' This is first appeal under section 24 of the Cantonments Rent Restriction Act, 1963 against the dismissal of his ejectment petition by the Additional Rent Controller Cantonment on 27th of November, 1988.
2. The dispute relates to a shop bearing No, 64, Saagar Road, Saddar Bazar, Lahore Cantonment, which is in occupation of Muhammad Yasin respondent as a tenant under Aleem ud Din appellant at the rate of Rs,700 per month. On 6th January, 1988, the appellant filed a petition under section 17 of the Cantonments Rent Restriction Act, 1963 seeking eviction of the respondent from the shop in question on the grounds of default in payment of rent for the months of October, November, and December, 1987, personal use of the appellant and his two sons, Nazim ud Din and Sami ud Din and subletting. In the reply filed by the respondent these allegations were denied and it was stated that the rent for the disputed period stood paid to the appellant/landlord by the respondent who, however, had not issued any receipt. Personal need of the landlord was disputed and the allegation regarding subletting reversed. The Rent Controller after framing the necessary issues recorded the evidence of the parties. In support of his case the appellant appeared as a solitary witness as A.W.1. The respondent, on the other hand, examined Sh. Muhammad Siddique, a Councillor of the Cantonment Board as R.W. 1 and appeared himself as R.W.2.
' The Rent Controller by means of his impugned order dated 27th of November, 1988 dismissed the ejectment petition filed by the appellant. Under issue No 2 it was held that the rent for the months of October, November and December, 1987 stood paid to the landlord and there was no default. As regards the personal need, while deciding issue No,3, it was observed that the shop was not required by the appellant bona fide. Issue No,4 which related to subletting was also decided in favour of the tenant/respondent on the basis that Muhammad Asif, the alleged sub-tenant was the brother of respondent and there was no question of subletting in the circumstances of the case.
3, Mr. Muhammad Siddique Butt, learned counsel appearing on behalf of the appellant has voiced a grievance that the order passed by the Rent Controller is not in accordance with law as he had failed to discuss the evidence produced by the parties. According to the learned counsel, the case of the appellant stood proved on the record and, therefore, the Rent Controller was not justified in dismissing the ejectment petition.
' Mr. Walayat Hussain Haideri and Sh. Anwar ul Haq, Advocates who appeared on behalf of the respondent have supported the impugned judgment,
4. The argument of the learned counsel for the appellant that the order passed by the Rent Controller is not in accordance with law, is well founded. A bare perusal of the impugned order shows that it is laconic and falls short of the legal requirements. The Rent Controller acting under the Cantonments Rent Restriction Act, though not a Court, decides valuable rights of the parties and he is under an obligation to apply its mind and take full notice of the evidence led by the parties and to discuss it in detail before proceeding to decide the cause. In the present case, no such effort appears to have been made by the Rent Controller at all. Issue No, 1 was decided by making a generalised observation that the evidence produced by the respondent was sufficient for disproving the case of the appellant. Similarly, the question of personal need was not given the importance which it deserves and was disposed of by stating, without discussing any evidence nor giving any reason, that from the evidence produced by the parties it appears that no bona fide need exists. Similar treatment has been meted out to the issue on subletting. The order of the Rent Controller, therefore, on the face of it, is not sustainable.
5. I have, however, with the assistance of the learned counsel for the parties, perused the evidence on the record and have reached the conclusion that the findings arrived at by the Rent Controller are even otherwise not correct.
