by the respohdent to the appellant in lump sum. Firstly there is no evidence on record to show that between period from 1970 to 1976 the appellant ever accepted rent in lump sum except one receipt which Exh.A/3, which is for the period from September, 1975 to January, 1976. This solitary receipt issued by the appellant between the period from 1970 to 1976 cannot raise to a presumption that the parties have agreed for payment of rent in lump sum. In addition to it in view of the decision in the cases of Mrs. Alima Ahmad v. Amir All P L 1) 1984 S C 32 and Abdul Rashid v.13 Saleh Muhammad 1980 S C M R 506 the plea of practice of payment of rent in lump sum is no more available to a defaulting tenant. I would accordingly reverse the finding of the Rent Controller on the issue of default and hold that the respondent has committed default in payment of rent. In so far the issue of personal and bona fide requirement is concerned the Rent Controller disallowed the ejectment on the ground that the accommodation with the respondent is the same as is the accommodation in possession of the appellant. Further factor which influenced the decision of the Rent Controllers was that the appellant did not produce any documentary or oral evidence to show that he requires premises for purposes of his son who was going to be married recently. None of the reasons given by the Rent Controller are supported by evidence on record. The appellant in his application as well as in his evidence before the Rent Controller clearly stated that he needed extra accommodation for his family as the present accommodation with him was insufficient for the need and requirement of his family. The appellant in his evidence has given the number of his family members and the details of the accommodation which clearly establishes the genuine requirement by the appellant for extra accommodation. The statement made on oath by the appellant before the Rent Controller is quite consistent with the averments made by him in the application for eviction and this statement could not be shaken in the cross-examination nor anything in rebuttal was brought in the evidence. I accordingly reverse the finding of the Rent Controller on this issue as well. The issue regarding conversion of premises from residential into a Godown was not pressed by the learned counsel for the appellant. As a result of above discussion I accept the appeal, set aside the order of Rent Controller and direct the respondent to hand over vacant and peaceful possession of the premises within six months from today subject to the condition that he will continue to deposit monthly rent at the agreed rate before the Rent Controller for this period and in case he commits default in depositing the rent he will be evicted without notice. There will be however, no order as to costs. M.A.K. Appeal accepted.