1. ' The respondent filed an ejectment application against the appellant on the ground that the disputed premises was let out to appellant on a monthly rent of Rs,300 excluding electricity charges but he has failed to pay electricity charges at all and is irregular in payment of rent.
2. Another ground alleged was that the premises is required bona fide for the use and occupation of her husband who is jobless. It was alleged that he has weak and defective eyesight and is not in a condition to run his business outside his house. The appellant filed his written statement in which it was asserted that electricity charges have been paid regularly up to 5-4-1982 according to meter reading as demanded by Pervez the son of the respondent. So far rent is concerned it was averred that no default has been committed and rent up to June, 1980 has been received by the respondent. A photo copy of the receipt was filed which was later exhibited as Exh.0/2 but this receipt relates to the payment of rent for May and June, 1979. The appellant also denied the allegations regarding bona fide use and occupation of the premises as well as the charges of subletting. The learned Controller held that the default in payment of rent and electricity charges has been committed by the appellant and also that the premises is bona fide required by the respondent.
3. ' Taking the plea of bona fide requirement first it may be observed that the need of the respondent's husband has been set out in para. 6 of the application where it has been stated that he is sitting in his house jobless and his one eyesight is defective and the other one is also not proper and in this physical condition he is not able to run business outside his house. The plea raised by the respondent is that due to defective eyesight and ill-health the respondent's husband is unable to go outside his house to carry on his business and he requires the shop for running business. These allegations have been denied by the appellant. In their affidavit of evidence the respondent and her husband Mushtaq Ahmad have repeated the same facts. Mushtaq stated that he was running a shop at Mahmoodabad and is sitting in house jobless however in cross- examination he has contradicted this statement when he stated that he is running a shop at Mahmoodabad and has been asked by the landlord to vacate that shop and a notice has also been issued. This fact has been stated by the appellant also. The appellant's plea that her husband is sitting jobless has not been established. The fact that his landlord has served a notice calling upon him to vacate the Mahmoodabad shop seems to be another fabrication as no notice has been produced nor the landlord has been examined. She has not even given the particulars of the shop where her husband is running his business. It, therefore, seems that the appellant has concealed the real facts. So far ill-health is concerned it seems that the learned Controller has observed that the respondent's husband has defective eyesight. This may be so but the extent of the defect which may disable him from carrying on the normal course of life and business has not been established. No medical certificate has been produced to prove the extent of defect and disability. Except the alleged defect in eyesight there seems to be no other physical disability or ailment which may obstruct him from going out of his house. According to his own statement he has been carrying on business and there is no evidence that any other person helps him in his business. During the hearing of this appeal he has regularly attended the Court and has not apparently shown such disability that he cannot go out of his house. The respondent has failed to establish her plea for bona fide use and occupation of her husband the finding of the learned Controller is set aside.
4. ' The question of default can be divided in two categories one regarding rent and the other regarding payment of electricity charges. It is significant to note that in the pleading and the evidence, the respondent has nowhere specified the period for which electricity charges and rent have not been paid. In this regard Mr. Munawwar Malik the learned counsel for the appellant has referred to paragraphs 1 and 2 of the ejectment application where allegation of willful default has been made without specifying the period for which the rent and charges have not been paid. In this state of pleading and evidence of the respondent, the learned counsel for the respondent has relied entirely on the statement of the appellant. According to him the appellant has admitted that he has not paid the electricity charges and further the evidence produced, by the appellant does not establish that the rent has been paid from September, 1979 to June, 1980. Therefore, from the evidence of the respondent it is established that he has paid the rent up to June, 1979. There seems to be no dispute about it. The dispute is from July 1979 till June, 1980, because from July onwards the appellant is said to have been depositing the rent in Court. To establish that the appellant has paid the rent, the learned counsel for the appellant has relied on Exhs. 0/19, 0/27, 0/8, 0/9, 0/10 and 0/27 and also certificate of Pakistan Post Office, dated 31-5-1983 in which it is stated that money order was remitted on 19-1-1980 to the respondent for Rs,600 which according to the respondent represented the rent for January and February, 1980. The learned counsel for the respondent has taken me through the entire evidence and contended that Exh.0/19 being the statement of account of the bank does not prove the payment to the respondent. Exh.0/27 is a receipt alleged to have been executed by the respondent's husband but it was neither mentioned in the written statement nor he was confronted with this document and it was produced in re-examination. So far the money order receipts are concerned some of them have been signed by Ishtiaq who is the son of the respondent but on other money order receipts the signature cannot be recognized. The situation which emerges is that in the ejectment application the respondent did not specify the period of default nor he stated that the rent from a particular date was not paid. The initial burden is always upon the landlord to establish that the tenant has committed default. Once this burden is discharged then the burden shifts to the tenant to establish that he has paid the rent or that he is not a defaulter in the payment of rent. I find that the burden had hardly been discharged by the respondent because no specific instance of default has been given. In such circumstances to call upon the tenant to prove payment or disprove the default would be somewhat a strange procedure., It is true that the documents produced by the appellant unless properly proved payment of rent will not be fully established. However in this strange and vague circumstances with which the appellant was faced, only respondent is to be blamed. The appellant has also produced money order receipts along with the remittance receipt which give some credibility to this document but since they have been denied by the respondent it would be necessary that they may be proved according to law. In the circumstances as the respondent has been vague in her averments relating to default in the application as well as the evidence and documents produced by the appellant which seems to be authentic, if proved may explain the payments, in my opinion it will be just and proper to set aside the finding of the learned Controller on issue relating to default and remand the case to the learned Controller. to record the evidence of the parties afresh on the issue of default and give his decision in the matter.
5. ' The next issue relates to payment of electricity charges. In this regard also the evidence of the respondent is sufficiently vague and uncertain. The learned counsel for the respondent has relied on the cross-examination of the appellant in which he has stated about the payment of electricity charges and further that after 'service of notice the electricity charges were not paid to him.
6. According to Mr. Munawwar Malik if the entire statement is considered together then it means that the electricity charges have been paid. As this issue is a part of issue No, 3 relating to the default in payment of rent this should also be tried by the learned Controller afresh.
7. ' The appeal is allowed and the Case is remanded to the learned Controller for trial on issue No, 3.