' In order to prove that the respondent had failed to pay rent for the months of October, November and December, 1987, the landlord appeared as his witness and deposed that the rent for the period in question had not been paid to him. In view of this specific denial the onus which initially rested on him stood sufficiently discharged and shifted to the respondent to prove affirmatively by leading positive evidence that he had paid the rent for the disputed period to the landlord. The evidence produced by the respondent is, however, wholly insufficient, self-contradictory and not worthy of any credence. Apart from appearing himself as R.W.2 the respondent has examined R.W.1 Muhammad Siddique as his witness who deposed that the rent for October, November, 1987 was paid in his presence but the landlord had not issued any receipts. He stated that at the time of this payment Sh. Zafar was also present but he was not produced as a witness by the respondent. In his cross-examination the witness stated that the rent was paid in his presence and specifically denied the suggestion that no payment was made in his presence. He was contradicted by the respondent himself who appeared as RW.3 and deposed that the rent was paid before they had assembled.
6. It is admitted by the respondent himself that tenancy is in writing and the landlord had always been issuing receipts. No reason as to why receipts for the disputed period were not issued is forthcoming on the record. In this state of evidence it cannot be held that the respondent had failed to prove that the rent for the disputed period had been paid by him to the landlord. In Allah Din v. Habib PLD 1982 SC 465, it was laid down that the non-payment of rent is a negative fact and in case of denial on oath by the landlord of having received the rent, it becomes incumbent upon the tenant to establish by producing cogent evidence that he had in fact paid the rent. In the present case the evidence falls short of this requirement and does not inspire any confidence. The observations appearing at page 468 of the report are instructive and are as under:-- ". . . Applying the principle to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in Second Appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises.
' `The findings of the Rent Controller on issue No,2 are, therefore, reversed.
'The learned counsel for the respondent next contended that the respondent had spent a sum of Rs,8,000 on repairs and renovation of the premises which he is entitled to have adjusted towards the arrears of rent, if any. It was also asserted that the respondent/defendant deposited the sum of Rs,10,000 as security with the appellant, therefore, for this reason also he was not a defaulter. It is to be noticed, however, that in the reply to the ejectment petition filed by the respondent no plea regarding security lying with the appellant was raised nor did the respondent while appearing as his own witness depose anything on this aspect of the matter.
7. As regards renovation, admittedly, before carrying on the alleged renovations no written permission was obtained from the appellant or from the Rent ControlIler, therefore, under no law such an amount could be adjusted I towards the rent.
8. Reverting now to the question of personal need, it is to be seen that the landlord had stated on oath that he was not in occupation of any shop and wanted to carry on his own business in the disputed premises. These facts were not rebutted by the respondent by producing any evidence.
On the other hand the respondent while appearing as his own witness shows his ignorance whether the appellant has any other shop. He further stated that the landlord was carrying on the business of manufacturing 'cream' in his own house. If this be the position obviously the requirement of the landlord to have the premises for the purpose of his business cannot be doubted. Reference in this connection may be made to Muhammad Sharif and another v.
Muhammad Afzal Sohail etc. PLD 1981 SC 246.
'As regards the allegation that the petition was filed mala fide to coerce the petitioner into paying an advance amount of Rs,50,000 and enhancing the rent, it does not stand proved by the respondent on the record. This fact was specifically denied by the appellant while appearing as A.W. 1 and has not been proved by producing any cogent evidence. Even otherwise, since the personal use of the appellant stands proved on the record this allegation cannot have any bearing on the case as there is sufficient protection available under the law to the landlord in case the shop is required for personal need by him
9. It was contended by the learned counsel for the respondent that the landlord had pleaded the need of his son though it is not one of the grounds recognised for eviction under the Cantonments Rent Restriction Act. This question need not be adverted to in the present proceedings, for, the personal use of the landlord himself stands proved. It may, however, be mentioned, that the need of the landlord also includes in certain cases need of his sons. Be that as it may, since the appellant had succeeded in proving his own personal need, the finding of the Rent Controller on issue No,3 cannot be sustained. In view of my findings of the issue regarding default, it is not necessary to decide the question of subletting.
' In view of what has been said above, this appeal succeeds, the impugned order of the Rent Controller is set aside and the ejectment petition filed by the appellant against the respondent is accepted. The respondent is allowed three months' time to vacate the premises in question. No order as to costs.