1. ' Shop bearing No. 426 Ward 3 located in Sarafa Bazar, Jacobabad was owned by one Muhammad Ramzan predecessor-in-interest of the applicants/appellants. It was purchased by him from a gentleman named Chetomal. It was rented out to the respondent No. 1 Bhagwandas initially at a low rent but at the time of death of Muhammad Ramzan the rent was paid at the rate of Rs. 60 per month. After the death of Muhammad Ramzan there seems to be a lull' till 14th of February, 1980 when a notice was sent on behalf of the appellants to the respondent complaining about default in payment of rent from 1st of January, 1979 to 31st January, 1980. The notice further required the respondent to vacate the premises as they were required by the widow for the personal use and occupation of the appellants. It may be stated that the appellant No.1 is the widow of late Muhammad Ramzan and appellants 2 to 8 are her minor children. The allegations in this notice were disputed by the respondent by a reply sent through his Advocate. It was stated in that reply that the rents were paid to one Fateh Muhammad who is brother-in-law of Muhammad Ramzan till December, 1979 and thereafter attempts were made to tender the rents through money order which was refused by Fateh Muhammad as well as the appellant-lady. Apprehending trouble at the hands of the appellants through Martial Law authorities the respondent Bhagwandas filed a suit in the Court of the learned Civil Judge Jacobabad praying for declaration and an injunction for restraining the appellants from illegally and unlawfully ejecting the respondent from the premises.
2. The defendants/appellants herein entered appearance and made a statement that they had no intention of taking any illegal action against the respondent. They had, it was further stated, issued a notice to the respondent and would be filing ejectment proceedings against the respondent in due course of law to obtain possession of the ,premises within the four corners of law. On this statement the proceedings terminated with the observation "In view of the statement filed by the defendant's counsel the suit of the plaintiff is decreed to the extent that he should not be ejected forcibly."
3. ' On 2nd of September, 1980 the appellant/landlady as a widow of Ramzan and next friend and natural guardian of appellants 2 to 8 filed a rent application No. 33 of 1980 claiming the possession of the shop on three grounds enumerated in paras. 4, 5 and 6 of the application which are as follows:-
(4) That the opponent No. 1 is a deliberate defaulter having been failed to pay the rent due at the rate of Rs. 60 (sixty only) per month to the applicants w.e.f. 1-1-1979 to 31-8-1980 contumaciously to the tune of Rs. 1,200 (one thousand two hundred only).
(5) That the opponent No. 1 without the written consent of the applicants has sublet the rented premises in favour of opponent No. 2, even after the service of notice (Annexure C).
(6) That the rented premises is required by the applicants in good faith for their own occupation and use reasonably."
4. ' The respondent No. 1 filed a written statement denying all these allegations. In reply to para. 4 the answers was that he had paid the rents of the premises to Fateh Muhammad brother-in-law of late Muhammad Ramzan upto December, 1979 and thereafter on refusal of Fateh Muhammad to accept the rents, had attempted to tender the rents through money orders which effort also proved to be unsuccessful. In reply to the allegation of subletting the respondent's case was that respondent No. 2 was the son of real brother of respondent No.
1. They were all members of a joint Hindu family. The respondent and his brother Bagoomal were carrying on hotel business adjacent to the shop in question and were also partners in several other businesses. The shop was formerly used as a godown of the hotel. Subsequently it occurred to them to put this shop to a better and more purposeful use and they have started cassette business under the name and style "Bambino Music Centre". This business is managed by respondent No. 2 on behalf of the partnership or as a member o,f the joint Hindu family and that the opponent has his subsisting interest in the shop and the tenancy.
5. ' So far as the allegation of personal need was concerned the reply was that the applicant/appellant was a pardanashin lady not capable of running any business. So far as the appellants 2 to 8 were concerned they were minor children not groomed in business and having no experience as such quite unfit to be entrusted with any commercial adventure. It was further stated that on her own showing the appellant No. 2 who was the eldest of the children was only 10 years of age and was still a School-going child. The case was tried by the learned Rent Controller who framed the following issues and proceeded to record evidence in the case. Issues framed by the learned Rent Controller are as follows:-
(1) Whether the opponent No. 1 has committed default in payment of rent from 1-1-1979 to 31-8- 1980 ?
