1. ' This First Rent Appeal is directed against the judgment, dated 14-1-1998 passed by learned First Senior Civil Judge and Rent Controller, Nawabshah in Rent Application No,8 of 1994, whereby learned Rent Controller allowed the ejectment application filed by the respondents against the appellant.
2. ' Brief facts giving rise to this appeal are that the respondents/landlords are owners of shop bearing City Survey No,A-1572 situated in Mohalla Manuabad near Abdul Qadir Parik, Nawabshah.
3. The shop was let out to the appellant at monthly rent of Rs,350 per month. The shop was rented out for the period of 11 months and, thereafter, it was being extended from time to time. The rent was subsequently enhanced from Rs,350 to Rs,400 and from Rs,400 to Rs,500 with effect from 1-1-1988 and 1-1-1990 respectively. The Rent was paid up to August, 1991, Thereafter, the appellant declined to pay rent and was keeping the respondents on hopes. The respondents/applicants further stated in their ejectment application that they demanded premises from the appellant for their bona fide personal use. The appellant was keeping them on hopes up to March, 1993 to vacate the premises as well as to pay them the outstanding dues against him. The respondents asserted in their application that they made preparation for installation of wood fixtures and fittings for which they made necessary purchases and the said material is said to be still lying with them. The appellant did not stand by his commitment and was on the contrary annoyed. The respondents, therefore, initiated proceedings against him under sections 107 and 151, Cr.P.C., before Mukhtiarkar and FCM, Nawabshah. The appellant, thereafter, in order to conceal his default started depositing rent in the Court from 1993 under section 10 of Sindh Rented Premises Ordinance, 1979.
4. ' The appellant/opponent filed his written reply wherein he denied the fact that the rent was enhanced from Rs,400 to Rs,500 with effect from 1-1-1990. He denied the non-payment of rent from August, 1991 and the subsequent default in payment of rent. Likewise he denied to have made any promise with the respondents to vacate the premises. The appellant denied the fact that respondents needed the premises for their personal use in good faith. He, however, admitted the fact that proceedings under sections 107 and 151, Cr.P.C., were initiated against both the parties. He pleaded that the respondents refused to receive rent and, thereafter, he deposited the same in Court after the respondents refused to accept the rent through money order. He stated that the ejectment application was misconceived and is filed with mala fide intentions.
5. ' The respondents/applicants in support of their case filed affidavit-inevidence of appellant Muhammad Shafi as Exh.27. The respondent examined P.W. Muhammad Nadeem as Exh.30, Muhammad Siddique Exh.31, Iqtidaruddin Exh.32.
6. ' The appellant Abdul Razzak filed his affidavit as Exh.38. He examined D.W. Abdul Ghafoor Exh.102, and Tahir Ali Exh. 104 .
7. ' On the pleadings of the parties the Court framed the following issues:---
(1) Whether opponent being tenant of the applicant has committed Wilful default in making no payment of rent to the landlord without any reasonable cause?
(2) Whether the applicants need the premises for their personal bona fide use in good faith?
(3) What should the decree be?
8. ' The learned Rent Controller ultimately came to the conclusion that the appellant was defaulter in depositing the rent and the premises in question were required to respondents for their personal bona fide use.
9. ' It is contended by Mr. Jhamat Jhethanand learned counsel for the appellant that the rent was paid up to February, 1993 and from March, 1993, the rent was refused and, thereafter, it was sent to them through money order which the respondents declined to receive and, thereafter, the appellant deposited the rent in Court. It is stated that there was no trend to issue rent receipts. The pleas raised by the respondents in their rent application and the affidavits are inconsistent to each other. It is argued that the learned Rent Controller has not considered the discrepancies in the evidence adduced by the respondents/applicants. It is pleaded that money order receipts produced on record have not been considered properly and rent was duly paid to the landlord and subsequently when they refused to receive the same, it was sent through money order and subsequently it was deposited in Court. The learned counsel further argued that the premises in question are very small and the same is not required to the respondents for their personal bona fide use. It is next argued that shop required by Nadeem is not pleaded in the ejectment application, nor the business proposed to be started is specified in the ejectment application. The learned counsel refers to cases Ghulam Akbar v. Abdul Rashid 1991 CLC 959, Fasih Hashmi v.
10. Muhammad Rafiq 1990 CLC 1218, Rahimuddin v. Munny Khan 1989 CLC 994, Fazal Hussain v. Mst.
11. Bundu Hajjan 1991 MLD 651, Mansoorul Haq v. Akbar Ali 1994 CLC 48, Noor Muhammad v. Zamir Ahmed Qidwai 1994 CLC 1751.
