1. ' This first rent appeal is against the order, dated 21-3-1983 passed by learned XlIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No,3567/80 whereby he dismissed the rent application for eviction of the respondent.
2. ' Brief facts leading to this appeal are that the respondent is tenant of two shops in the House No,751/4, in Drigh Colony, Karachi at the rate of Rs,10D per month for each shop plus electricity charges. This property is owned by Mst. Razia Sultana wife or the appellant but is managed and looked after by the appellant, who also collects the rent. The appellant in his capacity as landlord inducted the respondent as tenant of the two shops, vide tenancy agreements, dated 11-11-1968 and 4-1-1970. It is alleged by the appellant, that the respondent failed to pay the rent and electricity charges from 1-1-1980 to 30th June, 1980 and also that he requires the two shops in possession of the respondent for his own personal use. He fired rent application for eviction of the respondent on these two grounds. The respondent resisted application raising the legal plea, that the application by the appellant was not legally maintainable. He further claimed that he had paid the rent uptil April, 1980, but appellant did not issue receipts for the same. He averred that the rent for the month of May, 1980 was sent by money order on 1-6-1980, which was returned refused. He then started depositing the rent in Misc. Rent Case. No,3680/80. He further contends, that he had deposited with the appellant an amount of Rs,1,500 in respect of one shop and Rs,500 in respect of the other shop.
3. He also denied the claim of the appellant that he required the shops for his personal bona fide use.
4. ' On the pleadings of the parties the learned Rent Controller framed the following issues.
(1) Whether the application is not maintainable?
(2) Whether the opponent has committed default in payment of rent as well as electricity charges?
(3) Whether the applicant requires the premises in case for his personal bona fide use?
5. ' He decided all the three issues against the appellant.
6. ' The only ground on which the learned Rent Controller has held the application to be not maintainable is that it is not filed by the owner, viz. Mst. Razia Sultana wife of appellant. Under section 15 of the Sind Rented Premises Ordinance, 1979, the landlord seek eviction of the tenant on the various grounds mentioned therein. It will b significant to note, that the word used in the section is 'landlord' and not the owner. Word 'landlord' has been defined in section 2 (f) o the Ordinance to mean "the owner of premises and includes the person who is for the time being authorised or entitled to receive rent in respect of such premises."
7. ' It is not disputed, that the rent is being collected by the appellant. The copies of tenancy agreements have been produced by the respondent as Annexures "A" and "B" to his written statement. These agreements clearly show, that the respondent was inducted as tenant by the appellant, wherein the appellant has been described as landlord and there is no mention of Mst.
8. Razia Sultana..As a matter of fact, after, after being inducted as tenant of the appellant, the respondent is estopped under section 115 of the Evidence Act from denying his title as lanldlord. In fact the respondent does not deny the title of the appellant as lanldlord, but only raised objection, that because he is not owner, he could not file eviction application. Section 15 read with subsection 2(f) of the Ordinance clearly provides, that, any person who for the time being is entitled or authorised to receive the rent is a landlord and can file application for eviction of a tenant. The finding of the learned Rent Controller on issue No,1 is therefore reserved.
9. ' Admittedly the respondent was receiving receipts of the rent paid by him up till December, 1979.
10. As a mtter of fact, he himself has produced receipt of rent of December, 1979 as Annexure "C". It does not appeal to reason, that thereafter the appellant would have refused to issue the receipts of the rent or the respondent would have paid the rent without obtaining receipts, specially when, on his own admission, he knew that the appellant was trying to evict him. The onus of proo of payment is upon the party who alleges such payment. The oral statement of the respondent, that he paid the rent, but the appellant did not issue the receipt, or that he made such entry in his own book of account, which does not bear any signature of appellant would no be sufficient to discharge this onus. However, it is also admitted tha the respondent had tendered the rent for May, 1980 through money order dated 1-6-1980 and since May, 1980 he has deposited the rent with the Rent Controller in Miscellaneous Rent Application No,3680 of 1980. It is also admitted that he has deposited Rs,40 per month with the learned Rent Controller as electricity charges. It therefore leaves us with the question of default in payment of rent. With regards to four months of January to April, 1980 which would amount to Rs,800. In view of the law laid. Down by thier Lordships in PLD 1980 SC 298, after the expiry of the tenancy agreements, the relationship of the parties would be governed by the relevant rent laws and the landlord would not be justified in keeping back the security deposit of the tenant. Admittedly Rs,1,500 wre lying as deposit with the appellant in respect of one shop and Rs,500 in respect of other shop. The learned counsel for the appellant submitted, that Rs,500 of respondent of first deposit have already adjusted towards the rent. However, Rs,1,500 still remain with the appellant. The arrears of rent for the months of January, to April, 1980 would come to Rs,800. The appellant claims Rs,340 as outstanding electricity chatges for the 6 months out of which, admittedly the respondent has deposited Rs,80 with Rent Controller for the months of May, and June 1980. This leaves the balance of Rs,260 towards the electricity charges for the period in question. The respondent would thus be indebted to the appellant to the extent of Rs,1,060 as against Rs,1,500 of the respondent which are lying with the appellant. As such the respondent cannot be considered as defaulter. It may also the pointed, that the rent for the months of May and June, 1980 can be paid by the respondent within 60 days after the same became due, but he had admittedly deposited the rent for these two months with the Rent Controller in July, 1980.
