1. ' This First Rent Appeal is directed against order dated 9-9-1989 passed by learned Controller, Hyderabad directing eviction of the appellant from the demised premises on the ground of default in payment of rent and personal requirement of the premises for bona fide use and occupation of the son of the respondent.
2. ' Appellant is the tenant of the respondent in respect of shop C.S. NoA-1/63 situated in Sarfraz Colony, Hyderabad since 28-11-1979 on a monthly rental of Rs,200. There is no agreement of tenancy in writing between the parties. Ejectment of the appellant was sought on two grounds, firstly, default in payment of rent with effect from December 1984 and secondly personal requirement of the shop for bona fide use and occupation of the son of the respondent who was said to be jobless and wanted to start his independent business.
3. ' Appellant resisted the eviction proceedings and in his written statement asserted that rent had been paid up to May 1987 but the respondent never issued any receipt for payment of rent since the inception of the tenancy. He further stated that rent for the month of June 1987 was sent by money order but it was refused. Appellant therefore started depositing rent in Miscellaneous Rent Application No, 224 of 1987 since 19-7-1987 and after the institution of eviction application he has been depositing rent in the rent application.
4. ' Both the parties adduced evidence in support of their respective contentions. While the respondent examined himself and his son Saleem appellant bedsides appearing himself in evidence examined three witnesses, namely, Qadir, Abdul Sattar and Rafiq Ahmed.
5. ' Following issues were settled by the Rent Controller for decision: Issues "(1) Whether opponent is wilful defaulter in payment of rent from December 1984 onwards?
(2) Whether shop in question is required by the applicant for personal bona fide use of his elder son Saleem?
(3) Whether Rs,5,000 are lying with applicant as deposit?
(4) What should the order be'?"
6. ' Upon assessm ent of the evidence and hearing learned counsel for the parties learned Controller decided issues relating to default and personal requirement in favour of the respondent. On issue No,3 he held that appellant had paid Rs,2,000 by way of advance to the respondent. Consequently he ordered ejectment of the appellant which has been impugned in this appeal.
7. ' At the hearing of the appeal, learned counsel for the appellant advanced his arguments while the respondent and his Advocate remained absent without any intimation.
8. ' From the evidence on record I find that respondent had pleaded that he had let out the shop for a fixed period of four years and that the appellant had promised to vacate the same on expiry of the above term. It is admitted position that both the parties are running Kiriana business and their shops are situated adjoining each other on the same city survey number. It is the case of the respondent that on expiry of period of tenancy he demanded vacant possession of the shop but the appellant kept him on false promises and high hopes and stopped payment of rent since December 1984. On the other hand appellant has denied these allegations and pleaded that terms and conditions of the oral tenancy were settled between the parties in presence of witness Qadir son of Farid Bux. It is the case of the appellant that it was agreed between the parties that he shall pay rent regularly without obtaining any receipt in writing and in the event of non-payment thereof matter shall be decided through arbitration of said Qadir son of Farid Bux whose decision shall be final.
9. As to the non-payment of rent I am of the view that primary burden of establishing default would lie on the respondent and after the discharge of onus, by him, it would shift to the appellant to show that in fact there was no default and that the rent had been duly paid. It has been consistent stand of the appellant throughout the proceedings that no rent receipt was issued by the respondent in his favour at any time though rent was regularly paid. Respondent All Muhammad admitted in this evidence that terms and conditions of tenancy were settled in presence of Qadir who is brother-in-law of the appellant. In his affidavit in evidence he asserted that appellant had committed wilful default in payment of rent since December 1984 without stating whether he had been issuing receipts for the payment of rent before the crucial date. In the circumstances I am of the considered view that appellant having pleaded this ground in his written statement it was imperative for the respondent to deny this fact in his affidavit in evidence but he did not do so. His silence on this aspect of the case would justify a reasonable inference that the stand. Taken by the appellant was correct and could not be controverted. This question was put to the respondent during his cross-examination when he wrongly claimed that he used to issue receipts to appellant after receiving rent from him and that he had issued receipts up to November 1984. However, he has not affirmed this fact in his affidavit in evidence. He falsely denied the suggestion that he had not stated this fact in his affidavit in evidence which would militate against his bona fides. On the other hand appellant has consistently pleaded and affirmed on oath that he had regularly paid rent to the respondent up to May 1987 in presence of witnesses Abdul Sattar and Rafiq Ahmed. Both these witnesses have supported the version of the appellant in material particulars and notwithstanding the circumstances that their presence on all occasions throughout the period might appear to be unusual, fact of the matter remains that appellant has been successful in substantiating his plea that rent had actually been paid up to May 1987. Evidence of appellant's witnesses has not been seriously shaken during the cross-examination but for the sake of argument even if their evidence is excluded from consideration testimony of appellant by itself is sufficient to hold that rent had been regularly paid but the respondent had omitted to issue the receipts therefor. Indeed there has been no cross-examination to appellant on the point relating to non-issuance of rent receipts by respondent which by implication of law is deemed to have been admitted.