12. ' Mr. Raja Khan learned counsel for the respondents has argued that the appellant had made wilful default in payment of rent since August, 1991 and was keeping the respondents on false hopes. He ultimately promised to vacate the premises, and make the payment of dues outstanding against him but he failed to do so. He argued that even in this Honourable Court the appellant had failed to deposit rent in time and disobeyed the order passed on 5-10-1998. The appellant was required to make payment of arrears within one month but he deposited the amount after 43 days and as such committed default of 13 days in depositing the arrears. It is contended that the respondents have adduced the evidence on oath in regard to default and the appellant has failed to rebut the same. It is argued that the respondents did not own any shop and the same is required for running a medical business for respondent Nadeem son of respondent No,1 (Muhammad Shafi). It is pleaded that Nadeem is at present running business in rented shop belonging to P.W. Iqtidaruddin.
13. It is contended that there is no other shop with the respondent and, therefore, he is running his business in a shop belonging to P.W. Iqtidaruddin. Mr. Raja Khan the learned counsel for the respondent has made a reference to cases Allah Din v. Habib PLD 1982 SC 465, Mursaleen v.
14. Ghulam Sarwar through heirs and another 1991 SCMR 2042, Muhammad Subhan and another v.
15. Mst. Bilquis Begum through Legal Heirs PLD 1994 Karachi 106. Feroz Khan v. Syed Soha 1996 CLC 949, Saeedur Rehman Khan v. Islam Bari Siddiqui 1998 MLD 982, Muhammad Hussain v. Saleh Muhammad 1998 MLD 1115.
16. ' The ejectment is sought on the ground of default and personal use in good faith. On the point of default applicant Muhammad Shafi has examined himself and P.Ws. Muhammad Siddique and Iqtidaruddin have supported him. No doubt initially burden of non-payment of rent lies upon landlord but when this fact is stated by him on oath which gets support from other P.Ws. Then the burden is sufficiently discharged and it shifts on tenants to prove it affirmatively that he paid the rent. In the instant case Muhammad Shafi has reiterated the fact that appellant had failed to pay the rent from September, 1991 and onwards. This fact gets support from the evidence of aforesaid two P.Ws. Muhammad Siddique and Iqtidaruddin. All of them have stated on oath and the appellant has failed to rebut their testimony. The reference is made to Allah Din v. Habib PLD 1982 SC 465, wherein it is held that:- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would he sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question."
17. ' The reference may be made to cases of Mursaleen v. Ghulam Sarwar through heirs and another 1991 SCMR 2042, Muhammad Subhan and others v. Mst. Bilquees Begum through Legal Heirs PLD 1994 Karachi 106, Feroz Khan v. Zoha 1996 CLC .949, Muhammad Hussain v. Saleh Muhammad 1998 MLD 1115.
18. ' The case of appellant is that he paid rent up to February, 1993, but he has failed to substantiate this plea. No receipt is produced for payment of rent.
19. ' In view of the above, the appellant has failed to pay the rent to respondents from September, 1991 and onwards and has committed default in clear terms.
20. ' The next point to be resolved is whether premises in dispute are required for the personal bona fide use of P.W. Muhammad Nadeem son of applicant No, 1 . The same aforesaid P.Ws. Have deposed on this point. P.W. Muhammad Nadeem has been examined on oath. He has testified that the disputed premises are required by applicant for his personal bona fide use. He stated that he is running business of medical store in a rented shop. The remaining PWs., applicant No,1 Muhammad Shafi, Iqtidaruddin and Muhammad Siddique have supported the version of applicant. The testimony of aforesaid witnesses has not been shattered, and inspires confidence. The appellant has failed to prove that the opponents owned any other premises in the vicinity. On the contrary it has come on record that Muhammad Nadeem is running business in a rented shop. This fact alone is sufficient to attract the factum of personal bona fide use. Admittedly they are businessmen and did not own any other shop except the one which is under dispute. The plea that shop, if vacated would not be used by the landlord has no force as in case the same is not used by them, the remedy lies with the appellant in Sindh Rented Premises Ordinance, itself. The above-stated views get support from Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442, Muhammad Jameel, etc. v.
21. Zahoor Ahmed 1986 SCMR 1088, Mumtaz Hussain v. Muhammad Iqbal 1984 SCMR 575, Dr. Major Abdul Hadi Khan v. Soofi Muhammad Yasin and Brothers PLD 1984 SC 200.
22. In view of the aforesaid factual and legal position, the impugned judgment is neither perverse nor illegal and does not call for interference. The learned Rent Controller has rightly held that shop in question is required to the opponents for their personal bona fide use. Consequently F.R.A. No,9 of 1998, is hereby dismissed alongwith listed applications with no order as to costs. The appellant is directed to hand over vacant possession to respondents within sixty days but this would be subject to payment of rent according to law.