1986 PLP 1961 (CLC)

‑ ‑‑‑Ss. 15(2)(ii) & 21(l)‑‑Default‑ ‑Proof‑‑Evidence on record evidently showed that default was committed by tenant‑‑Statement of landlord that he had not received any rent from tenant for period in dispute had not been disputed in cross‑examination at all‑‑Burden to prove payment of rent to landlord for disputed period was on tenant‑‑Tenant, held, failed to discharge burden‑‑Default proved to be committed by tenant in circumstances.‑‑(Burden of proof ). Niazi A . Khalik for Petitioner. Hussain Adil Khatri for Respondent. Date of hearing: 11th August, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the tenant/ appellant challenging the order of eviction passed by the Rent Controller on the ground of default. The respondent filed ejectment case against the appellant alleging default in payment of rent from 1‑3‑1973 to 28‑2‑1974. He also alleged unauthorized construction in the premises and non‑payment of taxes. The appellant denied the allegations with regard to default, unauthorized construction and non‑payment of taxes and the Rent Controller after recording evidence of the parties only granted the application on the ground of default. In the written statement filed by the appellant before the Controller be alleged in paragraph 3 that he has been paying regularly rent to the applicant Ghulam Abbas and that the rent upto February, 1974 was paid. It was also alleged that although the rent was paid regularly but no rent receipt was issued by the applicant. The respondent appeared himself before the Rent Controller and stated on oath that he was posted in the Pakistan Embassy in Belgrade from 1967 to July, 1973 and from July, 1973 onwards he was posted at Islamabad. He also denied that he ever received any rent of the premises directly from the appellant and he stated that he had appointed his brother Sirajdin as the attorney to look after the premises. This statement of the respondent was not all challenged in the cross -examination. On the contrary it was put in the cross‑examination that he had no contact with the appellant during this period. The respondent also produced his attorney Sirajdin who stated before the Rent Controller that he received rent from the appellant upto February, 1973 and that for all payments received by him he had issued regular rent receipts to him. The attorney of the respondent produced counter‑foils of the receipts issued to the appellant including other tenants of respondent. The appellant in his own evidence stated that he confused the attorney of the respondent as the respondent and he did not know the respondent personally and, therefore, he under that impression mentioned in the written statement that the rent was being paid to the respondent personally when in fact he did not pay the rent to Ghulam Abbas but paid to his attorney Sirajdin. The learned counsel for the appellant contends that this aspect of the case has not been considered by the Rent Controller and that counterfoils of the receipts produced by the respondent's attorney are nothing but forged document to make out a case for default against the appellant. The learned counsel further contended that the statement of the attorney as well as of the respondent was grossly incorrect as they denied possession of the appellant in the premises prior to 1968 when in fact he was in occupation of the premises from 1966. None of the contentions raised by the learned counsel for appellant has any substance. The appellant in his written statement filed before the Rent Controller made a categorical statement that he paid rent to Ghulam Abbas (respondent) personally regularly until February, 1974. It may be mentioned here that the application or eviction was filed to March, 1974 and the written statement is dated 20th May, 1974. The evidence of the attorney of the respondent was recorded b~, the Rent Controller in the case on preliminary issue on 2‑9‑1974 It is, therefore, quite clear that if there was any confusion in the mind of the appellant with regard to the identity of the respondent it should have been clarified on 2‑9‑1974 when the attorney of the respondent appeared in the Court and made a statement on the preliminary issue. The appellant was examined in the case in 1980 and until then neither any effort was made to amend the written statement nor it was brought to the notice of the Rent Controller to clarify the alleged misunderstanding in the mind of the appellant as to the identity of respondent. In these circumstances the statement made by the appellant in his affidavit and the attempt made by the learned counsel for the appellant in argument to show that the appellant was under a misunderstanding as to the identity of respondent has no basis. The respondent's statement that he had not received any rent from the appellant for the period in dispute has not been disputed in cross examination at all and as such it was the burden of the appellant to prove that payment was made to the attorney or to any one also on behalf of the applicant for the disputed period. He has failed to discharge the aforesaid burden and the evidence on record shows that at least from November, 1973 onwards no payment was made to any body in respect of the premises in dispute. The Rent Controller in the circumstances was fully justified in holding that the appellant has committed default in payment of rent from March, 197;3 upto February, 1974. 1, therefore, find no ground to interfere with the order of the Rent Controller. The appeal is accordingly dismissed but I shall make no order as to costs. The appellant is allowed four months time to vacate the premises on the condition that he shall continue to deposit monthly rent with the Rent Controller. The rent lying in .the Court deposited by the appellant may be paid to the respondent. H . B. T. Appeal dismissed.