1990 PLP 2300 (MLD)

The facts which constitute the background of this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, are that the respondent is the owner/landlord of commercial premises bearing C.S.No.332, situated in Ward `B', Rohri, having purchased the same on 27‑4‑1987 through a registered sale‑deed, which was in occupation of the appellant as tenant. The respondent served the appellant with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, calling him to pay rent at the rate of Rs.600 P.M. The respondent who is a practising advocate also required this premises for his office. On 19‑4‑1988, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, in the Court of Senior Civil Judge and Rent Controller, Sukkur, seeking the eviction of the appellant on the aforesaid grounds. The appellant resisted his ejectment by controverting the allegations based on facts. He disputed the receipt of notice sent to him under section 18 of the Sindh Rented Premises Ordinance, 1979. The bona fide personal need of the disputed premises by the respondent was also questioned on the ground that he has already got vacated a commercial premises from one Gopaldas on the said ground. The parties went to trial on the following issues: (i) Whether the opponent has committed wilful default in the payment of rent? (ii) Whether the disputed premises is required by the applicant for his personal bona fide use? (iii) What should the order be?

2. The respondent examined himself (P.W.1), and Noor Ahmed Postman (P.W.2), while the appellant examined himself (D.W.2).

3. On the assessment of evidence, both oral as well as documentary the learned Rent Controller (Mr. Khair Muhammad Talpur) decided all the issues against the appellant. directing his ejectment from the demised premises within a period of 60 days. This order dated 18‑5‑1989 is the subject‑matter of this appeal.

4. I have heard Mr. Kadir Bux Memon, learned counsel for the appellant and the respondent in person. I have also gone through the record of this case carefully.

5. Section;18 of the Sindh Rented Premises Ordinance, 1979, which deals with change in ownership provides as follows:‑‑‑ "

18. Change ownership.‑‑‑Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of S.15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant"

6. The respondent claims to have served the appellant with the requisite notice dated 15‑1.1‑1987 which is on record. The postal receipt and A.D. receipt are also placed on record. Noor Ahmed Postman (P.W.2) who was examined by the respondent has testified as follows: "I am working as a postman at Post Office, Rohri, I had received receipt No.869 dated 25‑11‑1987 for delivery to the addressee opponent. Ghulam Waris Siddiqui. I delivered the aforesaid receipt to addressee Ghulam Waris who is personally known to me. I had delivered the aforesaid receipt to the addressee at the address mentioned in the receipt. Ghulam Waris had put his signature on the said receipt in my presence. I had delivered the registered letter to Ghulam Waris. I used to deliver the other letters to Ghulam Waris on the same address which is mentioned in the aforesaid receipt." He was subjected to a searching cross‑examination which had for its aim to condemn him as a dishonest person, but nothing has been brought out which would shake his veracity or establish that the appellant was not served with the registered envelope containing notice.

7. Mr. Kadir Bux Memon, learned counsel for the appellant has contended with force that since the receipt of notice was contested by the appellant who had disowned his signature on A.D. receipt, it was obligatory upon the learned Rent Controller to have referred the disputed document to the handwriting expert. Reliance is placed upon cases reported as Dr. Major Abdul Ahad Khan v. Muhammad Iqbal P L D 1989 Karachi 102, and Gulzar Begum v. Mst. Sairah Bibi 1972 S C M R

251. In the first cited authority the risk involved in comparison of signatures by a Court in the absence of counsel for parties was highlighted. In the latter case the postman was not examined to prove the service of notice and it was in this context that the Supreme Court while remanding the case made the following observations:‑‑ "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 got the signature of the appellant compared with the signature on the admitted documents. It should have further given an opportunity to the respondent to produce the postman to prove that the notice and 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." It may be noted that there are different modes of proving signature or handwriting. The respondent has proved the delivery of notice to the appellant through the best evidence and in my humble view it was not necessary in this particular case to have referred the disputed A.D. receipt to the handwriting expert.

8. Again section 18 of the Sindh Rented Premises Ordinance, 1979, only speaks of intimation of change of ownership. The application for ejectment is, 1 therefore, a sufficient notice of this change. The record shows that the application for ejectment was filed on 19‑4‑1988. The order‑sheet dated 5‑5‑1988 shows that the appellant was present before the Rent Controller on this date. He had, therefore, intimation of this changed ownership on 5‑5‑1988. The tentative order of deposit of arrears of rent and monthly rent due was passed on 23‑10‑1988, and if was thereafter that the appellant deposit the arrears of rent in the name of the respondent. So even if it is accepted for arguments sake that notice under section 18 of the Sindh Rented Premises Ordinance, 1979, was not served upon the appellant, he was still a defaulter in view of the rule laid down in Aziz Begum v. Faiyaz Butt, reported in NLR 1980 Civil (Lahore) 134, and Israr Ahmed v. Abdul Aziz, reported in 1987 C L C 336.

9. The deposit of rent in the office of Rent Controller in the name of wrong person will again not absolve the tenant from the liability and such deposit cannot be accepted as a valid tender within the meaning of section 10 of the Sindh Rented Premises Ordinance, 1979. The issue of default in payment of rent was, therefore, rightly decided by the learned Rent Controller.

10. I now address myself to the issue of personal requirement. Admittedly the respondent is a practising advocate. He has testified that he has got no office and has been using one of the room of his residential premises as office. This, position is admitted by the appellant himself. He also admits that the present office of the respondent is small one in comparison to his shop which is much larger. The requirement of the respondent is assailed on two‑fold grounds, firstly that he has suppressed the order of eviction passed against his other tenant, namely, Gopaldas in his application of ejectment, and secondly, he has got a favourable order against Gopaldas on the same ground. The fact that the respondent got a favourable order of ejectment against his other tenant Gopaldas is not in dispute. The respondent has, however, disclosed this fact in his affidavit- in‑evidence and he has not concealed any fact from the Court. The observations made in Mst. Begum Jan v. Abdul Rasool, reported in 1984 C L C 755, and in unreported judgment of this Court dated 9‑2‑1987 in F.RA. No.72 of 1984 (Mst. Madina Bibi v. Taseer Ahmed and another) are thus not attracted in this case As! observed in Qamaruddin through the legal heirs v. Hakim Mahmood Khan, reported in 1988 S C M R 819, the landlord need not disclose all properties which he rented out to other tenants and all that he was required to show to Court was that he needed the shop of a particular tenant.

11. No doubt the respondent has got a favourable order against his other tenant Gopaldas almost on the same ground, but upto this time he has not been able to get possession of the said premises. The appeal filed by Gopaldas is being disposed of today and he has still a remedy before the Supreme Court. The ratio of Sabu Mal v. Kikaram alias Hemadas, reported in 1973 S C M R 185, is therefore, not attracted to the facts of the present case.

12. On all the above scores the appeal has got no merits and is dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises. AA./G‑211/K Appeal dismissed.