1997CLC915 (PLP)

Date of hearing: 18th December, 1996. This rent appeal calls into question the order dated 30‑11‑1992 passed by the learned IV Senior Civil Judge and Rent Controller, Karachi East in Rent Case No.1430/91, granting respondent's application for the eviction of the appellant. Respondent Mst. Mariam Bai now deceased as the widow of one Haji Ghulam Ali filed the aforesaid rent case for eviction of the appellant from the premises in question situated on plot bearing S. No.CDC No.LY‑18,x.18/139, in Chakiwara Area of Karachi on the ground of personal requirement under section 14 of the Sindh Rented Premises Ordinance, 1979. Before filing of the aforesaid application, the deceased respondent is said to have sent to the appellant through her advocate a notice dated 30‑5‑1991 as required under section 14 of the said Ordinance. In the written statement filed by the appellant he, inter alia, denied receipt of any such notice. The impugned order is attacked by Mr. Mushir Alain the learned counsel for the appellant mainly on the ground that the eviction application filed by the respondent was not maintainable as the requisite notice under section 14 of the said Ordinance had not been served on the appellant. The order was also challenged on the ground that respondent who was an old lady of over 70 years of age had failed to prove that the premises was required for her own use and that the original respondent having died during the pendency of the present appeal and her legal representatives who were otherwise not covered by section 14 of the Ordinance were not entitled to any benefit accruing under the impugned order which was passed under section

14. In so far as the first objection is concerned, this was taken by the appellant at the very outset in his written statement. To meet the objection the respondent's witness filed with his affidavit‑in‑evidence photocopy of a notice dated 30th May, 1991 alleged to have been sent by appellant's advocate to the respondent purportedly under section 14 of the Sindh Rented Premises Ordinance, 1979, requiring him to vacate the premises within two months. It is pointed out that during the cross‑examination though this witness denied that notice under section 14 had not been served on the appellant but took no steps to prove such service, in that, neither the original postal receipt was produced nor the acknowledgement due receipt nor anyone examined from the post office. In his affidavit‑in‑evidence the appellant specifically denied service of section 14 notice on him but this statement was not even challenged in the cross-examination. Miss Mehrunnissa, the learned counsel representing the respondents, submitted that for proving the service of notice it was not necessary to call the postman in the witness‑box and that its service should be presumed once its copy was produced. In aid of her submission, she referred to the cases of Abdul Aziz v. Sheikh Muhammad Rafiq 1.991 MLD 1316 and Bashir Ahmed v. Mumtaz Khan PLD 1965 Lah.

126. These cases do not support counsel's contention that mere production of a copy of the notice was enough to prove service of notice or that on production of such copy' service should be presumed. In the first case not only copy of the notice was produced alongwith the affidavit‑in‑evidence but the landlord also produced the postal receipt, acknowledgement due receipt and letter from the postmaster confirming the delivery of the notice and further he examined the postman of the beat and another witness to prove the service of notice on the tenant. In the other case too the landlord had produced the post?card with the endorsement of the postman that it had been refused by the addressee and also the acknowledgement due card and though the postman had not been examined, he had proved to the satisfaction of the Court the posting of the post‑card by registered post, acknowledgement due. Dealing with the effect of section 114 of the Evidence Act (Article 129 of the Qanun‑e‑Shahadat, 1984) it has been observed by the learned Judge that: "Under it illustration (f), is that the Court may presume that the common course of business has been followed in a particular course of business. It is under this section that decisions have been taken that in case of notice sent under registered cover and received back with the endorsement 'refused', a presumption arises that it had reached the addressee and had been refused by him. Such a presumption has been raised in a large number of cases already cited. The effect of the presumption, which arises under section 114 of the Evidence Act, is that it must be presumed initially that a notice reached the addressee. Onus is then on him to show that it did not reach him. Whether the onus has been discharged or not by him, has to be decided on the facts of each case. Where a presumption arises and the defendant has denied receipt of the notice, the question whether the notice was served on and refused by the addressee, is not a question of law and must be decided as a fact, weighing in. scales the presumption raised and the denial by the addressee of having received it." In the present case, the receipt of the said notice was repeatedly denied by the appellant, in his written statement, in his affidavit‑in‑evidence and in the cross‑examination of respondent's witness and therefore it was incumbent upon the respondent to prove the service of the notice on the appellant. Even for raising the presumption under illustration (f) of Article 129 of Qanun‑e?-Shahadat, 1984 section 114 of the Evidence Act at least it should be established that the letter bears the correct address and had been duly posted. Here, just a photo copy of the alleged notice was filed alongwith the affidavit‑in‑evidence of respondent's witness; neither the original postal receipt nor the acknowledgement due card was produced. There is no evidence that the notice had been posted. All that has been stated by the respondent's witness on the point is that, "I say that a notice dated 30‑5‑1991 was sent to the opponent by the counsel of applicant vide Regd. Letter No. 133 dated 1‑6‑1991 ". It is not the case of the witness that he posted the notice or it was posted in his presence, as such, the above statement would be just hearsay and cannot be accepted as proof of the despatch' of the notice. Thus on the evidence produced in the case it is not proved that the service of the mandatory notice provided for under section 14 of the Sindh Rented Premises Ordinance, 1979, had been effected on the appellant. Section 14 of the said Ordinance provides for a summary procedure for the eviction of tenant in the cases of landlord/landlady falling in the category contemplated under subsection (1) thereof. The procedure under that subsection has to be initiated by serving the tenant with a notice in writing informing him that the landlord/landlady needs the premises for personal use and requiring him to deliver vacant possession of the premises within such time as may be specified in the notice but not earlier than two months from the receipt thereof. Such notice is mandatory and unless this notice is given to the tenant proceedings for his eviction through Rent Controller cannot be taken. It is only on non?compliance of such notice that the landlord/landlady may move the Rent Controller for the eviction of the tenant. Since, however, in the present case, the respondent failed to prove the service of the requisite notice under section 14(1) on the appellant, her application to the Rent Controller for eviction of the appellant was not maintainable. In view of my above finding on the first objection of the appellant, it is not necessary to consider the other two objections raised by the appellant's counsel. Accordingly, I allow this appeal, set aside the impugned order dated 30‑11‑1992 passed in Rent Case No.1430/91 and dismiss the said rent case. A.A./A‑96/K?????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.