1989 PLP 3571 (MLD)

Rehman Memon for Respondent. Dates of hearing: 16th and 17th May, 1989. Mr. Jamil Rajper holding brief for Mr. Azizur Rehman Memon, Advocate for the appellant requested for adjournment. The request is vehemently opposed by Mr. Abdul Hameed Khan, the learned counsel for the respondent. Since the matter is part heard and was adjourned yesterday at the request of Mr. Azizur Rehman Memon with the observation that iii case he is not able to attend the Court or proceed with the case, he shall make alternate arrangement and that no further adjournment will be granted. The parties are litigating since last 15 years, the request for adjournment is rejected. Mr. Abdul Hameed Khan, Advocate for the appellant has already concluded his arguments. I have examined the record of the trial Court and the present appeal and I proceed to decide the matter. This appeal arises from the orders passed by the IVth Senior Civil Judge & Rent Controller, Hyderabad dismissing the Rent Application No. 268 of 1974, filed by the present appellant against the respondent for ejectment on the grounds of requirement for personal use and default in payment of rent. Briefly the facts are that the appellant had purchased the shop No. E/1995 situated in Fakir-Jo-Pir, Hyderabad, hereinafter referred to as the shop in dispute, for valuable consideration as he had been working in private service of various persons for about last 10 years. It is also contended that the father of the appellant who was also an earning member of the family, after performing the Holy Pilgrimage, was leading retired life. The appellant after purchase of the shop in dispute first served the respondent with notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance on 16-3-1974 which was then applicable. This notice was replied to by the respondent on 8-4-1974. Thereafter another notice was sent by the appellant to the respondent on 16-5-1974 requiring him to vacate the shop in dispute and hand over the same to the appellant on 1-7-1974 as the same was required by him for his bona fide personal use. The respondent neither paid the arrears of rent nor vacated the shop in dispute but instead filed RA. 131/74 before the Rent Controller for permission to deposit the rent in Court. The appellant therefore filed application for ejectment on the said 2 grounds. The respondent contested and filed the written statement. His case is that the appellant and his brother Rashid are carrying on the business of Milk & Curd Selling alongwith their father on their shop and that the appellant does not require the shop in dispute for his personal use and also that they own other shops in the locality. The ground of default is also denied. The appellant examined himself and P.W. Mohammad Mustakim while the respondent examined himself and then filed his further affidavit and also examined one witness namely Abdullah. The learned Rent Controller after hearing the Advocates of the parties was pleased to dismiss the rent application and there from the appellant, filed the present appeal. I have heard Mr. Abdul Hameed Khan for the appellant and Mr. Azizur Rehman for the respondent had also made submission on 16-5-1989 with regard to payment of rent through money orders and-then the case was adjourned for today when adjournment was sought on his behalf and the same was rejected as stated above. Mr. Abdul Hameed Khan has submitted that the learned Rent Controller has misread the evidence of the appellant who has in very clear terms stated that this is the only shop he owns and he has not other property in Hyderabad. He has also stated that he wants to start his business in the shop in question. The appellants witness Mohammad Mustakeem has stated that appellant was in service at his shop and was paid Rs. 300 P.M. and that he has no other property at Hyderabad except the shop in question. This evidence has not been shattered in cross-examination nor the respondent has produced any evidence to prove that the appellant owned any other shop in the locality. The fact that the appellant worked at the shop of Mohammad Mustakeem at Rs. 300 P.M. cannot be treated as a bar to prevent him from starting his own business. The appellant in these circumstances is certainly at liberty to start his own business in the shop owned by him and can seek the ejectment of tenant for that reason. The Rent Controller has placed emphasis on the admitted fact that the appellant is the Vice-President of the Hyderabad Milk Sellers Association. This fact has been considered by him as one of the factors to decide this issue against the appellant what the Rent Controller has not taken into consideration is that such offices are usually honorary offices which are neither full time jobs nor carry any monetary remuneration. There is no evidence on the record to this effect. Mr. Abdul Hameed