1989 PLP 1994 (CLC)

This appeal is directed against the order of the IIIrd Senior Civil Judge and Rent Controller, West Karachi, whereby the application filed by the present appellant for the ejectment of the respondent has been dismissed. The present appellant claiming to be the landlord of the premises in dispute filed the said application for ejectment on the ground of default in payment of rent since March, 1985 at the rate of Rs.1,200 per month and also for non‑payment of water and conservancy charges for the year 1984‑85 amounting to Rs.1,

300. The respondent fled his written statement disputing the rate of rent. The case of the respondent is that the rate of rent is Rs.700 per month and that he has paid the same up to June 1986, whereafter the appellant did not accept the rent and, therefore, he has been depositing the rent m the Court since July 1986 at the rate of Rs.700 per month in Rent Case No.925/1986. The respondent also contended that at the time of his induction as tenant he had deposited a sum of Rs.8,0()0 as a security deposit with the appellant. It is further contended by him that the appellant never issued the rent receipts nor the receipt for the said security deposit. The appellant examined his son and attorney namely Abdul Rab and produced four dishonoured cheques, three for Rs.1,200 each and one fur Rs.1,3(

0. He has also produced notices for demand of rent issued to the respondent. As against this, the respondent examined himself and one Abdul Rashid. He had also got the affidavit of his brother Humayoon Malik fled but he could not be subjected to cross‑examination. The Rent Controller framed three issues as under:‑ (1) Whether at the time of commencement of tenancy, the opponent paid Rs.8,000 as security deposit. If so, its effect? (2) What is the agreed rate of rent? (3) Whether the opponent defaulted in payment of rent as has been alleged?" All the issues were decided against the appellant and his application for ejectment was dismissed. I have heard the learned counsel for the parties. Mr. Harz Abdul Baqi, learned Advocate for the appellant has argued that the Rent Controller has erred in placing the burden of proof of the three issues on the appellant. His contention with regard to security deposit is that the case of the respondent being that he had deposited the said amount of security, the burden to prove the same would be on respondent. He has referred to the affidavit of the respondent and his cross‑examination wherein the respondent has stated that he had paid the said security deposit of Rs.8,000 in presence of Abbas Jaffery, a friend of his and that this amount was paid in January, 1974. From this the learned counsel has argued that it was incumbent upon the respondent to have examined the said Abbas Jaffery, in absence of which the said issues cannot be answered in favour of the respondent. He has also submitted that Abdul Rab the Attorney of the appellant has denied that his father had received the said amount. Mr. Abdul Rehman the Advocate for the respondent repelling the above arguments has submitted that in the first instance no question has been put to the respondent in cross‑examination denying the payment of the said security deposit. All that has been suggested to respondent in cross‑examination is as to in whose presence and when the said payment was made but no categorical denial was put to respondent. He has further submitted that it was necessary for the appellant himself to have stepped into the witness‑box and to deny the receipt of the said security deposit. He has further argued that the appellant has deliberately avoided to examine himself to escape the rigor of cross‑examination, obviously for the reasons that he may not have been able to withstand the same. Mr. Abdul Rehman has further submitted that in such case the inference could be drawn against him. The record shows that admittedly the attorney of the appellant who is also his son has stated that his father was ill but no medical certificate or other evidence has been produced in support of the above contention. Since it is the case of the respondent that the said amount was paid to appellant himself, the non‑appearance of the appellant in witness‑box to deny the same would give rise to the inference against the appellant who had inducted the respondent as tenant , in the premises in dispute. Reliance has been placed on the case of Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954 wherein it was held:‑ "In respect of these two months there is a statement on oath of the appellant, that he had paid rents for these two months to the respondent upto 31st March 1975 and thereafter respondent refused to accept rent for the month of April, 1975, and as such he moved Miscellaneous Application No.934/1975 for deposit of rent in the Court of the Rent Controller. The appellant further in his statement on oath stated that he had paid Rs.500 as security deposit to the respondent, at the time he was inducted as tenant in the premises in question. These two averments of the appellant have been denied by P.W.1 Abdul Waheed, respondent's son, but in view of this witness's admission in cross‑examination, that he started dealing with the property in question since April, 1976, only when he was appointed as an Attorney, the said denial has no force, in the absence of respondent having come into the witness‑box to deny these assertions, which were made also in the written statement filed by the appellant." In view of the above facts I am inclined to uphold the findings of the learned Rent Controller on this issue, and hold that the said amount of Rs.8,000 was paid as security deposit which is liable to adjustment towards the future rent. I As it is not the case of the appellant that the said amount is not so adjustable. Mr. Hafiz Abdul Baqi has in this behalf placed reliance on the case of Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228 to argue that the security deposit' could only be adjusted against the outstanding rent if so specified in the agreement and that in the present case there was no such stipulation. With due respect, the facts of the above‑cited case are different inasmuch as in the said case the rent was payable in advance at specified time and there was condition provided that tenant shall not cause loss or damage to the property or to the landlord. Whereas in the present case no such terms and conditions have been proved by the appellant. Dealing with the issue of the rate of rent, Mr. Hafiz Abdul Baqi learned counsel for the appellant has placed reliance on the three cheques produced in evidence by the attorney of the appellant, these cheques are issued on 15‑2‑1984, G‑8‑1984 and 10‑11‑1984. Each of these cheques is for Rs.1,

