1990 PLP 1548 (CLC)

This First Rent Appeal is directed against the order dated 20‑12‑198: passed by the Xth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application was allowed and the appellant was directed to hand over the vacant possession to the respondent within three months from the date of the order. The facts leading to the filing of the above appeal are that the respondent is the landlord of building standing on Plot No.2/44‑E, P.E.C.H. Society, Karachi and the appellant is tenant in respect of 2nd floor premises on a monthly rental of Rs.210 payable after the expiry of English Calendar month. The respondent filed eviction application being Rent Case No.5147 of 1980 against the appellant on the ground that "the opponent is a habitual defaulter in the payment of rent and has failed to pay and/or tender the rent of the premises in his occupation. The opponent has failed to pay rent from 1st April, 1975 to 31st July, 1980 in respect of the premises in his occupation in spite of repeated demands and requests. Hence this application." The appellant filed written statement wherein he stated that "the opponent has been most regular in the matter of payment of rent to the applicant." The appellant stated that the rent at the time of occupation was Rs.150 per month which was raised to Rs.210. The appellant also stated that the respondent did not issue receipts and the appellant being of the same faith relied upon his words and faith. He issued the last receipts in the month of March, 1975. The appellant also stated that the appellant in order to save himself maintained a proper diary of payment on each account every month. The appellant annexed a photostat copy of statement of accounts of rent paid by the appellant to the respondent. The statement relates to a period commencing from October, 1974 to July, 1980. It is the case of the appellant that the respondent refused to accept the, rent for the month of August 1980 at usual rate. The respondent demanded Rs.400 from that month to which the appellant lid not agree. The appellant had no choice but to send the rent by money order which the respondent refused to accept and the money order was returned undelivered. It is the further case of the appellant that he continued to send money orders which the respondent did not receive. The appellant after seeking permission to deposit rent thereafter started depositing rent. The respondent filed his own affidavit‑in‑evidence in support of the application. The appellant filed affidavit‑in‑evidence of his brother and duly constituted attorney Majeed Alam. They were cross‑examined by the learned counsel for the respective parties. The Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application vide order dated 20‑12 1983. The appellant being aggrieved against the order dated 20‑12‑1983 of the Xth Senior Civil Judge/Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the Memo of Appeal. Mr. Iqbal Afridi has contended that the learned Controller has not applied his mind to the facts of the case. On the other hand Mr. Muhammad Sadiq the learned counsel for the respondent has submitted that the order is in accord with the evidence and the learned Controller has applied his mind to the facts of the case. The respondent averred in his eviction application that the appellant had failed to pay rent from 1‑4‑1975 upto 31‑7‑198() in respect of the premises in question. The appellant denied the default and asserted that the respondent had been regularly receiving the monthly rent from him but avoided to issue rent receipts. The respondent reiterated the same facts in his affidavits‑in‑evidence. The appellant filed affidavit‑in‑evidence of his attorney besides affidavit‑in evidence of T.T. Daryani and A.M. Perchani. The appellant resisted the eviction application on the grounds that he paid rent to the respondent upto July 1980 and thereafter the respondent wanted to enhance rent which was not accepted by the appellant. As the respondent refused to accept rent at the old rate of rent as such he filed Misc. Rent Case No.5355 of 1980 and started depositing rent from August 1980. The other ground was that he paid rent regularly to the respondent and the respondent avoided to issue rent receipts to the appellant. In support of his ground the appellant riled affidavits‑in‑evidence of T.T. Daryani and A.M. Pcrchani. I have perused the affidavits‑in‑evidence of these witnesses. A perusal will show that whenever they paid rent to the respondent he used to issue receipts to them and these two witnesses paid rent upto March 1982 and it is an admitted position that the respondent issued rent receipts to these two witnesses. The evidence of these two defence witnesses does not support the version of the appellant. The respondent in his evidence categorically stated that no rent was paid to him by the appellant for the period from 1‑4‑1975 to 31‑7‑1980. It is an admitted position that on all earlier occasions the respondent used to issue receipts for the payment of rent received by him. The burden of proving that the rent for the disputed period was paid by appellant, in these circumstances, lay on the appellant. This plea of the appellant cannot be accepted as firstly the two witnesses did not support him in this regard. Secondly the attorney of the appellant admitted in his cross examination that the respondent issued rent receipts to other tenants upto March 1982. The appellant in support of the plea had placed reliance on the entries made in note book. This plea cannot be accepted firstly the appellant was out of Pakistan. Secondly the entries were not proved in accordance with law. As a result of the above discussion I dismiss the appeal and affirm the order of the Controller. I direct the appellant to hand over vacant and peaceful possession of the premises within four months from today subject to the condition that he will continue to deposit monthly rent as ordered by the Controller and in case of default, the writ of possession will be issued without notice. The parties shall bear their own costs. AA./M‑1136/K Appeal dismissed.