P L D 1962 (W (PLP)

H. T. RAYMOND, J.‑This is a civil first appeal against the judgment of the Additional District Judge, Karachi, (Mr. A. H. Kureishy), dismissing the suit of the appellant‑plaintiff filed under section 24 of the Karachi Small Causes Court Act.

2. The appellant‑plaintiff had filed this suit against respondent defendants alleging that he is a tenant of the respondent‑defendants in respect of residential flat No. 2 of the commercial building situate at Bellasis Street, South Napier Road, Karachi, at a monthly rental of Rs.

26. The appellant‑plaintiff had originally taken these premises on rent from a Hindu Firm of Messrs Harchandmal Dial Das & Sons in April 1948. These Hindus migra ted to India and this property became evacuee property and the Custodian some time in 1950 fixed the rent of this flat at Rs. 18 per mensem. On 12‑6‑1954 the sale of this property in favour of the respondent‑defendants was confirmed and this property declared as non‑evacuee property. On 8‑8‑1957, however, a suo motu revision commenced at the instance of the Custodian of Evacuee Property on account of which the character or status of this property remained is dispute and hence the appellant‑plaintiff was unable to pay his rent regularly. In the year 1956 the respondent defendants filed a suit against the appellant‑plaintiff being Suit No. 491/56 of the Court of Small Causes, Karachi, for the recovery of their arrears of rent and on 27‑3‑1958 they obtained an ex parte decree in the sum of Rs. 706‑11‑6 against the appellant‑plaintiff. On 17‑10‑1958 the appellant‑plaintiff on coming to know of this ex parte decree against him deposited the decretal amount in the Karachi Small Causes Court. 1n the meanwhile, the respondent defendants had also filed an ejectment application being Ejectment Application No. 283/56 in the Karachi Small Causes Court against the appellant‑plaintiff and had obtained an ex parte order against him on 27‑3‑1958. The appellant‑plaintiff then filed Suit No. 698/59 on 16‑3‑1959 against the respondent‑defendants under section 24 of the Karachi Small Causes Court Act claiming that the respondent‑defendants by moving an application for the plaintiff's ejectment had committed an act of trespass against him.

3. This suit was resisted by the respondent‑defendants on the ground that the Custodian had fixed the rent of this property at Rs. 18 per mensem only for the period that it remained evacuee property and that after 12‑6 1954 on which day the property ceased to be evacuee property, the respondent‑defendants became entitled to recover the agreed rent which was clearly mentioned in the Confirmation Order from the appellant‑plaintiff. It was further pointed out that the appellant‑plaintiff on one pretext or another bad avoided paying his rent so much so that a suit had to be filed against him for the recovery of these arrears of rent. The respondent‑defendants further submitted in their written statement that the plaintiff's tenancy was validly terminated by a valid notice dated 25‑2‑1956 and that the plaintiff was a habitual defaulter and had never paid his rent except for the two amounts deposited by him in Court.

4. On these pleadings consent issues were struck and the learned Additional District Judge reaching the conclusion that the plaintiff's tenancy had validly been terminated and that the defendants were entitled to the Ejectment Order and had committed no act of trespass against the plaintiff, dismissed the plaintiff's suit with costs.

5. Mr. Ibadat Yar Khan the learned Advocate, appearing on behalf of the appellant‑plaintiff raised two contentions before us. He argued, firstly that his client's tenancy had not been legally terminated because no notice terminating this tenancy had been served upon him and secondly that his client was always ready and willing to pay his rent.

6. Elaborating his first contention, the learned advocate for the appellant contended that it had not been proved in the Court below that the notice of the respondents terminating his client's tenancy and dated 25‑2‑1956 had legally been served upon his client. In this suit no evidence had been led in the Court below and no witnesses had been examined. The entire matter was decided upon documents. The envelope containing this notice dated 25‑2‑1956 bore a postal acknowledgment in pencil dated 27‑2‑1956 to the effect that it was not being accepted. There were also two endorsements in ink one bearing the word "redirected" dated 28‑2 and the other bearing the word "refused" dated 29‑

2. Mr. Ibadat Yar Khan argued that mere refusal of notice by his client was not valid service within the meaning of section 106, Transfer of Property Act, and that inasmuch as the postal peon or any other person from the post office was not examined to prove the delivery and refusal of this notice by the addressee, the lower Court was wrong in holding that the service of this notice had duly and validly been effected upon his client. In support of this contention Mr. Ibadat Yar Khan invited our attention to three cases Gobinda Chandra Saha v. Dwarka Nath Patita (A I R 1915 Cal. 313) ; Ma Me Shin v. R. M. R. M. N. Chettyar Firm (A I R 1933 Rang. 76) and Bhutto Kristo Roy v. Gobindram Marwari (A I R 1939 Pat. 540). In the first of these cases it was held by a Bench of the Calcutta High Court that‑

"Proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the pre sumption that it has been so returned because it has been refused by the addressee." In this case their Lordships of the Calcutta High Court then went on to point out that‑ "the presumption mentioned in section 114, Evidence Act is not a presumption of law but a presumption of fact, and where, as in this case, the addressee pledges his oath that the cover was never tendered to him we cannot treat the presumption of regularity of official business as conclusive against him." In the present case, as mentioned above no evidence was recorded and no party or witness stepped into the witness box. Thus, there is no material in the present case for dislodging the presumption that arises under section 114(e) of the Evidence Act that the notice was duly tendered to the addressee or to one of his family or servants at his residence within the meaning of section 106 of the Transfer of Property Act and rel:tied by them.

7. In the second case relied upon by the learned Advocate for the appellant, namely, Ma Me Shin v. R. M. R. M. N. Chettyar Firm a Bench of that Court held that‑-- "The question whether where a registered letter is returned by Post Office as refused, a presumption can be drawn as to due delivery or service of the letter by post must depend on particular circumstances of each case." We are in agreement with these words and we feel that the effect of this second ruling is to cancel the effect of the previous ruling relied upon by the learned Advocate for the appellant. The question of the presumption of service through the post is obviously one that has to be decided upon the facts of each case, and seeing the envelope in this case and the postal endorsements thereon, we have no doubt that we are perfectly safe in accepting the presumption that arises under section 114 (e) in this particular case.

8. In Bhutto Kristo Roy v. Gobindram Marwari a Bench of the Patna High Court relying upon the earlier ruling reported in Gobinda Chandra Saha v. Dwarka Nath Patita, held that‑

"a letter, if posted and not received back through the Dead Letter Office shall be presumed to have been received by the addressee : but this presumption does not apply where the letter purports to have been returned as being refused by the addressee." The facts of this Patna case are distinguishable from the facts of the present case and in the Patna case the letter that was sent did not contain a statutory notice such as was contained in the letter sent by the respondents to the appellant and refused by him in this case. In these circumstances, then, we find ourselves unable to accept this first contention of the learned Advocate of the appellant and we must hold that the notice addressed to the appellant by the respondents terminating his tenancy was validly served upon him and his tenancy duly terminated as from the 31st of March 1956.

9. Besides, we find from the record of this case that the respondent‑defendants had obtained an ex parse ejectment order against the appellant on 27‑3‑1958 in Ejectment Application No. 283/56. It would follow from this ex parte order that the previous notice terminating the tenancy addressed to the appellant had been accepted by the Small Causes Court as having been duly served upon the appellant‑plaintiff. This being so, the onus is now cast upon the appellant‑plaintiff to prove that he had not received this notice and indeed had no knowledge of it. But, we find, that he has not stepped into the witness box himself or led any other evidence to prove this.

10. With regard to the second contention of the learned Advocate on behalf of the appellant that his client was always ready and willing to pay his rent, we have only to refer to two recent cases of this very Bench in order to dispose of this argu ment. In Muhammad Hussain v. Messrs Pakistan Boot House (P L D 1959 Kar. 360) it was held by a Bench of Inamullah and Qadeeruddin Ahmad, JJ. that‑

"to be ready and willing to pay the rent refers to a time before the filing of a suit by the landlord." In that case, too, the appellant had deposited his rent in Court and dealing with this point their Lordships said that‑

"We do recognise that the appellant has deposited all his dues in Court, but we are unable to infer from this that he was ready and willing to pay the rent at the agreed rate before the suit was filed." Again, in Haji Abdul Karim v. Haji Dawood & Co. (P L D 1960 Kar. 532) our learned brother A. S. Faruqui, J. held that‑

"ready and willing to pay rent means not a pious wish but connotes an element of promptness and readiness to pay. Mere willingness to pay rent has no meaning if the tenant is not ready to do so." Applying these principles to the facts of the present case we find that the appellant‑plaintiff was a habitual defaulter in the payment of his rent which had twice to be recovered from him by a civil suit and by a decree. There is, therefore, no substance in the second contention raised on behalf of the appellant by his learned Advocate.

11. We, therefore, find that there is no force in this appeal and we accordingly, dismiss it with costs. K. B. A. Appeal dismissed.