1. ' DORAB PATEL, J.-The appellant has a family of nine and as he has no other accommodation in Karachi, he is living with his brother, who is a Government servant in Jacob Lines, Karachi. The flat allotted to the appellant's brother has only two rooms and as the appellant's brother has a family of four, it means that thirteen persons are living in a flat of two rooms. As the appellant did not wish to live in such appalling conditions, he purchased a house in the Pir Illahi Bakhsh Colony of Karachi.
2. This house consists of a residential quarter and some shops and the respondent was the tenant of this residential quarter. Therefore, on purchasing the house, the appellant served a notice on the respondent calling upon him to attorn to him, and he informed him by this notice that he had purchased the house "for my own personal use under sale deed dated 14th February, 1976". But the appellant also informed the respondent in this notice that if he wanted to continue as a tenant even temporarily he was "advised to enter into a fresh tenancy agreement" at an enhanced rate of rent. The respondent admits the receipt of this notice, but as he refused to vacate the demised premises, the appellant filed an eviction application against him in the Court of Rent Controller, on the ground that he required the demised premises for his own use, and as meanwhile the respondent had committed default in the payment of rent, he sought his eviction on the further ground that the respondent had committed default in the payment of rent.
3. ' The respondent contested his eviction and he pleaded in his written statement that he was not in default of rent, and he also alleged that the appellant did "not require the house for his bona fide personal use but he just wants to enhance the rent." Both parties produced evidence in support of their respective contentions and the Rent Controller held in his order dated 1st November 1977 that the respondent was not in default in the payment of rent, because he had deposited rent in Court after filing of the eviction application. He also rejected the appellant's claim that he required the demised premises for his own use, therefore, he dismissed the eviction application in what we can only describe, as a very cursory order.
4. ' The appellant challenged the dismissal of his eviction application in an appeal in the District Court, Karachi. But, as this appeal was dismissed by an Additional District Judge by his judgment dated 13th July 1978, he filed a second appeal in the Sind High Court which was dismissed in limine on 16th September 1978. The appellant then filed a petition for leave in this Court, and leave was granted in order to examine the appellant's contention that the three Courts below had misread the evidence on the record.
5. ' We would first make a few observations on the question whether the respondent was in default in the payment of rent, because it turns on the proper interpretation of section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the said Ordinance). Now, it is common ground between both the learned counsel that the respondent had received the appellant's notice under section 13-A of the said Ordinance on 4th March 1976. And, under this section "the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him." There is no ambiguity about this provision. The respondent had to pay the rent due from him within thirty days of the notice of atonement served on him by the appellant, and as rent was due from him, this means that he had to pay it not later than the 3rd of April, 1976. But his case appears to be that he had remitted rent by a money order on the 3rd of April, 1976, which was delivered the next day to the appellant, who refused to accept it. Mr. Malik denied the allegation that the appellant, had refused to receive the respondent's money order. Without examining this objection, the lower Courts assumed that the respondent's allegation was correct. But, even on the allegation advanced by the respondent, he was late in the payment of rent by one day. No doubt the question whether this default could be condoned was within the discretion of the Courts below, but the Rent Controller took the view that the respondent was not in default in the payment of rent, because he had deposited it in his Court.
6. Mr. Mukhtar admitted that this deposit was made in Court after the applicant had filed his eviction application, and according to the appellant, this deposit was made on the 4th of May.
7. 1976. The appellant was not cross-examined on his assertion that the respondent had thus deposited rent more than a month after the 3rd of April, 1976, therefore, the view of the Rent Controller that the respondent was not in default, because he had deposited rent in Court, is based on a patent misreading of section 13-A and Mr. Mukhtar very properly did not attempt to defend the extraordinary construction placed on this section by the Rent Controller.
8. ' Turning now to the view of the first appellate Court, the Additional District Judge sent out the contentions of the parties in his judgment and then held that the plea that the respondent was in default in the payment of rent, "is not available to the appellant for the short reason that this was not the ground for the ejectment of the respondent in lower Court". This observation of the Additional District Judge is contrary to the express averments of the appellant both in paragraph 16 and in paragraph 12 of his eviction application. Therefore, whilst the view of the Rent Controller was based on a misreading of a very simple provision of law, the view of the first appellate Court was based on a patent misreading of pleadings which were very clear.
9. ' We are deeply disturbed by this aspect of the case, and we cannot understand how the two lower Courts made such elementary mistakes. Be that as it may, the question of default was re- examined by High Court, and although the learned Judge rightly held that there was default in the payment of rent, he further held that the money order had been delivered to the appellant on the 4th of April, 1976 and as the default was thus of only one day, he condoned the default. And, if the default had been of one day only, there would have been no question whatever of interfering with the discretion exercised by the High Court. But, as pointed out by Mr. Malik, the 4th of April, 1976 fell on a Sunday, and it would be very strange if the money order had been delivered on a Sunday in Karachi in the year 1976.
