1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order dated 28-3-1990 passed by learned Rent Controller Karachi (South), whereby he directed the appellant to hand over vacant possession of the premises in question to the respondent within 60 days from the date of said order. The facts relevant for decision of this appeal are as follows: ' Respondent Ghulam Nabi, on 10-5-1988 filed an eviction application against appellant Ghulam Haider Baluch from the premises being shop, situated on ground floor of No. K-6-A-8-S/2, opposite Naguman Masjid, near Lyari Medical Store, Tannery Road, Lyari Quarters, Karachi on grounds of personal bona fide use and default in payment of rent. It is alleged that the appellant is a tenant of the respondent in respect of said shop and a tenancy agreement in this respect was executed by the parties on 4th July 1979. The appellant is running said shop in the name and style' "Indus Music".
2. The respondent has claimed that initially the rent of said shop was Rs.150 and later on it was enhanced to Rs.500 p.m. An amount of Rs.6,000 was paid by the appellant to the respondent as fixed deposit, which was to be refunded at the time of handing over vacant possession to the respondent. It is said that the appellant paid rent up to December, 1987 for which receipts were issued. On the point of bona fide personal use, the case of the respondent is that he requires said shop for his own personal use and for his son Abdul Aziz as well. who now has become major. They want to establish the business of general merchandise in said shop.
3. ' The appellant, in written reply, resisted the claim of the respondent and maintained that neither he had committed any default nor the shop was required by the respondent for his bona fide use.
4. He has alleged that respondent had never issued rent receipts, and that in January, 1987 he had renovated the shop and replaced the then existing roof with R.C.C., and had also constructed a room on first floor for the respondent, and as such spent an amount of Rs.31,700, which was to be paid back by the respondent in monthly instalments of Rs.500 each. According to him said amount was not returned back to him and for its recovery he had filed a civil suit in the Court of VIIIth Senior Civil Judge, Karachi, which is still pending for decision. He has specifically mentioned that he had paid rent Rs.150 p.m., to the respondent up to April, 1988 and the latter did not accept rent for the month of May, 1988, as such he deposited the same in the Court by submitting the Application No.777 of 1988.
5. ' From the pleadings of the parties, the following issues were settled by the learned Rent Controller:- - "(1) Whether opponent is a wilful defaulter in payment of rent?
(2) Whether the applicant requires the demised shop for his personal bona fide use and that of his son?
(3) What should the order be?"
6. ' In support of his case, the respondent filed his affidavit-in-evidence and that of Niaz Ahmed, whereas, the appellant filed his affidavit-in-evidence and that of Ahmed s/o Muhammad and Ahmed s/o Gut Muhammad.
7. ' On assessm ent of evidence brought on record, learned Controller decided Issue No.1 in favour of the respondent and consequently allowed the eviction application. On issue No.2, the finding of the Rent Controller is that the respondent does not require the shop in question for his personal bona fide use.
8. ' While dealing Issue No.1, learned Rent Controller observed that the rate of rent was Rs. 150 p.m. and there was no evidence to show that it was enhanced to Rs.500. He also observed that it was not proved from the record that the appellant had paid rent after December, 1987. He held that from January, 1988 to April 1988 rent was not paid. On the point of personal bona fide use, he mainly relied upon a photograph, which showed that the respondent was sitting on a Pan Beri shop, and from this he reached the conclusion that the respondent did not require said shop either for his personal use and or for his son.
9. ' It has been contended by learned counsel for the appellant that learned Rent Controller failed to appreciate the evidence brought on record, and as such reached wrong conclusion. Learned counsel submitted that no default was committed by the appellant and on the contrary the appellant always, in advance, deposited the monthly rent with the respondent. The respondent in his affidavit-in-evidence in para 6, clearly stated that from the month of January, 1988 onward the appellant had not paid monthly rent, despite the fact several demands in this regard were made.
10. The appellant on this point, in cross-examination, clearly admitted that he had deposited rent in Court for the first time in May, 1988. In the case reported in PLD 1982 SC 465 Allah Din v. Habib., it has been held that non-payment of rent is a negative fact and if the landlord appears in Court and states on oath that he has not received the rent for a certain period it will be sufficient to discharge the burden that lies upon him and the onus is shifted upon the tenant to prove that he had paid or tendered the rent for period in question. The principle laid down in this authority is fully attracted to the case in hand. The respondent as mentioned earlier, has clearly stated in his affidavit-in- evidence that the rent from January to April 1988 was not paid to him. It was from the appellant to have proved that he had paid rent for the said period.