10. ' There is another aspect of the case. Admittedly both the parties are doing their business in adjoining shops. In case the appellant had committed default in payment of rent with effect from December 1984 as alleged there was no good and convincing reason on the part of the respondent to keep silent for a period over 2-3/4 years as the eviction application was filed for the first time on 23-8-1987. Besides no notice was issued to the appellant calling upon him to pay rent. Silence of the respondent for 33 months over the matter would speak for itself. In the circumstances it is difficult to believe that there was charonic default in payment of rent for such a long period yet the respondent remained silent and did not lodge any protest or grievance against the appellant.
11. ' Learned counsel appearing for the appellant has referred to section 10(2) of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) urging that under this provision of rent laws landlord was required to acknowledge receipt of rent in writing and it was incumbent upon him to do so. Be that as it may, tenancy between the parties was oral and not reduced to writing as required by section 5 of the Ordinance which is also permitted under the law.
12. ' In support of his contention that where there was word against word as regards payment or otherwise of rent version given by the tenant shall be preferred learned counsel has relied upon the case of Rahimuddin v. Munny Khan (1989 CLC 994). This submission of the learned counsel is not without any substance and is supported by the view taken in the above case in which the view taken was that admittedly no receipts were being issued by the respondent and hence mere word of respondent qua the words of the appellant could not be given any more weight particularly when respondent did not make a mention of this fact of the alleged default of August to November 1978 on any of the coupon of the money orders sent by the appellant to him. Reference may also be made to the case of Fayazi Begum and others v. Zakiuddin (1986 CLC 1280) in which Salim Akhtar, J. (as his Lordship then was) held that in cases where the landlord claims that the tenant has defaulted in payment of rent initial burden is upon him to establish that a default has been committed. In the context of the reported case it was observed that once a landlord pleads that he had been issuing receipts to the tenant and the same is denied by the latter then the burden is upon the landlord to establish that such receipts were issued as and when the occasion arose. In the reported case tenant had taken a consistent stand that the landlord had never issued any receipt of any type for the last nine years. Landlord had not been able to establish that receipts were issued by him. In a situation where allegation is made that receipts were issued but had not been proved there remained word against word and therefore the Court while determining the question of default has to consider the circumstances, the conduct of parties and any other relevant evidence that may be available.
13. ' Reverting to the issue relating to bona fide personal requirement of the shop for the use of respondent's son Saleem who was grown up and jobless and wanted to start his independent business in my view respondent has been able to make out a good case for eviction of the appellant on this ground. Besides consistently pleading this case he has furnished his own evidence as well as the evidence of his son Saleem. His son Saleem in his evidence testified that he is jobless and wants to open his independent business in the shop presently in occupation of the appellant. During his cross-examination he stated that there are three brothers but none of them has any other source of income and they depend upon the income of their shop for their livelihood.
14. He expressly denied the suggestion that he did not require the shop in question as he was already busy with his father in the business. Likewise respondent in his evidence categorically and emphatically stated that he requires the shop in occupation of the appellant for bona fide personal use of his elder son Saleem who is grown up and jobless as he wants to start his own independent business in the demised premises. He has unequivocally denied that the shop was not required for the use of his son or that the latter was receiving education or he had no experience of business.
15. Notwithstanding denial of the respondent's case by the appellant in his evidence and in the evidence of the witnesses examined by him I am of the definite view that the need of the respondent in respect of the demised premises is genuine, bona fide and in good faith. He has successfully stood the test of lengthy cross-examination and established beyond doubt that he needs the shop for setting his elder son who would start his independent business in the said shop.
16. Mere circumstance that one of the sons sits at the shop of the respondent and that business is conducted in two shifts by itself would not disentitle the respondent from seeking eviction of the appellant on this ground. There is preponderance of the view that a landlord is entitled to freely enjoy and use his property without any unreasonable restriction. I am therefore of the view that learned Controller was right in directing eviction of the appellant on this ground though there has been an error of judgment in finding the appellant in default in payment of rent.
17. ' Leaned counsel for the appellant has referred to a large number of cases namely 1984 CLC 2469, 1984 CLC 2332, 1985 CLC 2455, 1985 CLC 1077, PLD 1985 Kar. 714; 1986 CLC 1100, 1986 CLC 2628; 1988 CLC 1041; 1988 CLC 1343; 1989 CLC 1360; 1989 CLC 287 and 1990 CLC 1064 which no doubt decided the point against the landlord but the facts and circumstances in each of the reported cases are different and of no assistance to the appellant. On the contrary the view taken in Qamruddin through Legal Heirs v. Hakim Mahmood Khan (1988 SCM R 819), Khawaja Imran Ahmed v. Noor Ahmed and another (1992 SCM R 1152), Agaria Amir Ali v. Abdul Majid (1993 SCM R 67) and Muhammad Iqbal and another v. Mst. Saeeda Bano (1993 SCMR 1159) by Honourable Supreme Court supports the case of respondent.
18. ' In the result while setting aside the finding of the controller on the issue relating to default I would dismiss the appeal. In view of old tenancy of the appellant he is allowed 120 days' period to vacate the shop whereafter a writ of possession shall be issued without any prior notice to him.