1992 PLP 335 (MLD)

‑‑‑‑Initial burden to prove that rent receipt was being issued to tenant was on landlord and that burden would be discharged by landlord by stating in his affidavit that rent was not paid to him by tenant and that he was issuing such receipts whenever rent was paid to him by tenant. (c) Sindh Rented Premises Ordinance (XV1I of 1979)‑‑ ‑‑‑‑S. 15(2)(iii)(a)‑‑‑Subletting‑‑‑Landlord filed his affidavit to the effect that tenant had sublet premises in dispute‑‑‑Tenant having not denied that fact in his affidavit‑in‑evidence, finding of Rent Controller on point of subletting was not open to any interference. Syed Javed Iqbal for Appellant. Nemo for Respondent. Date of hearing: 15th December, 1991 These two First Rent Appeals are directed against the judgments of IIIrd Senior Civil Judge and Rent Controller, Karachi, Central, dated 14‑10‑1991, whereby she directed the appellant to vacate the shop in question and hand over the possession to the respondent within sixty days.

2. The appellant is tenant of the respondent in Shop No.4, which is situated in Quarter No.3/530, Liaquatabad, Karachi @ Rs.100 per month. The respondent filed ejectment application against the appellant on the ground that he is defaulter in payment of rent from September, 1982. Besides this he also did not pay the electricity charges. The respondent further alleged that the appellant had damaged the shop by using fire‑heater for cooking as professional `Bawarchi', and that he had sublet the premises to one Kallan. Additionally, it was pleaded that the respondent required the shop for his personal bona fide use.

3. The application was resisted by the appellant. He has alleged that he was paying rent [ Rs.120 per month. He has alleged that the respondent was not issuing any receipt to him. He demanded receipt for the first time in November, '1985. On the refusal of the respondent to issue receipt he started to send the same by money order. The money order was also refused. Hence he started depositing the same with the Controller in 'M..R.C. No.190/1986). He denied to have caused damage to the shop in question and alleged that he was cooking on footpath. He denied that he had sublet the shop to one Kallan. He has alleged that Kallan is his younger brother and helps him in cooking food. He has also denied that the shop is required by the respondent for his bona fide personal use. The learned Controller took up issues of default in payment of rent, damaged to the shop, subletting and requirement of the shop for the bona fide personal use. On the appraisal of the evidence led by the parties on the issues, the learned Controller came to the conclusion that the appellant had defaulted in payment of rent, and that he had sublet the shop to one Kallan, and that the respondent required the shop for his personal bona fide use. I have heard Mr. Syed Javed Iqbal Advocate for the appellant. The respondent had alleged that the appellant has not paid any rent, whatsoever, w.e.f. September, 1982 till the date of filing of the ejectment application, i.e. 15‑9‑1984. He also did not pay the rent even thereafter. He had alleged that he was regularly issuing receipts to the appellant, whenever, he used to pay him rent. No doubt, the initial burden to prove that the receipt was being issued was on the landlord. He has discharged his burden by stating in his affidavit that the rent was not paid, and that he was issuing such receipts whenever the rent was paid to him. In such a situation the burden was shifted upon the appellant to prove that he paid the rent, by producing such receipts. The appellant has not produced any receipt, whatsoever, for that period. The appellant has set up a defence that the respondent filed this ejectment application because when the rent of November, 1985 was tendered by him to respondent's son he insisted upon a receipt, and on his refusal to give the same, he has started sending the rent by money order, and on the refusal of the respondent to accept the money, he started depositing the rent with the Controller. This defence on the face of it is unbelievable, because the ejectment application has been filed in September, 1984. If the appellant's plea was bona fide then he would have sent the money order on a date before or immediately after September, 1984.

4. I am, therefore, satisfied that finding of the learned Controller as to the default in payment of rent is unexceptionable. Similarly, the finding of the Controller on the point of subletting is not open to interference, because whereas the respondent has filed affidavit to say that the appellant has sublet the premises to Kallan without his permission. The appellant has not denied the same in his affidavit‑in‑evidence. The issue as to the requirement of the shop for the bona fide personal use of the respondent has also being rightly decided in his favour on the basis of evidence led by means of affidavit and on the respondent's successfully withstanding the test of the cross‑examination. I, therefore, do not rind any merit in these appeals, and dismiss the same in limine. However, as a matter of grace, I allow another sixty days time to the appellant to vacate the shop. In case, he does not vacate the shop on or before 15‑2‑1992, the Controller may eject him without any notice. H.B.T./A‑1130/K Appeal dismissed.