Khan has also referred me to the evidence of Abdullah the witness examined by the opponent. His affidavit is Ex. 78 in the R-& P of the trial Court. In the second last line of his cross-examination this witness Abdullah states: "It is correct to suggest that applicant requires the disputed shop for his personal bona fide need." Mr. Abdul Hameed Khan has placed reliance in the case of Mohammad Siddiq v. Muhammad Sharif (1981 SCMR 784). In this case it has been held:-- "Additionally, the respondent has proved that he does not have any other shop and that he wants to run his own business in the shop leased to the petitioner. Therefore, on the law declared by this Court on this ground alone the petitioner is liable to be evicted and for the reasons given in the judgment under appeal, the petitioner's reliance on the principle of res judicata is totally misconceived:" From the above discussion 1 am of the view that the appellant/landlord has established that he required the shop in dispute for his personal need. Taking up the second point with regard to the default in payment of rent, Mr. Abdul Hameed Khan, learned counsel for the appellant has pointed out that admittedly the rate of rent is Rs. 40 per month which fact is supported by the letter of respondent dated 8-4-1974 sent to the appellant in reply to his notice of 16-3-1974. In the above letter of 8-4-1974 respondent states Chat he had sent the rent amounting to Rs. 40 by money order but there is nothing on record to support the above contention. The case of respondent is that he first sent the rent through money order and then on refusal of appellant, the rent was deposited in the Court in R.A. No:.131/74. The respondent has not produced the money order coupons before the Rent Controller to support the above contention of his. However at the instance of the respondent the R & P of R. A. 131/74 was called for. I have examined the same. It reveals that on 22-7-1974 learned VIIth Extra Joint Civil Judge/Rent Controller had passed the orders whereby the respondent was allowed to deposit the arrears of rent at his own risk and without prejudice to the rights of any party in the matter and thereafter the rent was deposited in Court on 23-7-1974 for the period commencing from the month of April, 1974. This R & P contains 3 money order coupons, the 1st one is dated 8-4-1974 which specifically mentions that rent of April, 1974 is remitted. The second one dated 6-5-1974 contains the endorsement that rent for April and May, 1974 is remitted while the third coupon contains the endorsement that rent for April to June, 1974 is remitted. The 1st deposit of rent in Court made on 23-7-1974 is for Rs. 120 only which by any stretch of imagination will cover the period April to June, 1974. Mr. Abdul Hameed Khan-Advocate for appellant has also referred to the said dates and has submitted that from this it is clear that the rent for the month of March 1974 is still not paid. He has pointed out that the notice a/s. 13-A was given to the respondent on 16-3-1974 and that the rent for March 1974 becomes due on 31-3-1974 which is payable before 15th of following month. He has further submitted that it is not the case of the respondent that the rent for the month of March 1.974 was paid in advance to the previous landlords. From this he has contended that the respondent was in default of payment of rent for March 1974 at the time the rent application was filed by the applicant and he could not escape the consequences of this default by depositing the rent in Court from April, 1974. In reply to the above contention of the appellant, Mr. Azizur Rehman Memon the learned counsel for the respondent submitted that it was due to sublime human error that rent for March 1974 could not be paid. I cannot agree with this contention of the learned counsel for respondent as this was not the plea taken by him before the Rent Controller. It may also be observed that none of the said 3 money order coupons contain any endorsement of refusal nor any witness from postal department has been examined to substantiate the same. The Rent Controller in his order has observed that burden to prove that respondent is defaulter in payment of rent is on the appellant-landlord because he has asserted so. I am afraid 'this is erroneous view. It is established principle of law that initially the burden is 'on the tenant to prove that he has paid the rent. From the above discussion I am of the view that the respondent has committed willful default in payment of rent. For the above reasons I allow this appeal answering both the issues in favour of the appellant and direct the respondent to handover the vacant possession of the shop in dispute to the appellant. The respondent is allowed 90 days time to vacate the shop. However there will be no order as to costs. M.Y.H./J-71/K Appeal allowed,