1. ' HABIB-UR-RAHMAN SHAIKH, J.---Through this petition, the petitioner Kashif Anwar has prayed as under:- "That the judgment of the learned Appellate Court and the order of learned Rent Controller are ab initio illegal and liable to be set aside . "
2. ' Brief facts of the case are that one Rauf Alam son of Jan Alam being landlord let out Shop No,2.
3. Situated on ground floor of Maaji Hospital Latifabad. Unit No,8. Hyderabad, to the petitioner about 20 years back and usually on expiry of tenancy period new tenancy agreement used to be executed and lastly Rent agreement was executed on 16-10-2003 whereby monthly rent of Rs,4,000 per month was fixed. The said agreement was extendable. In the suit shop the petitioner is running Medical Store under the name and Style of Hamdard Medical Store.
4. ' Apart from other conditions there were conditions in the tenancy agreement that the tenant shall pay a monthly rent at the agreed rate in advance by 5th of every calendar month and will also pay the electricity bill and other Municipal taxes etc. Himself. It was further agreed that on non- payment of rent, electric charges or both for continuous two months will make the tenant liable for ejectment from the said premises. After the above agreement no other agreement was executed.
5. ' Subsequently since the shop was required to the hospital and in addition the tenant had committed default in payment of rent as well as payment of electricity bills therefore, the landlord issued legal notice to the applicant/petitioner" for vacating the shop, but he did not vacate, therefore, ejectment application was filed on the ground of personal bona fide use and default. The landlord required the shop for use of Maaji Hospital and further alleged that the petitioner has not only defaulted in payment of rent from June, 2004 but also not paid electricity charges from May, 2004.
6. ' The petitioner has taken defence that the landlord filed application on personal bona fide use but in fact he did not require the said premises for his personal bona fide use, in fact the premises requires for Maaji Hospital so the rent application is not maintainable at law and further the petitioner is not defaulter in payment of rent as well as electricity charges as the same were being deducted from the payment of medicines which frequently the hospital used to purchase from the store of the petitioner and since 2004 the Management of Hospital did not make payment of medicines. The Management of Maaji Hospital has been issued certificates of income tax deduction to the petitioner every year at the time of closing the financial year 2003-2004.
7. ' The Rent Controller/Senior Civil Judge allowed the rent/ejectment application of the respondent No,3/landlord and directed the opponent/petitioner to hand over vacant possession of the case premises within 60 days of the impugned order dated 31-7-2009. Being aggrieved of the above decision, the tenant filed F.R.A. No, 83 of 2009 before District Judge Hyderabad in which he pleaded that Rauf Alam is landlord and but the owner of shop in question is of Maaji Hospital, and appellant is tenant of landlord. The appellant used to give medicines to the Hospital and from the payment of medicines, Monthly rent was being adjusted. Such certificates had been issued to the appellant.
8. Subsequently the tenant urged after 2003-2004 the hospital did not issue such certificates. The landlord remained silent regarding collection of rent. The landlord has not come in witness box but, the attorney appeared. The impugned order is bad in law, so it required to be set aside.
9. ' That the Appellate Court also finding no merit in the appeal dismissed the same maintaining the order of trial Court and directed to vacate the shop in question within 60 days from the order dated 27-5-2011, hence this petition against the said impugned order.
10. ' Learned counsel for petitioner argued that the petitioner is tenant of Rauf Alam vide last agreement dated 16-10-2003 but in fact Maaji Hospital is the owner of shop in question. He further argued that he is not defaulter as he used to supply medicines to the Management of Maaji Hospital and at the time end of month the rent amount as well as electricity charges were being adjusted from the amount of medicines, such certificates were issued by the management in favour of petitioner. Learned counsel = during arguments stated that at the request of landlord he paid the monthly rent and electricity charges to the management of Maaji Hospital and he was surprised when legal notice dated 21-6-2004 was received by petitioner in which it was alleged that the landlord is not intending to extend the tenancy agreement further and the shop is required for use of Maaji Hospital and further the petitioner was requested to vacate the shop. Learned counsel lastly argued that the orders of both the courts below are illegal and liable to be set aside as both the courts below have not considered the legal aspect of the case and not decided the points of maintainability of the application.
