1994 PLP 1656 (CLC)

Date of hearing: 13th August, 1992. This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has arisen in somewhat unusual circumstances.

2. On 2‑7‑1986 the respondent No. 1 filed an application of eviction under section 15 of the Sindh Rented Premises Ordinance, 1979, against respondent No. 2 (Rent Case No. 464 of 1986), claiming him as his tenant on monthly rent of Rs.1,200 in respect of House No. 7/B, Block‑II, PECH Society, Karachi. It was alleged that respondent No. 2 was a habitual defaulter and he was in arrears for 18 months till 20‑6‑1986. It was also averred in the application for ejectment that the respondent No. 1 required the premises for his personal bona fide use. On 10‑12‑1986 the appellant made an application before the Rent Controller for joining her as a party in the said case on the ground that the disputed premises was rented out to her by respondent No. 1 through his attorney Muhammad Hanif on a monthly rent of Rs. 500, who had also received a sum of Rs.8,000 as advance from her which was adjustable towards the arrears of rent. It was pleaded by the appellant that the said Muhammad Hanif avoided to collect the rent from her and consequently she contacted the respondent No. 1 at the given address and offered him the rent due, which was refused by him and accordingly she remitted the rent through money order and finally deposited the same in M.R.C. No. 845 of 1986. The respondent No. 2 filed his written statement whereby he admitted the tenancy, but disputed other allegations. According to him he had gone out of the country and during his absence allowed one of his relatives to occupy the said premises as licensee who had undertaken to pay the rent to the landlord, but on return the said licensee, viz. the appellant refused to vacate the premises.

3. The parties went to trial on the following issues:‑‑ (i) Whether opponent No. 1 was the tenant of the applicant at the rate of Rs.1,200 per month, if yes, whether opponent no. 2 was put into possession by opponent No. 1? (ii) Whether the opponent has committed wilful default in payment of rent as alleged in the ejectment application? (iii) Whether the demised premises is required by the applicant for his personal bona fide use? (iv) What should the order be?

4. The respondent No. 1 examined Rafique Ahmed, his father and attorney (P.W.1) and then closed the side, while the appellant examined herself (D.W.1) and then closed the side. The respondent No. 2, however, did not step into the witness box.

5. On the assessment of evidence, both oral as well as documentary, available on record the learned Rent Controller decided all the issues against the appellant and consequently directed her and the respondent No. 2 to vacate the demised premises within a period of two months. This order dated 27‑2‑1990 is the subject matter of this appeal.

6. I have heard Mr. S. Ansar Hussain, learned counsel for appellant and Mr. Muhammad Ahsan Shaikh, learned counsel for respondent No.

1. I have also gone through the record of this case carefully.

7. The fact that respondent No. 1 is the owner/landlord of the disputed premises is not in question. Rafique Ahmad (P.W.1), who is father and attorney of respondent No. 1 has testified that this premises was rented out to respondent No. 2 on a monthly rent of Rs.1,

200. He has produced photo copy of latest rent receipt (Annexure P/2) to prove it. The respondent No. 2 who had contested the ejectment proceedings at the initial stage has admitted this fact in clear terms. The appellant who claims to be the tenant of this premises at the rate of Rs.500 has tried to rebut the evidence adduced on behalf of respondent No. 1 by claiming to have taken this premises on rent through Muhammad Hanif, the attorney of the respondent No.

1. She also claims to have paid an advance amount of Rs.8,000 to said attorney. There is, however, nothing on record to substantiate this plea. Admittedly the said Muhammad Hanif was not known to the appellant and it is beyond imagination that the appellant would have parted with such a .heavy amount without getting a receipt executed. The said Muhammad Hanif was not even examined by the appellant who has also not produced any documentary evidence to prove that this premises was rented out to her by the respondent through Muhammad Hanif. Even the record does not show that so said Muhammad Hanif is a living person and he has ever acted as attorney on behalf of respondent No.

1. The learned Rent Controller has considered this aspect of the case which was disposed of in the following words:‑ "It is settled law that when the landlord alleged default against the tenant then the burden shifts upon the opponent to prove that the payment has been made for the alleged period of default. In the instant case there is no documentary evidence produced nor any other witness has been examined by opponent No. 2 to show that she had paid the entire rent or even any advance rent was paid by her. From the cross examination of opponent No. 2, it is crystal clear that she has set‑up a false story in her defence."

8. Mr. S. Ansar Hussain, learned counsel for appellant has contended with force that the written statement filed by respondent No. 2 cannot be used as substantive piece of evidence, as respondent No. 2 was not examined in Court. There is no cavil with this proposition of law, but an admission made in the written statement can be used as evidence. If any authority is needed the case of Nazir Ahmad Khan and 2 others v. Muhammad Ashraf Khan and 3 others, reported in PLD 1975 Karachi 598, may be cited with advantage. The case of Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others, reported in PLD 1972 SC 25, stands on quite different footings and in that case the burden lay heavily on the person who could not be examined in Court as he had died after filing of written statement and there was no admission in that case. In the present case even if the admission made by respondent No. 2 in written statement is discarded, there is overwhelming evidence on record to prove that the respondent No. 2 was the tenant of respondent No. 1, on a monthly rent of Rs.1,200 and the appellant occupied the same unauthorisedly without the permission of respondent No.

1. In this view of the matter, the finding of learned Rent Controller on issues Nos. 1 and 2 is not open to an exception.

9. On issue No. 3 the said Rafique Ahmad (P.W.1) has testified that the respondent No. 1 who is presently residing out of country needs the disputed house for his own occupation. The appellant who is proved to be an unauthorised occupant has tried to rebut this evidence by examining herself on oath as (D.W.1). Since she has got no locus stand' it is obvious that the evidence of Rafique Ahmad (P.W.1) has gone unrebutted. A person residing out of country has a right to occupy his own premises on his return from the country where he is presently residing. The fact that Rafique Ahmad (P.W.1) owns a big bungalow is again not sufficient to deny this right of occupation to respondent No. 1 who wants to reside independently in his own house. The finding of learned Rent Controller on issue No. 3 also appears to be correct.

10. In the result there is no merit in this appeal which is accordingly dismissed with costs. Two months' time is, however, allowed the appellant to vacate the demised premises. A.A./Z‑224/K Appeal dismissed.