ALLAUDDIN Versus GHAZANFAR ALI

This appeal is directed against an order, dated 22‑9‑1981 passed by the learned IXth Senior Civil Judge/Rent Controller, Karachi in Rent Case No. 3907 of 1979, declining the appellant's application for ejectment which was filed on a number of grounds including default for the period commencing from December 1977, personal requirement and sub‑letting. The above application was resisted by the present respondent. The learned Rent Controller on the basis of the pleadings of the parties framed the following four issues:‑

(a)Whether the opponent No.l has sub‑let the case premises to the opponent?

(b) Whether the opponent has committed wilful default in the payment of rent w.e.f. December 1977?

(c) Whether the case premises is required by the applicant for his personal bona fide use in good faith?

(d) What should the order be?

The appellant examined himself Exh.3 and two‑ witnesses, namely, Muhammad Umer and Abdul Waheed Exhs. 4 and 5. On other hand respondent examined himself and one Sabir Exh.7. The learned Rent Controller after hearing the parties, dismissed the above application. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. S.D. Rana, learned counsel for the appellant has urged as follows:‑

(1) That the default stood proved as the respondent had not produced either the money order, counterfoils or any record from the Miscellaneous Rent Case No. 1656 of 1978 in which the respondent started depositing.

(ii) That the personal requirement was also proved as it was admitted by the respondent that the appellant had started a new business of writing. sign board, in addition to the making plastic name plates.

(iii)That the sub‑letting was also proved as one of the respondents was running the business.

On the other hand Mr. Qutubuddin Ahmed, learned counsel for the respondent has submitted as under:‑

(1) That there was no specific allegation of the appellant as to default on the contrary he admitted in his cross‑examination that he had come to know that respondent No.l had been depositing rent in Miscellaneous Rent Case and he had not applied for the withdrawal of the same.

(ii) That there is no material on record on the basis of which bona fide personal requirement can be said to have been proved.

(iii) That there is no material on record to prove sub‑letting.

3. Adverting to the first submission that there has been default on the part of the respondent. It may be observed that the case of the appellant was that respondent No.l has not paid rent since December 1977. The above ejectment application was filed in 1979. The case of the respondent No.l was that he had tendered the rent through money order and thereafter he started depositing rent in Miscellaneous Rent Case No. 1656 of 1978. It may be observed that on the question of default the initial burden is on the landlord which he discharges by making a statement on oath that he has not received the rent of the particular period, then the burden is shifted on the tenant to prove the tender or payment, which he can do by either producing the rent receipts or producing counterfoil of the more order or receipts for the deposit of the rent in the Miscellaneous Rent Case. in the present case the respondent No.l has not produce the counterfoil of the money order nor the receipts of depositing o rent in the above Miscellaneous Rent Case. It is, therefore, no known as to whether the rent was tendered by respondent No. through money order within the statutory period or after the expire of the same and similarly there is nothing on record to indicate as to when he started depositing the rent. I would, therefore, reverse the finding of the learned Rent Controller on the above question an would remand the case to the learned Rent Controller with the direction to allow the respondent No.l to produce the evidence on the above question. The appellant shall also be entitled to produce evidence in rebuttal.

4.As regards the personal requirement I am inclined to concur with the finding of the learned Rent Controller as merely the starting of the business of writing of sign boards would not necessarily lead to the requirement of another shop. Admittedly the appellant has the adjacent shop in his possession and he has not produced on record any material to show that the new alleged business started by him needed additional space. I would, therefore, concur with the finding of the learned Rent Controller on the above question.

5.Similarly the finding on the question of sub‑letting appears t be in accordance with law. As admittedly respondent No.2 is the nephew of respondent No.l and has been sitting in the shop for number of years. It has not been proved that respondent No.l had severed his connections with the shop while he had gone to Duba for learning Arabic. I would, therefore, concur with the finding o the learned Rent Controller on the above question.

6. For the aforesaid reason the appeal is allowed on the question of default only but I would remand the case to the learned Rent Controller to decide the same in accordance with law. However, there will be no order as to costs.

H.B.T./A‑296/K Order accordingly.