' This appeal under section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 is directed against the Order, dated 30-9-1997 passed by Civil Judge-II-Cum Rent Controller, Quetta whereby Eviction Application filed by the appellant was dismissed.
2. The facts in brief are that the appellant filed an Eviction Application in the Court of Civil Judge-II- Cum-Rent Controller, Quetta on 30-8-1995 in respect of House No,5 situated at Rani Bagh, Quetta on the ground of default and personal requirement. It is averred in the Eviction Application that the premises in dispute is required by the applicant for her personal use and occupation as she resides in Karachi and does not own any house at Quetta and wants to shift at Quetta alongwith her children and husband. It has also been averred that the respondent has failed to make payment of rent w,e,f, September, 1993 till filing of the application. Respondent filed his written statement on 20-11-1995 and contested the application. Out of the pleadings following issues were framed:---
(1) Whether the application is not maintainable in view of preliminary objection ' A' of the written statement?
(2) Whether the applicant required the premises in dispute for personal bona fide use and occupation?
(3) Whether the respondent failed to tender rent from September, 1993 to date?
(4) Whether respondent damaged the house in question by breaking doors and windows and electricity etc.
(5) Whether the applicant is entitled to relief claimed for?
(6) Relief.
3. In support of the application, the appellant produced A.W.1 Muhammad Younas, A.W.2 Amir Nazeer and Shabbir Ahmad appeared as Attorney for the appellants. In rebuttal respondents produced R.W.1 Ehsan-ulHaque, R.W.2, Muhammad Akram and statement of respondent was recorded. After hearing the parties, the learned Civil Judge-Cum-Rent Controller-II, Quetta dismissed the application vide order, dated 30-9-1997; hence this appeal.
4. I have heard Mr. Anwar-ul-Haque, Advocate for the appellant and Ayyaz Sawati, Advocate for the respondent.
5. Mr. Anwar-ul-Haque, learned counsel for the appellant emphatically stated that the learned Rent Controller dismissed the application on the sole ground that the landlady had not appeared in the witness-box to prove her bona fides whereas personal bona fide use of the landlady has been independently proved through evidence and the learned Rent Controller has not taken into consideration the statement of witnesses produced by the appellant landlady. The learned counsel further contended that the appellant proved that respondent had failed to tender rent but the learned Rent C9ntroller has wrongly decided the question of default in favour of the respondent- tenant.
6. Mr. Ayyaz Sawati, learned counsel for the respondent argued that the learned Rent Controller rightly dismissed the Eviction Application on the ground of personal requirement as the same was not proved through the statement of landlady or any of her sons. As far as the question of default is concerned, the learned counsel contended that the appellant failed to prove that respondent had committed default in payment of rent.
7. I have heard the learned counsel for the parties and have also perused the record.
8. Adverting to the arguments of Mr. Anwar-ul-Haque, Advocate for the appellant regarding personal requirement, it may be observed that the learned Rent Controller decided the issue of personal requirement against the appellant on the ground that neither the appellant nor her children appeared in the witness-box to prove their personal requirement and the learned Rent Controller has not taken into consideration the evidence produced by the appellant. The appellant has produced two witnesses who have categorically stated that the appellant wants to shift to Quetta alongwith her children as she is now residing at Karachi and has no other house at Quetta.
The facts deposed by the witnesses and the Attorney of the appellant have independently proved the factum of appellant having no other house besides the house in dispute at Quetta but the learned Rent Controller while deciding the issue of personal bona fide requirement has totally discarded the statements of the witnesses produced by the appellant. Moreover, it is not a requirement of law that landlady should come and depose about her personal requirement. The Attorney who appeared before the Court has deposed about the personal requirement of the appellant and her children. The statement of the Attorney was not shaken. Thus, in the light of; the above discussion it becomes clear that the learned Rent Controller has wrongly decided the question of personal requirement against the appellant. Reliance is placed on Arshad Umar and another v. Begum Nazrul Askari, PLD 1985 SC 38. In the above-cited case, in similar circumstances as in the case in hand where the landlady did not appear before the Court, it was held by his Lordship Justice Nasim Hasan Shah, as he then was, as follows:--- "In these circumstances we cannot appreciate why the Rent Controller was not satisfied about the bona fide need of the landlady to get possession of her house and the learned Judge in the High Court was, therefore, fully justified in setting aside the erroneous view taken on this point by the Rent Controller. In fact this Court has in several cases held that the order of eviction of a tenant cannot be challenged on the ground of failure of the child to appear in the Court for whose benefit the landlord is seeking eviction of the tenant and his omission to appear before the Rent Controller to depose about the said need is not fatal."
9. Reverting to the next contention of Mr. Anwar-ul-Haq, learned counsel for the appellant that the appellant had proved that the respondent had committed default w,e,f, September, 1993 till filing of the Eviction Application i,e,, on 30-8-1995. Attorney for the appellant clearly stated that the respondent has failed to make payment of rent w,e,f, September, 1993. In cross-examination he was only asked that the appellant refused to receive the Rent from September, 1993. It is settled that when the landlord alleges default and states that the tenant has failed to make payment of rent, burden shifts upon the tenant to show that he has not committed any default. From the perusal of the record, it reveals that the respondent in his statement before the Court did not say a single word about default. However, in cross-examination when he was asked about the default he stated that since September, 1993 he has been depositing the rent in the Court. From the perusal of the record of the lower Court, it is revealed that the rent from the month of September, 1993 up to May, 1994 was deposited on 9-5-1994. It may be mentioned here that after the allegation of default by the landlord in his statement, the onus shifted upon the tenant to prove that he has not committed any default but the respondent failed to produce any document on record to show that the rent for September, 1993 was paid to the appellant or she refused to accept the same. Only rent challan has been placed on record showing therein that rent from September, 1993 up to 1994 has been deposited in May, 1994 which clearly shows that the respondent committed default in payment of rent. The Rent Controller while deciding the issue of default has only held that the appellant maliciously refused to receive the rent and respondent has produced challan of rent which shows that rent has been paid up to October, 1994. The findings of the Rent Controller on the question of default are erroneous. The learned Rent Controller has not taken into consideration as to when the rent for September, 1993 as alleged by the appellant was deposited. Mere production of rent challan is not sufficient to prove that rent has been deposited. The tenant is under a legal obligation to prove that no default has been committed by him specifically when the ground of default has been agitated by the landlady. As stated above, respondent deposited rent for September, 1993 in the year, 1994, therefore, the tenant had failed to show that he had deposited the rent within 60 days of alleged default. Thus, it is held that the respondent committed default in payment of rent.
10. The upshot of the above discussion is that the appeal is accepted and the Eviction Application filed by the appellant is allowed. Respondent is directed to hand over the vacant possession of the house in dispute to the appellant within a period of two months. Parties are left to bear their own costs.