1990 PLP 1546 (CLC)

Date of hearing: 2nd November, 1989. This is an appeal under section 21 (1) of the Sindh Rented Premises Ordinance, 1979 against the order dated 10‑5‑1984 in Rent Case No: 5121 1980 passed by the learned XVII Rent Controller, Karachi, allowing the ejectment application on the ground of default and directing the appellant to vacate the premises within six months as it was a shop premises.

2. The facts giving rise to this appeal, in brief, are that the appellant is a tenant of respondent in respect of Shop No.3 in the building known as `Al Tasnim' constructed on Plot No.l‑K‑12 situated in Commercial Area Nazimabad, Karachi, at the monthly rent of Rs. 110 excluding electric charges. On 14‑9‑1980 , application under section 15 (2) (ii) of the Sindh Rented Primises Ordinance, 1979 was filed by the respondent on the ground of default in payment of rent by the appellant for the period 1st April, 1978 to 31st August, 1980 making a total In Of Rs. 3,

190. The learned Rent Controller after recording the evidence of the parties and hearing arguments of the counsel for the parties allowed the said application by his order dated 10‑5‑1984 which is impugned in the above appeal.

3. Mr. Baqar Hussain learned counsel for the appellant submits that the rent at the rate of Rs. 110 for the month of April, 1978 was paid by the appellant respondent for which, however, no receipt was issued to him by the respondent, as she was demanding enhanced rent. Thereafter, the rent for the months of May to November, 1978 was sent by Money Orders which were refused by the respondent. The first of such money order was sent on 2‑8‑1978. As the rent remitted by the appellant through money orders was refused by the respondent, he started the depositing of rent in the Court of learned Rent controller in Misc. Application No. 2324/79. First of such deposit was made on 3 ‑i‑1979 and thereafter he continued to deposit future monthly rent in the said Misc. Application. So, there is no default on the part of the appellant.

4. The learned Rent Controller does not seem to have relied upon the photostat copies of the money order coupons, of which the originals were not produced by the appellant. Besides, it was observed by the learned Controller that these money order coupons, though mention the dates but not the year. They also do not bear the seal of the Post Office. It was further observed that the appellant did not also file the receipts issued by the Post Office to him while remitting the mounts mentioned in the money order. On examining the said money order coupons, I find that there is seal of the Post Office on all the four money orders. Although the year has not been mentioned but the particulars of the rent as to the, months and the year have been stated by the appellant in at least two of the said Money Order coupons. However, I asked the learned counsel for the appellant whether he can produce the originals of the Money Order coupons and receipts issued to the appellant by the Post Office. Mr. Baqar Hussain showed his inability to produce the originals of Money Order coupons as well as the receipts. He was, however, in a position to produce the photostat copies of the receipts which have been taken on record by me. There is round seal of the Post Office on these receipts which also bear the year as 1978. As already stated on oath by the appellant, Mr. Baqar Hussain submits that all the originals of the receipts as well as coupons being misplaced, could not be produced in the lower Court. In view of the fact that the originals are stated to have been lost secondary t evidence, by producing the photostat copies, can be taken on record and considered on its own merits. On the basis of the aforesaid money order coupons and receipts it appears that the rent for the months of May to November, 1978 was remitted by the appellant to the respondent. However, the submission of the counsel that they were refused by the respondent cannot be said to have been proved because no photo‑stat copies of the reverse page of the said money order coupons have been produced by the appellant. In the absence of any endorsement by the post‑man and failure of the appellant to summon and produce the concerned post‑man it cannot be said that the Money Orders were presented to the appellant who refused to accept them. It is also noticeable that these money orders coupons produced in the lower Court do not bear the address of the respondent.

5. A further question however, arises as to the tendering of the rent to the appellant for the months of December, 1978 to April, 1979. Mr. Akhtar Hussain, learned counsel for the respondent has produced a photocopy of the Nazir's report on the reverse of his application moved in Misc. Case No. 2324/79 for withdrawal of rent. The first such deposit by the appellant appears to have been made on 31‑5‑1979 in the sum of Rs. 110 only. Subsequent deposits have been made for future months on different dates, but there is no deposit of rent for the months of May, 1978 to April, 1979.

6. I asked Mr. Baqar Hussain to produce the receipt for the accumulated amount of rent for the said period. He was unable to produce any receipt. It was, however, submitted by him that his client paid Rs. 1,500 to his Advocate being the amount of rent for, that period to be deposited in the Court of Controller. On my further enquiry he was unable to disclose the name of the Advocate. It might be that the appellant paid Rs. 1,500 to the counsel as his fee for depositing the rent from May, 1979 onwards however, in the absence of any evidence, I am not supposed to say anything further in this respect.

7. For the facts disclosed above it is clear that the appellant has failed to tender or deposit the rent for the months of May, 1978 to April,

179. There is, therefore, no force in this appeal which is dismissed.

8. Mr.. Baqar Hussain at the end requested for one year's time to hand over possession of .the premises to the respondent. Mr. Akhtar Hussain has kindly conceded to the grant of four months' time. The respondent is, however, directed to vacate and hand over the premises to the respondent within four months from today, subject to depositing the rent regularly. If the appellant fails to hand over the vacant peaceful possession of the premises to the respondent by the time allowed herein, he will be liable to be ejected without notice A.A./M‑1134/K Appeal dismissed,