1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 23-12-1990 in Rent Case No,1459 of 1988 Azmatullah v. Abdul Majeed Khan and another whereby an ejectment application filed by the respondent Azmatullah under section 15 of Rent Ordinance on the grounds that he required the premises in question for his personal bona fide use and further the respondent No,2 Abdul Majid who was the tenant of premises has committed default in the payment of rent since March, 1987 to October, 1988 and further has handed over the possession of premises to the appellant Muhammad Anwar the learned Rent Controller ordered the eviction on all the grounds with the direction to the appellant who was passed on possession by the respondent No,2 to hand over the vacant possession within sixty days to the respondent/landlord.
2. ' Brief facts of the case are that the respondent Azmatullah filed initially eviction application on the above-stated grounds under section 15 of the Rent Ordinance on 22-10-1988 against respondent No,2 but thereafter through amended ejectment application, the appellant Muhammad Anwar was joined as opponent No,2 having occupied in the disputed premises through the tenant Abdul Majid.
3. The respondent No,2 filed separate written statement stating therein that the companion of the respondent No,1 have already occupied the premises at his instance after he was dispossessed.
4. The appellant filed separate written statement wherein he stated that he was the tenant in possession at the rate of Rs,1,000 per month from January, 1988 and was not defaulter in the payment of rent. Rest of the statement made in the ejectment application was also denied by the appellant.
5. ' The respondent Azmatullah filed his affidavit in evidence and produced a counterfoil rent book, letter dated 29.2.1988 written by the respondent No,2 to, the respondent No,1 photocopy of Plaint Suit No,787 of 1988 filed by Abdul Hafeez son of Abdul Majid against Muhammad, photocopy of notice dated 8-8-1988 from the respondent No,1 to the respondent No,2 and photocopy of reply dated 8-9-1988 of above notice and again reply dated 25-9-1988 from the respondent No,1 Appellant Muhammad Anwar filed his affidavit in evidence and produced certified true copy of written statement filed in Suit No,787 of 1988 Exh.6, photocopy of Rent Receipt No,4 dated 8-1-1988 Exh.17 issued in the name of Hafiz Glass Works filed in affidavit in evidence of Abdul Majeed. The deponents who filed the affidavit in evidence were cross-examined by respective learned counsel of the parties and after hearing, the arguments impugned order was passed.
6. ' Learned counsel for appellant has argued that personal need of the respondent No,1 is not bona fide one as the respondent has attained the age of more than 70 years, therefore, he is not fit to run the business and the appellant was ready to enhance the rent. No other argument is advanced in support of the said contention. Being old man is no bar for the landlord to get the possession of the premises if law entitles him to get the possession from the tenant. The respondent No,1/applicant in the eviction application has stated about his bona fide requirements and the said statement has been reiterated in his affidavit in evidence and the said statement has not been challenged in the cross-examination either by the appellant or by the respondent No,2 Abdul Majid. Even the appellant and respondent No,2 in the cross-examination stated that they were unaware if the respondent No,1 needed the said premises for his bona fide need. They did not suggest in the cross-examination that the need was not based on good faith. There is no rebutting evidence to the statement made by the respondent landlord and the evidence of the respondent/landlord could not be shaken in the cross-examination so far his personal requirement in respect of shop is concerned. I do not find anything illegal or wrong with the finding arrived at by the learned Rent Controller, hence the said finding is unexceptionable and is hereby maintained.
7. ' Next contention of the learned counsel for appellant is that the original tenant M/s. Hafiz Glass Works sold out business to the appellant in the month of January 1988 for the consideration of Rs,two lacs subject to enhancement of rent to the landlord with the consent of the respondent/landlord therefore appellant became tenant of the premises.
8. ' It is admitted by the appellant as well as by respondent No,2 Abdul Majeed that the appellant is in possession of the disputed premises. It is also admitted by the appellant that initially the respondent No,2 Abdul Majeed of M/s. Hafiz Glass Works was tenant who passed on the possession of the disputed premises to him on payment of Rs,two lacs with the consent of the respondent/landlord. As per evidence of the appellant that he came into possession of the disputed premises through original tenant, the onus to prove that he became tenant of the premises in question of the respondent shifted upon him but he has failed to discharge the said onus and has failed to controvert/rebut, the confidence-inspiring evidence of the respondent/landlord that the opponent came to possession of the premises with the consent of respondent/landlord. Reference may be made to Masroor Hasan and another v. Abbas Ali Khan 1981 CLC 669 wherein learned Judge in chambers held that when it is proved by the landlord that someone else exclusively or jointly is using rented premises with the tenant, burden of proof would be shifted on the tenant to explain relationship between him and user of tenement. No agreement or consent in writing of the landlord has been produced by the appellant to prove the same.