200. From, this the learned counsel has argued that they are for the rent of every month and show that the same was Rs.1,

200. It is also admitted that these cheques are signed by Humayoon Malik the brother of the present respondent. The learned counsel for the appellant has then referred to the cross‑examination of Abdul Rasheed who in the end of his cross‑examination has said, "his elder brother Hymayoon Malik used to bear the expenses of the house of opponent. Said Hymayoon Malik used to live with opponent in demised premises. Said Mr. Hamayoon shifted from demised premises in June 1985:" From this the Advocate for the appellant has endeavored to show that Humayoon Malik was also living in the said house and he used to pay the rent. This itself would be inconsistent with the case of the appellant and would show that if it be so then the present respondent was not his tenant which would affect the very maintainability of the rent case. As against this the case of the present respondent is that these cheques were issued by his brother against Marble taken by him from the appellant and for a godown which was rented out to his brother. This fact he has stated in paragraph 17 of his affidavit‑in‑evidence and also in his written statement. It is further the contention of the learned counsel for the respondent that no question has been put to the respondent in cross‑examination denying his above contention. As against this the learned counsel for the respondent has referred to the cross‑examination of the attorney of the appellant wherein he has specifically admitted that initially the rate of rent was Rs.700 which was then enhanced to Rs.1,OtX) and subsequently to Rs.1,200 but no proof of such enhancement has been produced on record. It is also argued by the learned counsel for the respondent that the appellant's attorney in his cross‑examination admitted that he used to prepare the receipt but the respondent did not come to collect the same. These receipts have not been produced in the case. The non‑production of such receipts would give rise to inference against the appellant. Now as things stand in the present case the rate of Rs.700 per month as rent at one stage stands admitted by both the parties. It is case of the appellant that rent was thereafter enhanced to Rs.1,000 and then Rs.1,200 per month and that the said three cheques were actually the payment towards rent. In such circumstances it would be for the appellant to prove his contention through cogent evidence but he has not even denied that the said cheques arc paid to him by the respondent's brother in connection with Marble business. He has also not led any evidence to corroborate his contention of enhancement of rent. From the above discussion I am of the view that the Rent Controller has correctly decided this issue holding the rate of rent to be Rs.700, per month. The last contention of the learned counsel is that the burden to prove the payment of rent is on respondent. He has placed reliance on the case of Allah Din v. Habib PLD 1982 SC

465. There is no doubt about the legal proposition as laid down in the abovesaid case of the Supreme Court but the facts in the present case are different. In the present case admittedly the appellant prepared the f receipts but the same were not taken by the respondent. It was, therefore, j necessary for the appellant to have produced those receipts to support his above contention but the same were not produced. Mr. Abdul Rehman learned counsel has placed reliance on the case of Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741 wherein it was held:‑‑ Reference is invited to subsection (2) of section 10 of the Ordinance which makes it compulsory for the landlord to acknowledge the receipt of rent in writing. According to subsection (4) of the same section such written acknowledgement shall have to be produced and accepted in proof of the payment of the rent. 1n the instant case it is an admitted position that the respondent/landlord did not ever issue written acknowledgement for receipt of the rent from the tenant and as such no rent receipts have been produced in this case. Since the respondent has not cared to issue rent receipts in compliance with the mandatory requirement of law, he cannot insist upon the appellant to prove the payment by normal practice of producing rent receipts. In that case the oral statement of the appellant which is on oath has to be accepted unless it is shown to be untrustworthy and unreliable. There is no material on record casting any shadow of doubt on his testimony." Moreover the above conduct of the appellant's attorney renders him untrustworthy and his evidence cannot be relied upon. From the above discussion I do not find any reason to interfere with the q findings of the learned trial Court. The present appeal is, therefore, dismissed i with no order as to costs. H.B.T./A‑593/K Appeal dismissed.