1. ' The appellant filed application for ejectment of the respondent from Shop No.126 Saddar Co- operative Market Victoria Road, Karachi which according to him was rented out to the respondent @ Rs.400 p.m. payable in advance. It was alleged that the respondent is a defaulter and has not paid rent from 1-2-1974 to 31-8-1974. It was further pleaded that the applicant is an aged person and requires the shop for the personal bona fide use and occupation of his son who has recently returned from England for permanent settlement in Pakistan and start his buisiness. It was further stated that the appellant and his son have no other shop except the disputed shop, nor they have vacated any shop within the urban area. The appellant filed written statement denying that he has defaulted in payment of rent. It was pleaded that the actual rate of rent is Rs.275 p.m. and not Rs.400. He further pleaded that the appellant has regularly paid the rent, but the appellant did not issue receipt. He insisted for the issuance of receipt for the month of August, 1974 in presence of three persons, but the appellant refused to issue the receipt. He, therefore, deposited the rent for the month of August and September, 1974 amounting to Rs.550 in Court. It was denied that the appellant requires the shop for the use of his son. The learned Controller by his order, dated 6-12-1977 held that the respondent has defaulted in payment of rent, and further that the shop is required bona fide and in good faith by the appellant. The rate of rent was held to be Rs.400 p.m. The appellant's application was allowed. The 1st Appellate Court by its judgment dated 25th November, 1978 set aside the order of the learned Controller holding that no default has been committed and the shop is not required bona fide by the appellant and further that the rate of rent was Rs.275 p . m .
2. ' Mr. Ejaz Ahmed the learned counsel for the appellant contended that the finding of the 1st Appellate Court that the shop is not bona fide required is erroneous as it is based on assumption that his son Jameel is quite independent economically and had not come to Karachi in 1977. In this regard the learned counsel for the appellant has filed application seeking permission to produce certain documents in appeal, but by a separate order that application has been dismissed. The learned counsel for the appellant further contended that in his statement the appellant has stated that in this shop he will carry on business and will be assisted by his son. The learned 1st Appellate Court has taken note of this contradiction in the pleading and the statement. According to the learned counsel the 1st Appellate Court has laid much emphasis on this fact, and held that the application lacks bona fide. It is true that there is a discrepancy in the statement and in the pleading, but in my opinion both can be reconciled. It is not contradiction in terms. He has not stated that he will exclusively carry on buisness in the shop. What the appellant stated was that he will carry on business in which his son will assist him. Therefore, the association of his son to run the business in this shop has not been excluded. Whether the opponent carries on business in this shop with his son jointly or the son exclusively carries on business make little difference as in both the cases the son would be carrying on business in the shop. 1 therefore, do not consider this discrepancy sufficient to defeat the bona fide of the appellant.
3. ' Mr.Syed Inayat Ali the learned counsel for the respondent has contended that the appellant has not been able to establish that the shop is bona fide required for his son firstly, because, the son is not in Pakistan and no material has been produced on record to show that he has returned back from England permanently. The appellant himself is carrying on business, and therefore, he has not explained in what circumstances he wants to close down his business and then come over here in this shop. On the other hand Mr. Ejaz Ahmed contended that in view of provision of section 13(3)(a)(ii) the appellant has merely to satisfy that the landlord requires the premises in good faith for himself or for his son and he or his son is not occupying in the same urban area in which such building is situated for the purposes of his business any other suitable building for his need and that he has not vacated such a building without sufficient cause.