9. ' In the instant case, no reliable evidence has been produced to prove his tenancy rights with the respondent/landlord. Besides mere purchase of business by the appellant would not confer tenancy rights in his favour in absence of express consent of the respondent/landlord. The respondent/landlord has succeeded in proving that the appellant came into possession of the premises in question through original tenant without his consent. Reference may be made to Abdul Hamid v. Mrs. Perveen Fareedoon and others (PLD 1983 Karachi 168). Nothing wrong has been pointed out with the finding on this issue No,3 given by the learned Rent Controller, consequently, no exception could be taken to the said finding which is hereby upheld.
10. ' The last contention of the learned counsel is that the appellant took over possession in January, 1988 and then he gave advance rent of three years from January, 1988 to December, 1990 amounting to Rs,36,000 at the rate of Rs,1,000 to the respondent/landlord, therefore, the appellant was not defaulter in the payment of rent. In support he has referred to a photocopy of receipt Exh.17. It will not be out of place to state here that the appellant has failed to prove his tenancy rights with the respondent/landlord as held above as there has been no consent of the landlord to treat the appellant his tenant of the disputed premises. The appellant in the written statement Exh.3-A filed on 7th September, 1989 did not state about the fact that he had paid advance rent from January, 1988 to December, 1990 amounting to Rs,36,000 and has obtained such receipt. So far affidavit in evidence of appellant in para.11, he has stated the said fact of having paid advance rent for three years amount of Rs,36,000 under a receipt, though stated that same have been annexed, but the copy of the said receipt has not been filed or annexed with the affidavit in evidence. The appellant had filed a written statement in Suit No,787 of 1988 filed by Abdul Hafeez the proprietor of Hafiz Glass Works but has not stated that he had paid the rent for three years from January, 1988 to December, 1990 and had obtained a receipt for the same. It would not be out of place to state here that the appellant could have given notice to the respondent/landlord to produce the counterfoil of the said receipt Exh.17 so as to confirm if it was issued from the book of receipts lying with the respondent/landlord. In the circumstances adverse presumption under the law would be drawn that the said receipt about the payment of rent for three years was not genuine as he failed to secure the best possible evidence in support and in confirmation of his defence with regard to payment of advance rent allegedly paid by him. The appellant even did not ask for before the Rent Controller to seek expert opinion on the said document in respect of signature of the respondent with his admitted signature. At this stage in appeal he has taken up the plea that he is prepared to pay costs for sending the said document for comparison and opinion of the expert against the admitted signature of the respondent/landlord. This plea was never raised earlier, not even in the written statement, therefore, this plea cannot be permitted to be agitated here keeping in view also the fact that this document is not genuine having been prepared after cross-examination of the respondent/landlord. Reference may be made to Darul Uloom Naieemia Trust v. Munir Ahmed 1974 CLC 3483 at page 3485 wherein learned Judge in Chambers held that when tenant has not relied upon on a plea in his written reply to ejectment application, no amount of evidence could be looked into with respect to such plea.
11. ' In the affidavit in support an application under Order 1, rule 10, C.P.C. The appellant stated that he was in physical possession of the shop in question since 1987 whereas before me as well as in the written statement and affidavit in evidence he has stated that he was put into possession from January, 1988. No rebutting evidence has beer produced by the appellant or by the respondent No,2 to show that the rent was paid to the respondent No,2 from March, 1987 onwards. There is no dispute to the fact that the respondent was not issuing rent receipts and in case rent receipts were being issued from March, 1987 onwards the primary evidence could have been asked for by the appellant as provided under the Qanun-e-Shahadat so as to disprove the statement of the respondent/landlord about the non-payment of rent to him.
12. ' On the whole, the assessm ent of the evidence would show that the respondent/landlord has proved that the respondent No,2 Abdul Majeed of M/s. Hafiz Glass Works has passed on possession of premises in dispute to the appellant without consent of the respondent/landlord and the tenant Abdul Majeed respondent No,2 failed to tender rent from March 1987 onwards to the respondent/landlord and that the respondent/landlord has proved his need in good faith. No satisfactory reliable rebutting evidence has been adduced by the appellant and the veracity of the respondent/landlord could not be shaken on all the issues. Accordingly, there in no merit in the appeal which is hereby dismissed. However, one month's period is given to the respondent No,2 (who is in symbolical possession) as well as to the appellant to vacate the premises and hand over possession of the same to the respondent/landlord.