(2) Whether the opponent No. 1 has sublet the disputed shop to opponent No. 2 Manoharlal without consent of the applicant ?
(3) Whether the applicants required the disputed shop for their bona fide personal use ?
6. ' The learned Rent Controller has answered all these issues against the appellants and dismissed their application obliging them to file this first rent appeal against this order.
7. ' It must be appreciated that sometimes the Rent Controller is placed in a very difficult situation, when the versions of the landlord and tenant clash on facts and there is word against word. To avoid miscarriage of justice one has to make a search for the truth. Surrounding circumstances and circumstantial evidence often prove to be of value. In the present case the admitted facts are that Ramzan died on the 5th of September, 1978. The applicant as well as Fateh Muhammad have accepted that the tenant has paid rents to them for the months of August, September, October, November and December, 1978. In my view this admission on their part to have received this money although no receipts were produced by the respondent to prove this payment shows their bona fide and honesty. The case of the respondent is that he paid rents up to December, 1979 for which no receipts were passed remains unsubstantiated. All the efforts to show his anxiety to tender the rents due relate to the period starting from January, 1980. Five money orders are said to have been sent by the respondent to the appellant in his endeavour to discharge the liability against him. These money orders were sent on, 9th of January, 1980, 13th January, 1980, 12th February, 1980, 28th February, 1980, 11th May, 1980 and 8th August, 1980. Assuming for the sake of argument that these money orders were sent and also assuming that the appellants refused to accept the money, it would not explain the default for a full one year January, 1979 to December, 1979 for which there is a word against word; the appellants asserting that no rents were paid necessitating the despatch of the notice dated 14th of February, 1980 while the respondent asserting that the rents for this period were paid to the appellants month by month every month during the year 1979. In his situation one has to search for some other attending circumstance which might throw some light to examine which side the balance tilts. On principle the respondent is a debtor and he has to discharge the burden of proof to show that he has paid the debts. He must either produce the receipt for the payment or must establish this fact through some other conclusive evidence. Nothing is forthcoming from his side. But in addition to this factor there is none more fact which is quite helpful to support the contention of the appellant and create a doubt against the respondent. The allegation of the respondent is that the rents for January to December, 1979 were paid to Fateh Muhammad on each month as and when they became due.
8. This Fateh Muhammad has filed affidavit denying this assertion and has also offered himself for cross-examination. In his cross-examination no suggestion has been made for this payment. Not a word was put to him confront him with this situation. There is a complete blackout so far as the payment of rent for this period is concerned although in his affidavit he had clearly stated that the respondents had paid rents only till December, 1978 and no further. In this situation I would resolve the controversy in favour of the appellants and hold that the period from January, 1979 to December, 1979 is a period of default and the respondent has clearly failed to pay rents for this period. Subsequent tender through money orders relate to the period of January, 1980 onward when the default had already been committed and he was under notice of ejectment. A such the findings of the Rent Controller cannot be upheld on this issue and are hereby reversed.
9. ' Turning to the question of subletting which is also a difficult question to answer one has to keep a few things in mind. If there is a subletting between a tenant and a stranger, they should take precautions and adopt some device whereby they are safe from the clutches of law prohibiting subletting without permission of the landlord. In common practice it is seen that some kind of device is resorted to even when the possession of premises is passed on to stranger on payment of Pugree. Whenever a new-comer is in trouble the original tenant turns up either to claim partnership or to assert that he is managing the business and the new-corner is merely an agent or attorney looking after the business which actually belongs to him. Such is the case here. Respondent No.1 accepts that respondent No. 2 happens to be in physical possession of the shop, that it is he who is managing business and running the Bambino Music Centre". But as subsisting interest is sought to be created in this business sometimes by asserting the concept of joint Hindu family and sometimes advancing the theory of partnership. He was cross-examined on this point and failed to produce any partnership deed or any document to show that he was actually in control of the business or shop and had not parted the possession of the shop. It is strange that business is conducted in partnership, through a stranger but neither there is any document nor any books of accounts nor any other evidence to show that he has any subsisting interest in this business.