11. ' Only other ground on which eviction is sought is bona fide requirement of the appellant for his personal use. In his rent application in para No,6, appellant averred "the applicant needs the premises for his personal use". In his cross-examination before the learned Rent Controller, the appellant has admitted that he is serving in Pakistan National Shipping Corporation as Auto Electrician. Apparently for that reason in his affidavit in evidence, in pars No,5 he has modified his requirement and stated, that the "applicant require the premises for his personal use as his son Nadeem Nayar aged about 18 years has opened hotel. This hotel cannot be run properly unless these shops are vacated and only then the light and air can be used in the area in which the hotel has been opened.
12. ' Admittedly the building in question consists of upper floor, where the appellant resides and 5 shops on the ground floor. Admittedly the appellant is in possession of two shops on the ground floor and has filed ejectment applications against the tenants of the remaining 3 shops claiming, that he required all these shops for his personal bona fide use. In his support, he has relied upon a case reported in 1985 SCM R 1769 wherein their Lordships have observed that "in deeming the vacation of one shop, as sufficient for the requirement of the landlord without objectively ascertaining his requirement was an untenable view and could not form the basis of the decision.
13. The High Court has held that the law gives the landlord the choice and if he says, that he needs three of them at the same time, it has to be considered rather in a pragmatic manner."
14. The mere fact, that the appellant is in possession of two shops, would not debar him from claiming eviction of the other shops, but th Court has to consider evidence on record objectively to find out, ' the need of the landlord is bona fide and in good faith. It is admitted fact, that the hotel was started in two shops. It is alleged by the respondent, that the respondent had rented out these two shops to a Pathan on a Pugri and high rent for running hotel, which fact is denied by the appellant.
15. Appellant has admitted, that his son was running hotel in partnership with the Pathan. Neither any partnership deed has been produced nor any other evidence to substantiate the contention of the appellant, similarly the respondent has also not produced any reliable evidence to support his contention, that the appellant had given the two shops to Pathan on rent and Pugri. However it is admitted by the respondent in cross-examination that even this hotel is now closed and these two shops are lying vacant and closed. It is also admitted by the respondent in cross-examination, that the son of the appellant is doing sugar-cane business on Pathara in front of these shops and that he had roved S.D.M. For removal of the machine. Apparently either the appellant does not want to use the two shops which are in his possession, or he has no means to open the business in those two shops. There is no reason, why he or his son, if they actually want to start the business, are not using the shops. Word 'hotel' is very vague. In city of Karachi there are 5 Star. Hotels and also small hotels run by Mulbaries and Pathans in Cabins. No evidence has been produced, that two shops in possession of the appellant, are insufficient for the hotel. It is settled law, that mere whim and desire of landlord that he requires the premises for persona use is not sufficient for evicting a tenant. He has not examined even his son, for whom he requires the demised premises. He has produced no evidence as to why the hotel run in two shops was closed and what are his plans and means to open the hotel on the entire ground floor. In absence of such evidence the court cannot come to any objective pragmatic view that the appellant requires the demised premises in good faith for his personal and bona fide use. The appellant has failed to discharge the burden of proof.
16. He should have produced sufficient evidence and should have brought on record such circumstances, on which the Court can come to conclusive finding, that the requirements of landlord are bona fide and in good faith. The evidence on record does not make out any case for bona fide requirement of the premises by the appellant in good faith. The appeal is therefore liable to be dismissed.
17. ' The appeal was dismissed by a short order dated 1-12-1985. Above are the reasons in support of the said short order.