MURSALEEN vs GHULAM SARWAR Through Legal Heirs And Another

ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 13.10-1986.

2. The facts, briefly stated, are that the appellant is a tenant of respondent No.1 in a shop situate in Suraj Gaanj Bazar, Quetta. The respondent-landlord moved an application on 30-11-1980 for the eviction of the appellant from the shop in question on the grounds namely: (i) default in payment of rent from July, 1980 to October, 1980; (ii) unauthorised subletting, and (iii) bona fide personal requirement of the landlord. The Rent Controller directed the eviction of the appellant on the ground of default and bona fide personal requirement.

3. We have heard the learned counsel for the parties. In Para 2 of the eviction application, the respondent has specifically stated that the appellant has not paid the rent from July 1980 to October, 1980 for four months amounting to Rs.200. In the written statement, the appellant in reply to this para has stated that he had paid the rent for the month of July, 1980 but the applicant did not issue any receipt to him. He has not said anything about the payment of rent for the months of August, September and October, 1980. Thus, the contention of the landlord stood fully proved from the statement of fact given by the appellant in the written statement. Learned counsel for the appellant has submitted that the written statement cannot be treated as substantial piece of evidence. This contention has no force. A question of fact which has been specifically alleged in the ejectment application and not controverted by the appellant need not be proved as facts stood fully established. Even at the trial, the appellant has not led 3 any evidence to substantiate that he had paid the rent from July, 1980 to October, 1980. A.W. Usman Ali, attorney of the landlord was examined on 13-5-1981 and he has stated that the appellant has not paid the rent for the last ten months. So, the averments in the eviction application about the default for the period have been established through the evidence of the attorney. The learned counsel has admitted that the rent receipts had been regularly issued by the landlord. There is nothing on record to indicate that in the past the rent was received by the landlord without issuing any rent receipt. Once the landlord has discharged the onus that the tenant has not paid or tendered rent then the tenant is duty bound to disprove this fact through cogent and convincing evidence. In this case, the appellant has absolutely failed to rebut the allegation of the respondent about the default in the payment of rent. The two Courts on proper appraisal of evidence have decided the issue against the appellant.

The default has been proved against the appellant.

4. The respondent in Para 4 of the eviction application has stated that the has retired from service and now the shop in question is required for his bona fide personal use and occupation. The appellant in reply to this para stated that the shop in question is not required for bona fide personal use of the landlord and that the eviction application was filed with a desire to enhance the rent. The two Courts have accepted the plea of the landlord about his personal bona fide requirement. The fact that the landlord has retired from service is not disputed. He has established his bona fide. The appellant 'failed to substantiate his contention of mala fide on the part of the landlord. Generally, a plea is set up about the landlord's demand of enhanced rent. Apart from the fact that this plea has not been accepted by the two Courts, the bona fide of the landlord has been established.

5. Learned counsel for the appellant submitted that during the pendency of the present proceedings, another shop was leased out to another person but the leave was not granted on this ground. Even otherwise, it requires fresh inquiry in the matter. The appellant at this stage cannot be allowed to raise this plea.

6. The learned counsel next submitted that as noted in the Leave Granting Order, the respondent could not run the business on account of mental incapacity. This ground was not taken in the written statement. No evidence was led at the trial of the matter. It was not the case of the appellant at the trial that in view of mental incapacity the landlord could not run the business.

There is also no expert's evidence in support of such plea. We, therefore, see no substance in this contention.

7. Lastly, it has been submitted that the landlord has died after the eviction order was passed in his favour. This fact is immaterial as the decree of eviction could be executed by the heirs of the deceased/landlord.

8. This appeal fails and is dismissed with no order as to costs.