10. ' However, we find that the attention of the learned Judge was not drawn to the fact that the 4th of April, 1976 fell on a Sunday, therefore, we enquired from Mr. Malik, why the appellant did not cross- examine the respondent on the suggestion that a money order would not normally be delivered in Karachi on Sunday. We were astonised at Mr. Malik's reply. Mr. Malik stated that as the respondent had neither produced the money order coupon nor the receipt on which he had relied, the appellant could only cross-examine the respondent on the suggestion that his story about the money order was false and that the appellant had done so. This is correct and as the burden of proving that he had tendered rent by money order was on the respondent, the respondent should have proved his claim by examining the Postman, who was alleged to have offered the money order to the appellant. But, although the respondent did not examine this Postman, the learned Judge of the Sind High Court has given a categorical finding that the respondent had remitted rent by money order to the appellant on the 4th of April, 1976.
11. ' However, on going through the record, we came across a passage in the appellant's cross- examination which appeared at first sight to be the only possible link between the respondent's claim of having sent rent by money order and the High Court's finding that this claim had been proved. In any case, Mr. Mukhtar was not able to refer as to any other evidence which could connect the High Court's finding with the respondent's claim, The relevant part of the appellant's cross-examination reads :- "I do not know about the money order if any. I produce the M.O. Coupon and with receipt (handed over by Advocate of opponent to me nor in Court) as Exhs. 16 & 17."
12. ' Obviously the word "nor" in the Rent Controller's note, which is in brackets, is a typing error for the word "now", and it is also obvious that the document described as the receipt in this passage is the document marked as Exh.
17. But, whilst according to the evidence, the appellant was made to produce "the money order coupon and with receipt", the documents produced are neither the money order nor the receipt, because their is an express endorsement that they were only true copies. In the first place, therefore, it was unfortunate that the Rent Controller confused copies of documents with their originals. But, if this had been the only mistake on the Rent Controller's part, we would not have referred to it. He has, however, made another mistake by which we are absolutely appalled.
13. Although, Exh. 17 was described by the Rent Controller as a receipt, we find that both Exhs. 16 and 17 are merely copies of the respondent's own statements on a money order form. Now, as the appellant's advocate did not object to the production of these documents through the appellant, at the highest, it can be said that the appellant had waived his objections to the production of that part of t he original money order from containing the respondent's own statement.
14. ' This however would only mean that a money order had been despatched to the appellant, but this cannot possibly lead to the inference that the Postman had presented the money order to the appellant, who had refused to accept it. But this could have been proved by summoning the Postman to prove his endorsement on the receipt portion of the money order that the appellant had been offered the money order but had refused to accept it. Alternatively, if the respondent's plea bad been true, the receipt portion of his money order would have contained the Postman's endorsement that the appellant had refused to take the money order and if this receipt portion of the money order had been exhibited with the appellant's consent, the respondent could have contended that he had proved his claim. Now, the only inference possible from the evidence as recorded by the Rent Controller is that this is what had happened, because the words attributed to the appellant in his cross-examination read : "I produce the M.O. Coupon and with receipt." But, we have to state with very great regret that the word "receipt" is a false description of the two documents (Exhs. 16 and 17) produced through the appellant. Both these documents, which are at pages 56-57 of the Paper Book are mere copies of the respondent's own declarations on the money order, which he claims to have sent to the appellant.
15. ' On the other hand, if the appellant had really refused the respondent's money order, the respondent would have produced the Postman's endorsement about this refusal on the receipt portion of the money other. But, he did not produce the receipt portion of the money order nor did he say that he had lost it or that it had not been returned to him by the Post Office. This can only lead to an adverse inference against his claim and it is significant that he even refrained from saying in his evidence that the money order had been refused by the appellant. Therefore, the finding of the High Court that the respondent had offered rent to the appellant on the 4th of April, 1976 is not supported by any evidence whatsoever. And, on the other hand, as we explained, the findings of the lower Court in the respondent's favour are based on a misreading of the law and of the appellant's eviction application.
16. ' In these circumstances, the only evidence of the date when the respondent deposited rent is the appellant's own evidence, according to which the respondent had deposited rent after a delay for one month. In the circumstances of the case and bearing in mind the respondent's conduct specially in the matter of producing documents, we venture to think that if the correct facts had been drawn to the attention of the learned Judge he would not have exercised his discretion in favour of the respondent and condoned his wilful failure to pay rent for more than a month.
17. However, whatever be the position if the matter had stood here, we were satisfied after hearing arguments that the appeal had also to be allowed on the further ground that the three Courts have totally misread the appellant's evidence about his claim that he required the demised premises for his own occupation.
