1990 PLP 999 (CLC)

This appeal, at the instance of landlord, has been brought against the order dated 14‑2‑1987 passed by the learned VIIIth Senior Civil Judge & Rent Controller (South) Karachi, passed in Rent Case No. 2876/84, thereby dismissing the application for respondent s ejectment from shop situated on Plot No. SR 13/1/10, Ramchandra Street, I.1. Chuhdrigar Road, Karachi (hereinafter referred to as "the demised premises"). The relevant facts, briefly stated, are these:

2. On 27th August, 1984, the appellant filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") for eviction of the respondent from the demised premises on the grounds of default in payment of rent for the months of June,. July and August, 1984 and for personal use. The rent of the demised premises is admittedly Rs. 275 per month.

3. The respondent contested the Ejectment Application by filing written statement in denial of both the pleas.

4. In support of his case the appellant filed his own affidavit ‑in‑evidcnee. He was duly cross‑examined by the responent. On the other hand, the respondent also filed only his own affidavit‑in‑evidence in support of his case. Ile was also cross‑examined by appellant. The learned Rent Controller by his impugned order framed two issues, one relating to the alleged default in respect of above‑noted three months and the other regarding personal need. Ire decided both the said issues, vides his impugned order, in the negative and, consequently, dismissed the application. Hence this appeal.

5. I have heard Mr. Haji Ameer Ahmad Khan, learned counsel for the appellant and Mr. Altaf K. Allana, learned counsel for the respondent.

6. It was urged by the learned counsel for the appellant that, firstly, there was no proof on record that the two money orders, one for rent of the months of June and‑July, and the other for June, July and August, 1984 were actually sent to the appellant at his address: The counsel emphasised that as a matter of fact the money orders were sent, as admitted by the respondent in his cross‑examination, at House No.32/B‑411, Korangi, Karachi, which is not the residential address of the appellant. The appellant, according to the learned counsel, resides in House No.32/B‑441, Korangi, Karachi. The rent so remitted by money orders was, in his submission, not a proper and legal tender of rent. He also urged that the respondent further failed to prove that the aforesaid money orders were refused by the appellant inasmuch as no postal official was examined to prove this fact. In support of his contention that it was incumbent upon the respondent to have produced the postal acknowledgment to show that the money orders were refused by the appellant, the learned counsel placed reliance on the authorities reported in: (1) 1986 C L C 393, (2) 1986 C L C 2550, and (3) P L D 1986.Karachi344.

7. Assailing the impugned order on issue No.2 regarding personal requirement of the demised premises by the appellant, the learned counsel contended that the appellant had deposed that during pendency of ejectment application he had retired from service and he intended to set up his own business in his own shop and that his children would assist him in carrying on the business. On the basis of this evidence on record, the learned counsel so urged, the learned Rent Controller should have held the personal requirement of the landlord of the demised premises to be genuine and bona fide.

8. It was, on the other hand, urged by Mr. Altaf K. Allana, learned counsel for the respondent, that the money orders were sent at the address given in the Agreement of Lease dated 23rd January, 1984 (Ex. 6). With regard to the failure of the respondent to produce the postman ‑for establishing the refusal of the money orders by the appellant; he submitted that a letter was addressed by the appellant to the Post Master concerned who replied that the record in respect of money orders in question had been misplaced in the post office and he was, therefore, unable to cause its production in Court. In this view of the matter, according to learned counsel, it was not considered worthwhile to summon the post master to produce or cause to be produced in Court the relevant documents. He also urged that there was no convincing evidence led by the appellant to prove his bona fide need of the demised premises.

9. I have taken into consideration the submissions made by both the learned counsel for the parties. No doubt in the above‑referred reported cases it has been held that in the absence of postman's evidence it cannot be held that the landlord had refused to accept the envelopes or remittances sent at his address. It is, however, pertinent to note that in the agreement of lease (Ex.6) the address of .the appellant given is the same on which money orders for the three months in question were sent, namely, House No.32/B‑411, Korangi, Karachi. It was, according to the learned counsel for the appellant, wrongly mentioned in the lease agreement; otherwise the appellant is ever since actually residing in House No. 32/B‑441, Korangi. Be that ‑as it may, the respondent cannot be held responsible for the alleged error. He was expected to have sent the money orders at the address as recorded in the lease‑deed. In this view of the matter, he cannot be held to have committed default in remitting the rent for the three months in A question through money orders at a wrong address. If there was a mistake in the address of the appellant as recorded in the lease deed (Ex. 6), then the consequences for sending the money orders at wrong address, cannot be fixed upon the respondent. In these circumstances the question of failure of the respondent to prove that it was the appellant who had actually refused to accept money orders is of no significance inasmuch as it may be presumed to have been refused by someone else than the appellant who was admittedly not residing in House No.32/B‑411, Korangi, Karachi. The remittances in question, however, clearly indicate the anxiety of the respondent to pay the rent to the appellant. Even after the return of the money orders for the three months in question, the respondent acted with promptness in immediately depositing the rent for the said three months along with the rent for September, 1984 before 10th September, 1‑

984. Under the aforesaid facts and circumstances of this case the learned Rent g Controller was, in my opinion, justified in holding that there was no default on the part of the respondent to pay the rent for the aforesaid months. I do not, therefore, find any good reason to interfere with his findings on this issue.

10. As regards the finding recorded by the learned trial Court on the issue of personal requirement of the demised premises by the appellant, it would suffice to say that there is only a casual and bold oral version of the appellant to the effect that he requires the premises for his personal use without in any manner establishing it through any convincing evidence. It is even pertinent to note that there is no mention in his deposition as to what kind of business he sought to carry out in the said premises. Likewise, he has given no particulars of his alleged sons, who were to assist him in doing the said business. The requirement of the appellant, even if admitted without there being any proof of it on record that after filing of the application he had retired from service, then too it might have given him a fresh cause of action for filing application for ejectment on that ground. It could not however, be taken into consideration while deciding this issue as framed on the basis of the pleadings of the parties.

11. For the foregoing reasons, I dismiss the appeal with no order as to costs. H.B.T/B‑150/K Appeal dismissed.