' SAJJAD ALI SHAH, J.---This appeal calls in question judgment, dated 22-2-1990 of the High Court of Sindh, whereby F.RA. No,812 of 1986 filed by appellant before us is dismissed.
2. Briefly stated the relevant facts giving rise to this appeal are that respondent herein namely Hassan Siddiqui is landlord and filed Rent Case No,60/82 in the Court of Senior Civil Judge and Rent Controller, Karachi for eviction of appellant/tenant (hereinafter both parties would be referred to as landlord and tenant) on the grounds of default, unauthorised construction and subletting.
Tenement in dispute is shop at the rate of Rs275 per month. Tenant in written statement denied allegations and asserted that on refusal of landlord, he had been depositing rent in the Court in Miscellaneous Rent Case No,266/82 from September, 1981. Two issues were framed, one with regard to default and the other relating to unauthorised construction and subletting. Landlord filed affidavit of evidence but did not present himself for cross-examination and on behalf of tenant, his attorney Ali Muzafar was examined and cross-examined. Issue regarding default was found in favour of landlord and eviction was granted on that ground only. Appeal is dismissed by the High Court as stated above.
3. It appears from the record that eviction was granted by the learned Rent Controller on the ground of default and the High Court after remarking in the impugned judgment that it was a peculiar case in which on failure of landlord to lead evidence, evidence of tenant was appreciated and default was held to be proved, finding of Rent Controller was maintained. Leave was granted by the Supreme Court to consider that whether on such state of evidence on the record positive finding of default is sustainable or not.
4. Mr. Nizam Ahmad for tenant submitted before us that landlord failed to appear for cross- examination and his side was closed by the learned Rent Controller vide his order, dated 13-3-1983, hence ejectment application should have been dismissed. It was submitted that another good reason for dismissal of ejectment application was that on behalf of tenant, it is explained in para.2 of the affidavit of Ali Muzafar that landlord refused rent and money orders, hence rent was deposited in the Court and landlord did not appear in the Court to deny or dispute these facts. We do not propose to make any comment on the evidence at this stage.
5. Mr. Nizam Ahmad has cited before us decision of the Supreme Court on this ,point in the case of Allandin v Habib reported in PLD 1982 SC 465, in which it is held that non-payment of rent is negative fact and in support thereof, it is enough if landlord appears in the Court and states on oath that he had not received the rent and then burden shifts to tenant to prove affirmatively that he has paid or tendered such rent. Mr. Nizam Ahmad further has submitted before us that facts of the reported case are distinguishable inasmuch as in that case landlord appeared in the Court and asserted that he issued receipts for rent accepted by him and also produced receipt book and in the instant case landlord did not appear in the Court for cross-examination at all, hence his affidavit-in-evidence is incomplete and meaningless for want of cross-examination.
6. In view of legal position stated above, both the learned counsel appearing before us for the parties have consented to the remand of the case, hence we set aside impugned judgment of the High Court and order of eviction passed by the Rent Controller and remand the case to the learned Rent Controller for allowing the parties to produce evidence afresh on the issue of default and then give decision according to law within six months from the date of receipt of record. Appeal is allowed in terms stated above. There will be no order as to costs. Office is directed to despatch record immediately.