HASEEB RAZA Versus MUHAMMAD AMIN KHAN

This appeal is directed against the order dated 16‑1‑1991 of the learned Rent Controller, Cantonment Board, Peshawar whereby the appellant was ordered to vacate the disputed shop within 90 days.

2. The facts of the case are that the appellant is the tenant of shop No. 1109, situated in Kali Bari, Tipu Sultan Road, Peshawar Cantonment of which the respondent is the landlord. The relationship between the parties and monthly rent at Rs.250 per mensem is not in dispute. The respondent applied on 29‑12‑1988 to the learned Rent Controller, Peshawar Cantt. for ejectment of the appellant from the disputed shop on the ground of default in payment of rent for a period of two years and bona fide personal requirement of the shop.

3. This application of the respondent was resisted by the appellant in the written statement filed by him wherein the commission of default in payment of rent for two years was disputed on the averment that the appellant "had deposited the arrears of rent on his own application." It was further maintained that the respondent was conducting his business in his own property in Darzi Centre, Peshawar Cantonment under the name and style "Modern Jewellers" and that the respondent's claim to start "Electric Works" business in the disputed shop was frivolous. and was merely for ejectment of the appellant and was thus mala fide.

4. The contest between the parties virtually survived over the following two issues:‑‑

(4) Whether the respondent is a wilful rent defaulter?

(5) Whether the property in dispute is required by the petitioner for his personal need bona fide?

5. On assessing the evidence adduced by the parties, the learned Rent Controller found against the appellant holding that he had committed wilful default in the payment of rent from 1‑10‑1986 to 31‑8‑1988 and further that the landlord's requirement of the disputed shop was bona fide and ordered his ejectment vide his order dated 16‑1‑1991. Feeling aggrieved, the appellant has challenged the above order in this First Appeal.

6. S.Asif Shah, learned counsel for the appellant, has raised before me the following grounds in support of this appeal:‑‑

(i) That on the authority of Najmuddin v. Zamir Ahmad (PLD 1982 Karachi 188) and Inayatullah v. Zahooruddin (1987 SCMR 1313) the learned Rent Controller has erred to record finding against the appellant on default in payment of rent, for, there was abundant evidence on the file that the landlord had been collecting rent in lump sum; and

(ii) that his finding on landlord's bona fide personal requirement of the disputed shop was equally untenable in that the learned Rent Controller has completely ignored the fact that the landlord who is goldsmith by profession and is running one shop in Peshawar City and another in Darzi Centre in Peshawar Cantonment could not possibly contemplate starting "Electric Works" business.

6‑A. Haji Muhammad Zahir Shah, learned counsel for the landlord? respondent, on the other hand, had supported the impugned order of eviction of the appellant from the disputed shop and for the issues placed implicit reliance on (1) Allah Din v. Habib (PLD 1982 SC 465), (2) Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCI`1R 1996), (3) Mst. Mehr‑un‑Nisa v. The Controller of Rents, Hyderabad (1986 CLC 422) and (4) Abdul Razzaq Khan v. Saleem Hidayat and 4 others PLD 1987 Lah. 47.

7. The ratio in the case of Najmuddin relied upon by the appellant's counsel is that if the default under the given circumstances is not wilful then the Rent Controller has ample discretion to decline the order of eviction of the tenant. The circumstances of collecting rent by the landlord in lump sum in Najmuddin's case was not held to be default in payment of monthly rent. In the instant case the burden that the landlord‑respondent used to collect monthly rent in lump sum is not established on the record and, therefore, this case has no bearing on the facts of the appeal in hand. Likewise Inayatullah's case cited by S. Asif Shah, learned counsel for the appellant, is equally not attracted to the case in hand because it is neither urged in the written statement nor asserted in the witness‑box that the landlord in the case before me, had deliberately created difficulties in the way of the appellant by not accepting the rent in the hope that some omission or slip on the part of the tenant may enable him to carve out a ground for his eviction.

8. Now it is settled principle of law duly approved in the authoritative pronouncement of the Supreme Court in Allah Din's case that non‑payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question within the stipulated or statutory period. Applying this principle I find that the onus to prove that the landlord used to receive rent in lump sum raised by the appellant before me is not only far from proved but appears to be an improvement of his defence. In the written statement he has not clarified as to how the landlord is estopped by his conduct to allege default but in the witness‑box, he has stated that he had offered the rent and on respondent's refusal he approached him through a common friend to receive rent but in vain. Even if this plea of the respondent is accepted, still he has not been able to satisfy me as to why it took the period from October, 1986 to August, 1988 to approach the Rent Controller for depositing the arrears of rent particularly when tenancy between the parties was being regulated under section 17 (2) (i) of the Cantonments Rent Restriction Act, 1963. Under this provision of the Act, the tenant is obliged to pay monthly rent within sixty days following the period for which rent was due. There is no convincing, evidence on the record to show that the appellant had either tendered or actually paid the arrears of rent within the statutory period of sixty days. The Rent Controller was, therefore, not erroneous in holding him a defaulter of rent within the contemplation of section 17 (2) (i) of the Act. I am also convinced that in the facts and circumstances of this case the learned Rent Controller had exercised his discretion in favour of the landlord which is not shown to be either arbitrary or on a wrong conception of law.

9. The defence of the appellant against the landlord's plea of his requirement of the shop was two fold: firstly that the landlord being a goldsmith by profession could not competently run business of electric shop and secondly, that he could not simultaneously run his two businesses of gold?smithery and one business of electric shop. In so far as his second business of goldsmithery is concerned, the brothers are running it. The appellant has also admitted in his testimony before the Rent Controller and rightly so that a person can simultaneously run many businesses. This being so, it cannot be possibly said that the landlord was not capable of running an electric shop. It is a common experience that expert hands are employed to run a certain business. Viewed in this context it cannot be possibly said that the plea of requirement of the shop raised by the landlord is not bona fide on this score. Reference may in this context be made to the case of Mst. Mehrun-Nisa cited by the learned counsel for the landlord wherein the august Supreme Court held as follows:‑‑

"The assertion or claim on oath by the husband of the petitioner that she required the shop in question for her personal use, should be accepted by the Controller as bona fide if such claim or assertion is consistent with her averments in the application and not shaken in ' cross‑examination or disproved in rebuttal."

9‑A. Applying this principle to the facts of the present case, I am also inclined to hold that the assertion on oath of the landlord in his application that he bona fide required the shop for electric business besides being consistent with the averments in his application, has neither been shaken in his lengthy cross‑examination nor is disproved in rebuttal. Besides, if the landlord is later on proved to have perjured himself on this score the remedy under the law may be pursued against him.

10. There is thus no merit in this appeal which is dismissed with costs.

H.B.T./1318/P ???????????????????????????????????????????????????????????????????????? Appeal dismissed.