11. ' On the other hand learned counsel for respondents argued that both the courts below have decided the matter according to law, the petitioner is defaulter since June 2004 in payment of monthly rent and the electricity charges frotn May, 2004. In support of his contentions he has relied upon the cases reported in NLR 1994 SC 49(sic); 1997 CLC 205(c), PLD 1986 SC 154, 1986 CLC 165, 1998 SCM R 2092 and 2009 M LD 367.
12. ' Heard learned counsel for both the parties and perused the record.
13. ' The petitioner himself admits that Rauf Alam is landlord and he executed the rent agreement with him and lastly an agreement of tenancy had been executed on 16-10-2003, in which it is clearly mentioned that Rauf Alam is the landlord and further the tenancy period is extendable. It has come on record that during evidence the attorney of landlord has proved that the case premises required for personal bona fide use of hospital for the plan room of Dialysis Center, such requirement of respondent is genuine for his personal bona fide use.
14. ' The perusal of written statement transpires the petitioner/tenant stated that the Management of Maaji Hospital used to purchase the medicines from him and deducted the payment of rent and electricity charges from the payment of purchase of medicines upto 2004 and his remaining payment is still outstanding against the management, but during evidence he has not produced any proof thereof.
15. ' It also reveals from record that the petitioner sent payment of rent through postal money order dated 10-6-2006 of Rs,10,000 and 9000 respectively in the name of landlord Rauf Alam and under the direction of the trial Court vide .Order dated 14-4-2006 to deposit the arrears of electricity dues amounting to Rs,5,624 from May to October, 2004 and also deposited electricity charges from 31- 11-2004 to 30-9-2006 as per receipts, it appears that the petitioner has committed wilful default in payment of electricity charges from June, 2004 to October, 2004 and onwards, in fact in his affidavit in evidence he denied about the default in payment of rent etc. In case of Sarfraz A. Malik (supra) this Court held that non-payment of rent being a negative fact if the landlord appeared and stated on oath that he had not received the rent for a certain period, it would be sufficient to discharge the burden that lay under the law upon him and would then shift to the tenant to prove affirmatively that he paid or tendered the rent, only exception, to such rule could be where the landlord admitted non-issuance of rent receipts. Proposition that in cases where the tenant denied issuance of receipts by the landlord, then the burden would be on the landlord to establish that such receipt were issued, did not appeal to mind as it would amount to shifting the burden of tenant upon the landlord for the reason that the fact regarding issuance of receipt could not be proved by landlord, unless the landlord obtain an acknowledgement from the tenant at the time of issuance of receipt or to produce witnesses to dislodge the claim of tenant which would not only amount to placing the landlord in a disadvantageous position but would give an unwarranted edge to the tenant upon the landlord, totally against the spirit of law which would further encourage the tenant to simply deny issuance of rent receipts in all cases of default in order to take advantage by shifting of burden of proof upon the landlord.
16. ' However, learned counsel for petitioner totally failed to point out as to what factual controversies are involved in the instant petition. Even otherwise it has been constantly held by this court as well as the Apex Court that this court while exercising writ jurisdiction ordinary does not undertake to reappraise the evidence to disturb the findings of facts, but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of power, reference can be made to the judgment of the Apex Court in the case of Muhammad Lehrasib Khan v. Mst. Hakimun Nisa (2001 SCM R 338) beside the case of Safeer Travel (Pvt.) Ltd. v.
17. Muhammad Khalid Shafi (PLD 2007 SC 504).
18. These are the reasons for short order dated 13-8-2012 whereby this petition is dismissed.