10. Merely because the respondent No. 2 happen to be a nephew and under the Hindu law a member of joint Hindu family the basic statutory requirement of written permission from th landlord cannot be relaxed. The respondent has conveniently disappeared from the scene after handing over possession to a relative who runs a new business and controls it for all intents and purposes and yet in order to pull -out the nephew from the difficulty the respondent re-appears and asserts that it is a partnership business and the posses sion is a permissive possession. If this practice is approved then the words of the statute would be rendered a dead letter and the limited advantage allowed to the landlord by this statute would become meaningless. The requirements of law are that a landlord can apply to the Rent Controller for an order for possession if "the tenant has without the written consent of the landlord handed over the possession of the premises to some other person." The admitted position in the-present case is that the possession of the premises is not with the respondent No. 1 and it is with respondent No.
2. In my opinion this is sufficient to cover the cases under the above-quoted clause and I would hold that the findings of the learned Rent Controller are not proper and deserve to be reversed.
11. ' The third ground on which the possession of the premises was claimed was that after the death of the bread-winner of the family this widow wants to use this shop for her own use. This plea did not find favour with the learned Rent Controller. The Rent Controller has held in his order that: "The case of opponent is that the applicants does not require the disputed shop for their personal use the applicant No. 1 is Pardanashin and other opponents are minors. In this respect the counsel for applicant has produced authority reported in PLD 1982 Lah. 553 to the effect that "Ejectment on ground of Landlord's requirement for use of his son--Fact that Landlord's son was minor at time of initiation of ejectment proceedings. Held, of no help to tenant. "With due respect the facts of this case, as in the present suit the elder son of applicant namely Atta Muhammad is still minor and who has no knowledge of business and he is still student. In my humble opinion the intention of the applicants is not bona fide for requirements of this personal use, as usually the applicants take all the ground together with intention that if their one ground fails they can succeed on other ground.
12. In my humble opinion the applicants have failed to prove that they require the disputed shop for their personal bona fide use."
13. ' The clause in the Rent Act relating to personal requirement is not confined to personal occupation alone. The phraseology of clause (vii) subsection (2) of section 15 is "the landlord requires the premises in good faith for his own occupation or use for the occupation or use of his spouse or any of his children. "Had there been only the word occupation, perhaps it could legitimately be argued that all the members of this family do not qualify to be ranked as good tradesmen; one being a Pardanashin lady the rest being minors. But the insertion of word, use, in this clause is very meaningful and can embrace cases of such persons who may not personally occupy the premises due to physical disability, age or other handicaps but who may otherwise qualify themselves to use the premises in a number of other ways and be able to put the premises to their own use by employing their talent, funds and resources. Unless there are any restrictive and prohibitive words C in the section it would not be fair to deny this statutory benefit to a family of widow and orphans merely because they are in a more helpless position than the other who could run a business and control it by their personal supervision in a peculiar way. In my opinion it is enough if some kind of involvement whether monitary, physical or otherwise is created and the premises are not re-let on a higher rent.
14. ' It was suggested on behalf of the appellant that it does not require any high business acumen or larger funds to run a "Pakora shop" either through the son who is now 15 years of age or even through the real uncle Fateh Muhammad who is now supplementing the income of the family, the lady doing the cooking part while remaining in Parda and the others sitting on the shop. In the peculiar circum stances, I cannot see any reason why the appellants' need should be condemned as not bona fide merely because the son is only 15 years and the widow observed Parda. I would therefore, disagree with the approach of the learned Rent Controller and would reverse his findings on this issue as well.
15. ' The result is that this appeal is allowed with costs. The order of the Rent Controller, dated 7-9-1983 is set aside. The respondents should deliver vacant possession of the premises to the appellants by or before 31st of January, 1985 failing which the writ of ejectment would issue. They should continue to pay regularly the rents of premises either directly or deposit them in Court in terms of the tentative rent order, dated 16th of November, 1980 of the Rent Controller.