11. ' The appellant in his affidavit-in-evidence in para. 11, stated that on 2-5-1988 he had gone to the respondent for paying rent for the month of May, 1988. In para. 12, he stated that, on 26-5-1988, he deposited rent in Court for the month of May, 1988 vide Application No.777 of 1988. While dealing with the issue of default learned Rent Controller placed reliance upon the case reported in 1982 CLC 1106 Kaniyer Lal v. Muhammad Ismail in which it has been held that after the expiry of original tenancy agreement, the terms and conditions of said agreement become inoperative and the parties thereafter are regulated by the provisions of Sindh Rented Premises Ordinance, 1979. This point also came under discussion before the Honourable Supreme Court in the case reported in PLD 1988 SC 190 Mrs. Zarina Khawaja v. Agha Mahboob Shah and the following was held:-- "The terms of the so-called expired agreemnt which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on, this aspect in the case of Muhammad Unus Malik v. Mst. Zahida Irshad 1980 SCM R
184. We accordingly answer the 4th question in the negative and hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law.
12. Indeed same would be the position with an unexpired agreement also."
13. ' Thus, now, the legal position is that the terms of the expired agreement, subject to the observations as above, continue to operate. The tenancy agreement of the case in hand provided that the monthly rent was to be paid up to 5th of each month. Therefore, under section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979, the appellant was to pay rent within 15 days after the expirty of the period fixed by mutual agreement between the parties and he was not entitled to grace period of 60 days, as was extended by learned Rent Controller. Mere statement of the appellant that he had paid rent for the period in question was not enough to discharge the burden of proof, which was upon him. The default on the part of appellant is proved and it was wilful.
14. ' Learned counsel for the respondent submitted that the finding of Rent Controller on the point of personal bona fide requirement is incorrect. He argued that he is entitled to agitate this ground. In support of his contention, he placed reliance upon the case reported in 1990 ALD 557 Qadri Borthers Foundry and Workshop etc. v. Masood Hussain Antria. In this reported case, it has been held that appeal against eviction order makes whole case open for review and it would be open to a party aggrieved by rejection of a ground to urge said ground before Appellate Court in support of appeal or in support of eviction order. It has also been observed that the provisions as to file cross- objections contained, in Order 41, rule 22, C.P.C. are not in terms applicable to appeal under section 21 of the Sindh Rented Premises Ordinance, 1979. The principle is fully applicable to the case in hand and respectfully following it I, now, proceed to examine whether the ground of requirement in good faith was established before the Rent Controller or not. From the impugned order, it is evident that learned Rent Controller was impressed by a photograph, which in cross-examination was shown to the respondent. Learned Controller, while dealing with this issue, observed that son of the respondent namely, Abdul Aziz was not put into witness-box to prove that demised shop was required for him. He held that respondent was running a Pan Beri Cabin alongwith his son, as such, the shop in question was not required for personal bona fide use. Under section 15(1) of the Sindh Rented Premises Ordinance, 1979, the landlord is only to show that he requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.
15. On the point of personal bona fide use, the respondent in his affidavit clearly stated that he requires the shop premises in good faith for his own occupation and for the occupation of his son, as they intend to do their own business. He in cross-examination, on this point deposed that there is only one shop on the ground floor of the building in which he resides. He has denied the suggestion that Pan Beri Cabin belonged to him and voluntarily stated that it was of his brother. His witness Niaz Ahmad, in his affidavit-in-evidence, has confirmed what the respondent mentioned in his affidavit. It is the landlord's prerogative and discretion to select the premises for himself. Tenant cannot impose his will upon the landlord. The fact that the respondent's son is major has not been disputed. Nothing material has been brought on record to show that demand of respondent for personal bona fide use was unjustified. Looking to the social status of the respondent, it is noted that he had said, what probably he could say, in support of his requirement for personal bona fide use. Nothing further was essential for him to disclose. When ejectment is sought on the ground of personal use, it is not essential that landlord shall appear before the Rent Controller for cross- examination. On this point reliance is placed upon the case reported in PLD 1985 SC 38 Arshad Umer and another v. Begum Nazrul Askari. The Court shall give its finding on the basis of evidence brought on record. I am therefore, of the view that the respondent is also entitled to vacant possession of the premises in question on the ground of bona fide personal use. The finding of learned Controller on this point is not correct and is reversed.
16. ' In consequence, the appeal is dismissed with no order as to cost. Three months time from now, however, is granted to the appellant for handing over vacant possession of the premises in question to the respondent.