4. According to the learned counsel, the appellant has satisfied these conditions, and therefore, he is entitled to the shop for his own use and occupation. In this regard it is pertinent to examine the statement of the appellant in which he has merely stated that he wants the premises for his own use and occupation and he will run business with the assistance of his son who has gone to England to purchase machinery and other articles. In cross-examination he has admitted that he is doing business in Feroz Market Karachi. He also admitted that his son has gone back to England six months back i.e. in the end of 1976. He has solemnised marriage with an English lady. He stated that his son has purchased hosiery machinery. This evidence can hardly be sufficient to establish that the appellant requires the premises for running his business which he now wants to start with the assistance of his son who is an Electronic Engineer. The appellant stated that his son will open a shop of electronic but in cross-examination he has stated that he has purchased hosiery machinery which means that he intends to instal hosiery machinery for manufacturing hosiery goods. Both the statements do not reconcile with each other. In a case where the landlord requires the premises, in order to establish his good faith he has to specify with reasonable precession the nature of business the purpose for which the premises is required and also the resources he has at his command for the purpose of carrying on that business. A mere statement, however, solemn it may be, does not prove the fact that the landlord requires the premises for his own purpose. It is a mere desire and not a need muchless a bona fide do requirement. The learned counsel for the appellant contended that the statement of the appellant has remained unchallenged and no evidence in rebuttal has been produced. It is incorrect to state that the appellant's statement has remained unchal lenged. A perusal of the cross-examination shows that this statement has been effectively challenged in the cross-examination. Evidence in rebuttal is required only when some facts are established and then it becomes necessary to demolish it by producing any evidence against it. This is not the case here. I may make it clear that if a statement is not sufficient to establish the fact then even if such statement is not challenged in cross-examination it will not prove such fact. Even an unchallenged statement has got to be considered on its own merits and it is to be seen whether it effectively proves the fact alleged by party. If a party makes a contradictory statement the even in the B absence of any cross-examination such statement can be discarded. In the present case as the appellant has not been able to discharge his burden to establish his bona fide requirement the learned 1st Appellate Court was justified in reversing the finding of the learned Controller.
5. ' The learned counsel for the appellant contended that the appellant's son was present in Karachi as admitted by the respondent's witness and had imported horsery machinery therefore, the 1st Appellate Court was not justified in rejecting the appellant's plea. The finding of the learned Controller on this issue is based on the bare statement of the appellant which is contradictory. The learned Controller without much discussing the evidence held that the contradiction in the nature of business was not sufficient to reject the appellant's plea as it was for him and his son to choose which business they wanted to start. On the other hand the learned 1st Appellate Court after perusing the evidence of the parties concluded that as it has not been established that Jamil has returned back to Pakistan permanently, the appellant is carrying on business in a shop which has not been established to be unsuitable and Jamil who is economically independent has not been examined, the appellant has failed to establish his bona fide requirement. The learned Controller decided the issue without considering all aspects of the case and evidence. In order to decide bona fide requirement, the alleged need, the person for whom it is required, the conduct of the person requiring it and the circumstances in which it is required have to be considered. If the landlord fails to prove his requirement C in good faith, but establishes that he is not occupying any other suitable building in the same urban area and has not vacated a building without sufficient cause, he will not be entitled to relief. All the three conditions specified in section 13(3)(a)(ii)(a)(b)
(c) have to be established by the landlord.
6. 'The import of machinery by itself does not establish the appellant's need. The appellant stated that he requires the shop for sale of hoisery goods but also stated that his son will open an electronic goods shop. Both the statements cannot be correct. If the shop is required for sale of hoisery goods to be manufactured by the machinery imported by his son then after the import, the machinery ought to have been installed. This not the case of the appellant that machinery is to be installed in the disputed shop. Therefore the use of shop is dependent on the installation of the machinery which according to the learned counsel o the appellant, upto date has not been installed. The first requirement therefore, does not seem to be bona fide. The second requirement exclusively relates to Jamil. He is an electronic engineer, has married an English lady, owns property in England and after going back to England in the year 1977 has not come back. His visit to Pakistan as admitted by respondent's witness seems to be temporary. If Jamil wanted to instal a factory he could have come over to Pakistan and installed it, started producing goods as such acts were not dependent on acquiring possession of the disputed shop. I therefore, do not see any force in, the contention of the learned counsel for the appellant that for the last ten years Jamil is waiting for the ejectment of the respondent and that is why he has not returned back for the last 7 years. If he wanted he could have started production in the factory and started setting the goods in his shop after ejectment. There are so many avenues for sale of goods and manufactures hardly postpone production for want of their own show room shop or sale depot.
