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First Rent Appeal No.256 of 1984, decided on 2nd April, 1987.

---Ss.21, 10(2) & 14--Ejectment on grounds of non-payment of rent and personal requirement--Landlord admittedly not issuing receipts for payment of rent in accordance with law, tenant could not furnish any evidence, in writing, of payment of rent and standing absolved of responsibility by having made statement on oath--Evidence on record that landlord was in possession of major portion of shop in dispute and he had accommodated 2/3 other persons to work on Commission basis--Tenant, occupying a small portion of shop, held, had better claim of retaining tenancy as against persons working on Commission basis--Landlord, could by displacing persons working on Commission basis, expand his business without disturbing the tenant--Rent Controller, held, had rightly held that landlord had not established his bona fide need--Appeal dismissed.

P L D 1982 S C 465; 1980 C L C 316; P L D 1965 Lah. 23, 1986 C L C 395; 1985 C L C 2033 and 1983 C L C 2657 distinguished.

1980 C L C 316 and 1984 C L C 1843 cited.

Nizam Ahmad for Appellant.

Nasrullah Awan for Respondent.

Date of hearing: 2nd April, 1987.

The appellant Mohammad Ibrahim filed Rent Case No-660 of 1983 on 15-2-1983 for seeking eviction of the respondent Mushtaq from a portion of a shop No.4 on plot No.S.B.7/50-51, Mochi Gali, Saddar, Karachi, let out to him at the rate of Rs.45 per month, on the grounds that he i.e. the respondent had made default in payment of rent from November, 1982 and that the premises was bona fidely needed by the appellant for his own use. The respondent denied that he had made default in payment of rent. He also denied that the appellant needed the rented premises for his bona fide use. The appellant filed his own affidavit and that of his son Azhar Perwez, while the respondent filed his own affidavit. The learned Controller dismissed the application by the impugned order, dated 29-1-1984 holding that neither default in payment of rent was proved nor the appellant /landlord had made out a case of bona-fidely needing the premises for his own use.

The learned counsel for the appellant has urged that the appellant had alleged that the rent was not paid from the month of November, 1982 and the burden shifted to the respondent/ tenant to prove that he had paid the rent but he did not discharge the burden and, therefore, the Controller should have held that the respondent/ tenant was at default in payment of rent. He has relied upon a case reported in P L D 1982 S C 465. He has contended that the cases relied upon by the learned Controller viz. 1980 C L C 316 and P L D 1965 Lah.23 were not attracted on the facts of the case. According to him, the learned Controller wrongly placed burden of proof on the landlord /appellant in respect of payment of rent. As regards the ground of personal need, the learned counsel has urged that there is evidence of the appellant and his son that they need the rented premises for expanding their business on the sons joining the landlord in the business. He has placed reliance on the cases reported in 1986 C L C 395; 1985 C L C 2033; and 1983 C L C 2657 as supporting authorities. He has finally, contended that the learned Controller adopted erroneous approach to the case in dismissing the application.

On the other hand, the learned counsel for the respondent has argued that the appellant has admitted in evidence that he was not issuing the rent receipts and, therefore, the respondent/tenant could not produce any evidence in writing to establish payment of rent and, therefore, the burden of non-payment of rent lay on the appellant/landlord. According to him, the rent was paid by the respondent upto January, 1983 and the rent for the subsequent months offered /tendered by the respondent was refused. He has placed reliance on the cases reported in 1980 C L C 316 and 1984 C L C 1843 in respect of issuance of receipts. The learned counsel has further argued that the appellant/ landlord was interested in ejecting the respondent and, therefore, he conveniently took the plea of default in payment of rent from November, 1982.

The appellant advanced two grounds, one of non-payment of rent from November, 1982, and another of personal requirement of the premises for seeking ejectment of the respondent. The respondent contended that he had paid the rent upto January, 1983. The landlord has admitted in evidence that he was not issuing receipts for payment of rent. It is provided under clause-2 of section 10 of the Sind Rented Premises Ordinance. 1970 that the rent shall, as far as may, be paid to the landlord who shall acknowledge the receipt thereof in writing. Since the. appellant was not issuing the receipts in accordance with law, the respondent/ tenant could not furnish any evidence in writing of payment of rent and he stands absolved of that responsibility by having made statement on oath. The case relied upon by the learned counsel on the payment of rent viz. P L D 1982 S C 465 did not involve the non-issuance of receipts of rent. Accordingly, the learned Controller was justified in holding that non-payment of rent by the respondent /tenant was not proved.

The appellant put forth the other ground. of personal requirement of the premises stating that his sons had joined him and he wanted to expand his business. This ground was not specified in the application and it was stated only that the applicant required in good faith the premises in this case for his personal bona fide use. Of course, he stated in his affidavit filed in evidence that he needed the premises for exploring the business with the assistance of his sons and he also filed affidavit to that effect of one of his sons by name Azhar Perwez. But it has been brought in evidence through the appellant that he is in possession of major portion of the shop and he has accommodated there 2/3 other persons to work on commission basis. The question for consideration would be whether the landlord should have the choice of preferring the persons working in his shop on commission to the tenant in a small portion of the shop. In my opinion, the tenant has better claim of retaining the tenancy as against the persons working on commission basis. Of course, the landlord has the choice of expanding his business with the assistance of his sons but his need is to be examined in the light of the circumstances of the case. If the appellant were to displace the persons working in shop on commission basis he could expand his business without disturbing the respondent /tenant. The cases cited by the learned counsel had distinguishing features and they do not advance the appellant's case. It was, therefore, rightly held by the learned Controller that the appellant had not established his bona fide need.

For the above reasons, there is no merit in appeal and it is dismissed with costs.

S.Q./M-91/K Appeal dismissed.

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