1. ' This appeal is directed against the order dated 21-7-1988 passed by Mr. Aftab Ahmad, the then learned Rent Controller, Karachi South, whereby appellant was directed to hand over vacant possession of the premises in question to respondent. The facts relevant for decision of this appeal are as follows:-- ' Respondent Allah Din on 29-11-1984 filed an application for eviction of appellant from premises No,G-25, LR-8/19 IV-C-87 Shanti Bai Compound, Nichol Street, Lawrence Road, Karachi, on the grounds of default, personal use and subletting. The case'of respondent is that appellant is a tenant in said premises on monthly rent of Rs,20 and such agreement of tenancy was executed on 19-1-1971. It is alleged that appellant is "a chronic defaulter" and she failed/neglected to pay rent from April, 1976 wilfully in spite of the fact that repeated demands were made in that regard. It is also the case of respondent that he requires the said premises for personal use, as his sons are grown up, married, and have children and his present accommodation is insufficient for his requirements. It is said that appellant handed over possession of said premises to some one else illegally and without his consent.
2. ' The appellant, in her written reply, denied above allegations and mentioned that the rent of premises was paid by her up to January, 1977, and when the rent for February, 1977 was not accepted by respondent, she had no other alternative but to deposit the same in Court.
3. Accordingly, she deposited rent in Court vide Rent Application No,281/71 and was doing so since then regularly. She claimed that rent was deposited up to October, 1985 and she is not a defaulter as is alleged by the respondent.
4. ' In support of his case the respondent filed his affidavit-in-evidence and was cross-examined. The appellant also filed her affidavit in evidence and in the period of about two years, during which about 55 times the case was adjourned, she did not appear in Court for her cross-examination.
5. Therefore, on 17-7-1988 her side was closed and her affidavit was struck off.
6. ' The learned Controller while deciding the application had settled the following issues:--
(1) Whether the opponent has committed default in paymet of the monthly rent as alleged?
(2) Whether the opponent had sublet the tenancy premises?
(3) Whether the applicant requires the tenancy premises in good faith for the use and occupation of his son/sons?
(4) What should the order be?
7. ' After hearing learned counsel for the parties and taking into consideration the evidence brought on record, learned Controller decided issues Nos, 1 and 2 in the affirmative and issue No,3 in the negative and consequently allowed the ejectment application.
8. ' Mr. Mahfooz-ul-Haq learned counsel for appellant contended that the finding of learned Controller that appellant committed default is illegal, contrary to record, and unjustified.
9. Elaborating it, he submitted that the rent for which the appellant has been adjudged as defaulter, was beyond the period of three years and could not be termed 'as rent due', therefore, the respondent could not file eviction application in respect of the default, if any, committed three years prior to the filing of the eviction application. In support of above contention he cited Mst.
10. Hashmi Begum v. Mst. Aliya Zohra Begum 1985 M LD 1514. The scope of phrase "all rents due" was examined by the Supreme Court in the case of Ashfaq-ur-Rahman v. Ch. Muhammad Afzal reported in PLD 1968 SC 230, wherein it was held by their Lordships that a Rent Controller acting under section 13 (6) of the West Pakistan Rent Restriction Ordinance, 1959, could not direct the tenant to deposit the rent in respect of which legal remedy to recover it had become time-barred under the Statute of Limitation. Rule laid down in above-quoted case was followed in Mst. Hashmi Begum's case mentioned earlier. In view of the law laid down by the Hob'ble Supreme Court in Ashfaq-ur-Rehman's case there can be no dispute about the proposition of law that time-barred rent cannot be recovered, but this contention by itself is not material for the present case. The claim in the present case is not restricted to time-barred rent, but it also includes the rent payable from the period starting from 29-11-1981 viz. Three years prior to the filing of eviction application.
11. Under these circumstances, the contention that appellant has not committed default in payment of rent is incorrect. She had committed default in respect of rent due from 29-11-1981. After every month from above date a fresh cause of action accrued to respondent. In support of her claim that she paid rent regularly, the appellant has brought on record photostat copies of two receipts. One is dated 15-1-1985 and is for Rs,200 and the other is dated 31-12-1985 and is also for Rs,200. Both these receipts are inadmissible in evidence. Their contents as required under law have not been proved. Besides, both these receipts do not show that for which period they stand for. The finding of learned Controller on the point of default is perfectly correct and no exception can be taken to it. In rent cases initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due against him, and since non-payment of rent, as held by Hon'ble Supreme Court in PLD 1982 SC 465 Allah Din v. Habib is a negative fact, therefore, if the landlord appears in Court and states that he has not received the rent, it would be sufficient to hold that he has discharged his burden of proof. In the case in hand, the respondent in his affidavit-in-evidence clearly stated, in para. 5, that the appellant was a chronic defaulter and she failed/neglected to pay tender rent from May, 1976. It is noted that for the purpose of this matter, it would be considered that the rent due was from 29-11-1991.
12. ' Learned counsel for appellant also argued that learned Controller failed to provide sufficient opportunity to appellant to prove her case. He has also submitted that the Rent Controller, without any justification, on 17-7-1988 closed the side of appellant and on that day there- was heavy rain.
13. This contention of appellant is also without any force. The affidavit-in-evidence was filed by appellant on 7-8-1986 and since then up to 17-8-1988 a period of morethan two years had passed and during this period she did not appear in Court for cross-examination. In fact, as the circumstances show, this was deliberate on her part as she only wanted to prolong the proceedings as much as possible. The default committed by her was wilful and it was of such a nature that neither it could be satisfactorily explained nor camouflaged. Therefore, she felt satisfied by delaying the final verdict. Under such circumstances, it cannot be said that her side was wrongly closed. On the contrary, this should have been passed much earlier.
14. ' Learned counsel for appellant has also challenged the finding of learned Controller on the point of subletting and contended that there was no justification for recording such finding. This plea of the appellant is correct. In the eviction application, the respondent only stated that appellant had handed over the possession of the premises to some one else. This assertion, in the same words, was repeated in the affidavit-in-evidence. It is a vague allegation. Neither the approximate date of subletting is given nor the name of the sublettee is disclosed and nor any other details about said subletting have been provided. On vague allegations finding in affirmative can not be recorded.
15. Initial burden of proving this fact was on respondent, which he failed to discharge. The finding of the Controller on this issue is reversed.
16. ' Learned counsel for appellant has also submitted that, in case of dismissal of appeal, sufficient time be granted to appellant for the purpose of vacating the premises in question. This plea is justified and reasonable time will be given to her.
17. ' In consequence, the appeal is dismissed with cost. Three months' time is given to appellant from now for handing over the vacant possession of the premises in question to respondent.