1985 PLP 1239 (MLD)

This appeal under section 20 (i) of the Sind Rented Premises Ordinance, f979 is filed by the appellant /landlord against the order of Rent Controller, dated 6-12-1981 whereby he rejected the application filed by the appellant against the respondent for his eviction from the premises on the ground of default, personal requirement and subletting. The appellant who purchased the premises in dispute through a registered sale-deed filed an application for eviction of the respondent from Flat No.7 alleging that he has defaulted in payment of rent from 1-1-1971 to February, 1974. It was further alleged in the application that the appellant required the premises in good faith for establishing his younger son in the business. It was also alleged in the application that the respondent has allegedly sublet the premises and transferred its physical possession to some other person without written permission of the appellant. In the written statement filed by the respondent before the Rent Controller he denied that he committed any default in payment of rent. He also disputed the personal and bona fide requirement pleaded by the appellant and lastly he denied the allegation with regard to subletting and transfer of the premises in* favour of some other person. It was specifically urged by the respondent in his written statement that he was a tenant of one M . A . Zia Associated Electric Trading Corporation, whom he used to pay rent regularly. The said landlord however, stopped collecting rent from the respondent and thereafter the present appellant verbally asked him to get ready for payment of rent on receipt of notice which was never received by the respondent. A specific plea of absence of notice under section 13 (a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was raised by the respondent in his written statement. On the above controversy between the parties the Rent Controller framed the following issues in the Rent application:- "(1) Whether the opponent is defaulter in payment of rent? (2) Whether the premises in suit is required in good faith by the applicant for the use of his son? (3) Whether the opponent has transferred possession of the premises without the consent of the applicant? (4) What should the order be?" Issue Nos. 1 and 4 were dealt with together by the Rent Controller and in spite of the fact that the Rent Controller found that a notice under :section 13-A was served on the respondent but curiously enough, he reached the conclusion that no default was committed by the respondent on the basis of admission made by the appellant in his evidence about refusal of the money order. The Rent Controller however, while giving the above findings failed to consider that by the alleged money order rent was remitted from 1971 to 1973 which could not be treated as a proper tender of a rent. The learned counsel for the appellant is therefore, right in contending that the order of the Rent Controller holding that no default was committed by the respondent is an illegal order passed on misconception of law and misreading of evidence. This however does not dispose of the controversy finally as the learned counsel for the respondent rightly pointed out that the finding of the Rent Controller that a notice under section 13-A of the Ordinance has been served on the respondent is unsubstantiated on the record and therefore, it is quite clear that even if no rent was tendered there could be no default against the respondent unless it is shown that a notice under section 13-A of the Ordinance was served ors the respondent after purchase of the property by the appellant. The contention of the learned counsel for the respondent is not without force. It is an admitted position in the case that the property was purchased by the appellant in the year 1970, There is no averment in the ejectment application that any notice under section 13-A was ever served on the respondent after the purchase of the property, The respondent in his written statement specifically raised the plea that no notice under section 13-A was served on him. In his evidence before the Rent Controller the respondent and his manager both denied their signatures on the A.D. receipt which was produced by the appellant before the Rent Controller In the case of Gulzar Begum v. Mst. Saira 13ibi 1972 S C M R 251 it has been held that where an addressee of the registered A.D. notice denies his signature on the registered A.D, receipt, the presumption regarding service of notice on him. stands rebutted in such circumstances and therefore it is incumbent for the sender to produce the postman to prove the service of notice on the addressee. In that case the dispute was with regard to service of a notice under section 30 of the D.P. Act and although it was admitted by the tenant that the notice was properly addressed and that there was no other person of that name in the Mohallah but she denied her signature on the acknowledgment receipt. The following observations here made by the Court, in the above case in the circumstances stated above which are fully applicable to the present case:-- "After hearing the learned counsel for the parties, we are satisfied that in the present case, the appellant has rebutted the presumption by appearing in Court and by denying the service of the notice. In these circumstances, the trial Court should have had the signature of the appellant compared with the signature on the admitted document It should have further given an opportunity to the respondent to produce the postman to prove that the notice find the acknowledgment due was offered to the appellant for service and that she signed it. In view of this, the learned trial Court has failed to approach the matter in accordance with law and has fallen into an error. We would, therefore, set aside the order of the learned trial Court, dated the 13th September, 1968 and remand the case back to him for decision of the case in the light of the above observation." In the above circumstances I am of the view that the findings of the Cent Controller on the issue of default are not proper and are accordingly set aside. The Rent Controller is directed to hold further enquiry with regard to the service of the notice under section 13-A of the Ordinance on the respondent and thereafter decide the issue of default alleged against the respondent afresh. While holding the enquiry the Rent Controller will allow reasonable opportunity to both the parties to lead such further evidence as they may desire to lead in this regard. In so far the bona fide requirement urged by the appellant in the rent application is concerned the respondent has filed an application under section 21(3) of the Sind Rented Premises Ordinance, 1979 seeking permission to file a certified copy of a consent order passed in Second Appeal No. 272 of 1980 by this Court on 14-10-1984. The document is not denied by the appellant and according to document during pendency of this appeal the appellant had succeeded in obtaining a consent order from this Court whereunder another tenant in the same building namely, Ghulam Bayazid Qureshi has been ordered to be evicted from an adjoining flat bearing No. 8-A of the said building and according to the said order the said tenant had undertaken to hand over vacant possession of the flat on 15-1-1985. The learned counsel in this connection relied on the case of Paramount Hosiery Mills v . Syed Mustafa Hyder P L D 1984 Kar. 143 which on all fours applies to the circumstances of the present case. In these circumstances the personal and bona fide requirement urged by the appellant also requires further enquiry in view of the additional evidence produced by the respondent in this appeal. I would accordingly direct the Rent Controller to hold further enquiry with regard to the plea of personal and bona fide requirement urged by the appellant in the case in the light of changed circumstances. The last ground urged by the appellant before the Rent Controller was with regard to subletting of the premises. This issue was decided against the appellant and after hearing the learned counsel for the appellant I find that there was not sufficient evidence produced before the Rent Controller in support of the above issue. However, as I am remanding the case for further enquiry and afresh decision on the two issues namely default and bona fide requirement of the appellant it will be only appropriate that the Rent Controller should also hold further enquiry with regard to the allegation of subletting made against the respondent. As a result of the above discussion the order of the Rent Controller is set aside, the case is remanded back to the Rent Controller with the direction to hold further enquiry on all the above three issues raised by the appellant. The Rent Controller shall allow appropriate opportunity to both the parties to lead such further evidence as they may desire to lead in the circumstances of the case. There will however, be no order as to costs. A.A. Order accordingly.