7. ' The learned 1st Appellate Court has noted that Jamil was not examined as a witness. Mr. Ejaz Shaikh relying on 1981 SCMR 895 contended that failure to examine Jamil is not fatal to the appellant's case. It is true that in every case where a landlord requires the premises for his unemployed son, it is not necessary to examine him. But cases may arise where his examination becomes necessary. Where shop is required for a son who is economically independent and is well established in business, profession or service, it is necessary to examine him as the need is of exclusive nature entirely related to the son and he alone is in a better position to explain his requirement. The principles laid down in 1981 SCMR 895 has to be read with reference to the fact of that case which is completely distinguishable from the present one. In the facts and circumstances of the case Jamil should have been examined. One does not know whether he at all wants to come to Pakistan for permanent settlement. The appellant has not produced any letter of Jamil in which he may have expressed his desire to come to Pakistan. This was the least the appellant could have done. The ejectment case was filed in the year 1974 and appellant's statement was recorded on 4-5-1977. If Jamil was really in need of the disputed shop he would have made querries and written letters to his father inquiring about the shop. No evidence has been produced to that effect. The appellant's counsel has laid much emphasis on the fact that the respondents brother Umer (D.W.3) has stated that he met Jamil at Karachi in the year 1974. He had also visited Karachi in 1971-72. This statement can hardly improve the appellant's case. This only proves that Jamil has been visiting Pakistan but it does not establish that in 1975 he had come for permanent settlement. One cannot ignore the fact that since his departure he has remained unconcerned.
8. ' The next question for consideration is whether the respondent has defaulted in payment of rent.
9. According to the appellant the shop was let out to the respondent from 1st May, 1973 at a rent of Rs.400 p.m. which he paid upto January, 1974 and thereafter from February, 1974 to 31st August, 1974 he did not pay any rent. In this regard the appellant has produced a receipt book containing 9 counterfoils of the receipts issued in favour of the respondent. On the other hand the respondent has stated that he is a tenant from the year 1970 and has been carrying on business in this premises and paying rent @ Rs.275 p.m. He further stated that the appellant never issued any receipt and when he demanded the rent receipt from the month of Augst 1974 he refused and then he started depositing rent in Court. Sufficient documentary and oral evidence has been produced by the parties which requires scrutiny. The learned counsel for the appellant has contended that as the appellant has stated on oath and produced counterfoils regarding payments made by the respondent the burden has shifted to the respondent to establish that the rent has been paid by him regularly. In order to see whether the burden has really shifted from the appellant or not we have to refer to the evidence produced before the Controller. To discharge his burden the appellant has produced two documents Exh.0/51 and 0/52 through the respondent, one of which is a partnership deed between the appellant and one Muhammad Aslam for carrying on business in the disputed shop. The other document is an agreement between appellant and Muhammad Aslam which substantially purports to be rent agreement under which Aslam had to pay a monthly rent as a licensee of the said shop. The first document Exh.O/51 was executed on 6-4-1970 and the agreement Exh.0/52 is dated 16th April, 1970. Both the documents have been witnessed by the respondent. The second document i.e. the agreement states that the appellant has withdrawn from the partnership and that Muhammad Aslam would continue with the business and will pay Rs.250 p.m. to the appellant on 5th day of every month, for 36 months. A reading of both these documents clearly establish that this was intended to defeat the provision of law and circumvent some difficulties which may have been created by executing a lease agreement. These two documents seem to have been prepared simultaneously with the purpose of delivering possession of the shop to Muhammad Aslam and binding him down to pay Rs.250 p.m. From these documents the appellant wanted to establish that in fact Muhammad Aslam was in possession of the shop carrying on business there from 1970. But he has not succeeded in this attempt because Muhammad Aslam was not examined by him. The respondent examined him as a witness who admitted to have signed these documents, but stated that he did not take possession of the premises as the appellant had refused to give him any receipt. It therefore, seems that the appellant had entered into an agreement to rent out the shop to Muhammad Aslam, but as he did not agree to issue receipt for the payments Muhammad Aslam did not take possession of the shop and the arrangement fell through.
10. ' The question then arises whether the respondent was in possession of the shop as tenant from 1970 onwards. In this regard the evidence of the appellant is also material as he contends that before inducting the respondent as a tenant there were several other tenants who have been named by him but none of them have been examined, nor he has produced any counterfoil of the receipt or any document of any nature whatsoever to show that some other persons were tenants in the disputed shop. This discrepancy in evidence of the appellant leads to the inference that his statement is incorrect. In the face of this evidence how can an oral testimony of the appellant can be accepted that he has realised rent upto February 1974 and thereafter the respondent has defaulted. The only authentic evidence in favour of the appellant could be the counterfoils of the receipts alleged to have been issued but the fact remains that those counterfoils have not been countersigned by the respondent and therefore, it cannot be proved that receipts were issued to the respondent, otherwise in the normal course signature on the counterfoils should have been obtained to show that rent receipt had been issued to the respondent. The fact that the appellant has not produced any counterfoil in respect of other tenants to whom the shop is alleged to have been rented out earlier also leads to the inference that from 1970 no other person except the respondent was the tenant of the shop. On the other hand the respondent has produced a large number of the documents to show that he has been in possession of the shop since 1970 onwards.
