S.A. NUSRAT, J.--The petitioner/ landlord applied for ejectment of the respondent from the disputed shop on the ground of default in payment of rent from 1st July, 1980 to 30th November, 1982 i.e. For a period of about 29 months and also on the ground of personal bona fide requirement.
The respondent denied having committed any default and pleaded as under:- "It is also not admitted, since the time of the tenancy between the applicant and the respondent, applicant used to collect accumulative rent according to his own convenience. This was never such practice that the rent is payable on the first day of each month. The applicant was also in habit of receiving the rent but was not issuing any receipt thereof. In this way applicant had already received rent for the alleged period. However, respondent on so many occasions approached to the applicant for issuance of receipt though for same period he had issued Katcha receipts on a piece of paper but when respondent came to know that the applicant had turned dishonest the respondent sent rent through money order which was refused by the applicant and thereafter the respondent started depositing the rent in Court and presently nothing is outstanding against the respondent."
The claim of bona fide requirement was also disputed. On the pleadings of the parties, two issues were framed by the learned Rent Controller; on the question of default and bona fide requirement of the petitioner. After recording evidence in the case, both the issues were decided by the learned Rent Controller, by his order dated 13-2-1986, in favour of the petitioner and the respondent was ordered to be evicted. However, on appeal by the respondent, the order of eviction was set aside by the learned High Court as per impugned judgment.
2. The question of default alone was pressed by the learned counsel for the petitioner for the purpose of grant of leave at this stage. In this connection, it was pointed out by the learned counsel that in reply to allegation of default the respondent had taken a definite stand as reproduced above. The petitioner had discharged the burden of proving the issue of default by producing his evidence whereas no evidence, whatsoever, was produced by the respondent showing that either be had sent the rent through money orders or deposited the same in Court as alleged. In this view of the matter, the respondent has failed to discharge the onus of proving his defence and, therefore, the assertion of the petitioner on the question of default was duly established. This aspect of the case, according to the learned counsel, was not taken into consideration by the learned High Court in upsetting the finding of the learned Rent Controller.
3. The above contention, inter alia, requires consideration. Leave to Appeal is accordingly granted.
Security Rs.1,000. The appeal will be heard on the same record with liberty to the parties to file documents, if any.