18. ' There is absolutely no evidence to rebut the appellant's assertion that be had purchased the house in dispute for his own occupation as he did not have any other property of his own in Karachi to live in. Therefore, on the law declared by this Court in Abdul Salam Akhtar v. Dr. Najam Pervez Wand in Abdul Aziz and another v. Mohammad Ibrahim (2) it is clear that the appellant had made out a prima facie case for the respondent's eviction. Unfortunately as the attention of the three Courts below was not drawn to these two judgments, this has affected the appreciation of evidence by the three Courts and the heavy burden of proof placed by them on the appellant for proving his claim was not in consonance with our
(1) 19'76 SCMR 52 (2) PLD 1977 SC 442 ' view in these two cases. Unfortunate as this be, apart from proving that he owned no other property in Karachi, the appellant also proved that he is a man of some means, who did not need to live in conditions approaching a pigsty and there was no dispute before us that he was living in his brother's flat and that thirteen persons in all were living in this flat which consisted of only two rooms.
19. ' As this evidence proves that the appellant was in desperate need of accommodation, Mr. Mukhtar feebly submitted that the property purchased by the appellant had more than one flat. This criticism would not have been relevant, but for the fact that the respondent has challenged the appellant's good faith, therefore, we may point out that although the respondent said in his evidence, but very vaguely that the property in which he lived, had another flat, the criticism of learned counsel relates to a question of fact. But, as this was not pleaded by the respondent in his written statement and as the respondent -did not cross-examine the appellant, on the suggestion that he could have selected another flat in the house for his own use, the objection fails and in these circumstances as the appellant had proved that he was in desperate need of accommodation, it is difficult to understand how his claim was rejected by the three Courts.
20. ' However, taking first the Rent Controllers order, apart from giving evidence about the conditions in which he was living, the appellant further said that the appalling conditions in which he was forced to live had affected his wile's health and that he had been advised by a doctor to shift to more spacious accommodation. As he did not examine the doctor, who gave him this advice, the Rent Controller rightly rejected this part of the appellant's evidence and then completely ignoring all the other evidence about the appalling conditions in which the appellant was living, the Rent Controller referred to the appellant's notice of attornment to the respondent and stated that the appellant had in this notice "demanded enhanced rent" With these observations, he dismissed the appellant's eviction application.
21. Now, as we explained earlier, the appellant's notice to the respondent contained a categorical assertion that he required the demised premises for his own use and the demand that the respondent should, therefore, vacate the flat in his occupation was not subject to any conditions whatever. But, after making this unconditional demand, the appellant went on to inform the respondent that if he did not vacate immediately, then, even for the period he did not comply with the demand to vacate, he should pay higher rent. The demand for higher rent even for a temporary period was illegal and was, therefore, a piece of evidence against the appellant's claim that he required the demised premises in good faith. But, as this evidence was not conclusive this illegal demand did not necessarily mean that the appellant's claim that he required the house in dispute for his own occupation was false. It only meant that the burden of proving his good faith fell very heavily on the appellant. Therefore, the .Courts should have examined the evidence from this angle, the more so, as landlord is entitled to live in his house. But, perhaps because the attention of the Rent Controller was not draw to the Judgments of this Court, he even held that there was a heavy burden on the appellant to prove that he was entitled to evict the respondent, although he was not living in a house of his own. And he also completely ignored the evidence which proved that the appellant was living in appalling conditions and that he had the means to live in his own house. But this evidence, in our humble opinion, was nor than sufficient to rebut any adverse inference against the appellant on account of the demand in his notice for enhanced rent for a temporary period.
22. ' Therefore, we are satisfied that the Rent Controller's view was based on a misreading of evidence and as the first appellate Court agreed with this view in a very cursory appreciation of evidence and without attempting to examine the appellant's evidence, it was unfortunate that this concurrent finding was not set aside in the High Court. But the High Court did not interfere with this concurrent finding because it observed that the Courts below had made a` thorough and careful examination of the evidence on the record." We regret to say that the appreciation of evidence by the Courts below was extremely cursory, therefore, the learned Judge erred in holding that he was not entitled to interfere with such a cursory appreciation of evidence. Accordingly, we are satisfied that the judgments of the three Courts cannot stand and are, therefore, set aside.
23. ' Mr. Mukhtar stated that the respondent was building his own house and that he wanted time until the end of this year to vacate the demised premises. Although this Court does not have the power to grant more than four months' time under section 13 of the said Ordinance, Mr. Malik, on behalf of the appellant, submitted that the appellant would have no objection if the respondent remained in the demised premises until the end of this year. Therefore, the appeal is allowed without costs, the judgments of the-three Courts are set aside and we direct the respondent to hand over vacant possession of the demised premises to the appellant not later than 31st of December 1980.