11. All the documents are from the year 1971 onwards. The respondent has been carrying on business in the name and style of Fit Right Dress House. He has produced three order books ranging from May 1972 to December, 1972. He has also produced receipts issued by Saddar Co-operative Market Ltd. in the year 1972 and 1973 in the name of the owner i.e. the appellant except one receipt dated 10-11-1971 which is in the name of Fit Right Dresser. The respondent has explained in his statement that the subscription was paid by the respondent in the name of the appellant. This seems to be correct otherwise how could original receipts be in possession of the respondent. He has also produced letters addressed to him at shop No.126 i.e. the disputed shop, sent by his brother from Kuwait. These letters range from the year 1972 to 1973. The earliest being of 12th April, 1972. He has also produced a photo copy of the policy of insurance dated 29-3-1972 in respect of his firm located in the disuted shop which was issued for the period 29th March, 1972 to 28th March, 1973 and the premium was paid on 29th March, 1972 for which a receipt was issued. Exh.o /13 is a meter reading slip in respect of elective matter installed in the Shop. It is dated 15-9-1970. He has also produced the bills of K.E.S.C. from July, 1970 upto 1977. All these bills were in the name of the appellant addressed at shop No.126 Saddar Co-operative Market Karachi and the electricity charges have been paid against these bills. No suggestion has been made to the respondent that these bills were received by the appellant who used to deliver them to the appellant or any other person for payment. No explanation has been given by the appellant how these original bills came in possession of the respondent. There seems to have been a faint suggestion that the respondent was an employee of Aslam and continued in the shop. This plea does not seem to sustain. From the evidence it is clear that the stand taken by the appellant that the respondent is a tenant from 1973 and has paid rent against receipt issued by him is completely falsified. Once the main structure of the appellant's case is demolished there is nothing left to show that initial burden cast upon him has been discharged, therefore, there is no question of shifting the burden on the respondent to show that he had paid the rent for the period February, 1971 to August, 1972. The learned counsel has referred to PLD 1982 SC 65 that in case where claim has been made for default initial burden is on the landlord and once he states on oath that the rent has not been paid the burden is discharged and it shifts to the tenant. In the present case as has been discussed above the initial burden has not been discharged by the appellant. He has failed to establish that the rent was not paid as the oral and documentary evidence produced by him is not trustworthy. As the initial burden has not been discharged by the appellant the question of shifting it to the respondent does not arise.
12. ' The appellant has also claimed rent @ Rs.400 p.m. which has been denied by the respondent. The appellant has relied on the counter foils of the receipts and statement of the respondent in cross- examination that he had filed an affidavit before the Excise and Taxation Authority stating that he was paying rent @ Rs.325 p.m. In view of the fact that counterfoils have not been believed the only document left is the affidavit, of the respondent. This affidavit has not been produced and it may have been filed to create difficulties for the appellant. The rate of rent can be determined by looking into the facts and circumstances of the case. The partnership deed and the agreement produced by the appellant in cross-examination through the respondent clearly prove that in the year 1970 he had rented out the same premises for Rs.250. The tenancy claimed by the respondent is almost from the same period. It therefore, seems logical that the rent would have been fixed at Rs.250 p.m. In cases where there is no definite evidence to prove that default has been committed by the tenant the controversy is always resolved in favour of the tenant. Applying this principle, I am of the view that the appellant has failed to establish that the respondent has committed default.
13. ' Before parting with the judgment I may mention that the appellant has filed three documents to show that during the year 1969-71 the learned Judge who decided the 1st appeal was practising as an Advocate and was retainer of Saddar Co-operative Market Ltd. and therefore, he was biased.
14. This fact can hardly reflect upon the impartiality of the learned Judge. However, the learned counsel for the appellant did not press this objection.
15. The appeal is dismissed.