' SHAHID ANWAR BAJWA, J.---Ejectment application was filed by the present petitioner on 29-3- 2000 against the present respondents No,1 . The tenancy is in respect of a shop and open space in front thereof. It was stated in the ejectment application that the landlord purchased the property from previous owner and after purchase of property informed the tenant vide legal notice, dated 12-5-2000. Tenant did not reply to the legal notice. Consequently ejectment application on ground of default from May, 2000 to September, 2000 was filed. The tenant filed his written statement. It was firstly denied that legal notice was received by him. Thereafter it was submitted that in the month of July tenant approached the previous owner for payment of rent for May, June, July and August. Previous owner did not receive the rent on one pretext or the other. Thereafter when the tenant came to know through other tenants that premises had been sold to the petitioner he sent four months' rent vide Money Order, dated 25-8-2000. It was not received and it came back undelivered. Consequently he filed Miscellaneous Rent Case and started depositing rent in the.
Court and first deposit was made by him on September 13, 2000. Evidence was recorded and after recording evidence the Rent Controller vide his order, dated March 30, 2002 allowed the ejectment application. On question of default the Rent Controller observed that opponent did not have any receipt for the period from May to September. It was further held that it was the duty of the tenant to locate the landlord and to pay rent In respect of legal notice, the Rent Controller held that photocopy of the notice regarding intimation of change of ownership was filed and that opponent himself admitted during cross-examination and/or in written statement that it had come to his knowledge that other tenants of the building deposited the rent in Court. The Rent Controller held that notice of change of ownership was received by the tenant and other tenants of the building replied to the notice. It also held that rent was sent by Money Order on 25-8-2000 but it was after default which had been already committed.
2. The tenant filed appeal and learned Appellate Court held firstly that receipt of legal notice was not proved and secondly that rent was tendered in August 25, 2000 from the period from May to August through Money Order and landlord refused to receive it. The learned Appellate Court held that such tender was within the period provided under section 15(2)(ii) of the Sindh Rented Premised Ordinance. Consequently it allowed the appeal. Being aggrieved by that order this writ petition has been filed by the landlord.
3. Learned counsel for the landlord submitted that there has not been any evidence regarding sending of the Money Order or deposit of rent in Court and no document in this regard was endorsed by the tenant either with the written statement or with the affidavit-in-evidence. He further submitted that it is admitted position that rent from May onwards was not paid either to the previous landlord or to the present petitioner. He relied upon Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179, PLD 1993 Karachi 642, 1983 SCMR 1205, 2000 SCMR 1140, PLD 1982 Supreme Court 465 and Pakistan State Oil Company Ltd. v. Sikandar A. Karim and others, 2005 CLC 3. The learned counsel for the respondent submitted that the respondent has been a tenant for more than 50 yeaRs, He further submitted that service of notice under section 18 of the- Sind Rented Premised Ordinance, 1979 has not been proved. He further submitted that Money Order was sent and the landlord refused to receive it. The learned counsel relied upon 2001 SCMR 1888.
4. I have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel. First question is whether legal notice, dated 12-5-2000 was received by the tenant or not? The Rent Controller has held that since photocopy of this notice was filed and since it had been admitted by the tenant that it came to his knowledge that property, had been sold and since there had been a meeting between President of the Association and the landlord therefore, the notice was served. The appellate Court has held to the contrary. No postal receipt or proof of direct service of this notice has been produced by the landlord. Counsel for the petitioner relied upon Khuda Bakhsh's case 1981 SCMR 179. Facts of that case were that new owner filed an application for ejectment of the tenant on the ground of default.
He submitted that on 25-4-1973 he had sent notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 and informed the tenant of transfer of property in his favour. The tenant denied service of notice that in case the District Judge held that notice under registered post was served and postal receipt was produced by the landlord which showed that registered letter was sent by him. A witness from the Postal Department appeared and stated that record is normally destroyed within one and half year. The Supreme Court held that best evidence had been produced by the landlord and that it did not find any provision which required production of postal acknowledgement before the Court of Law. It should be noticed that in the case before the Supreme Court postal receipt had been produced and question was whether acknowledgment receipt should or should not be produced. In the present case even postal receipt sending notice has not been produced. Therefore, case is quite distinguishable. In Pakistan State Oil's case (supra), again it was a case where postal receipt had been produced in evidence. This is again distinguishable from the present case. In the present case it has been contended by the landlord that he sent notice under section 18 of the Sindh Rented Premised Ordinance. Onus of proof was on the landlord. The fact that other tenants, receive notices does not mean that present respondent also received the notice. Therefore, as far as receipt of notice, dated 12-5-2000 is concerned, the petitioner has not been able to establish that notice was sent to respondent No,1 much less received by him. Had the landlord produced postal receipt then section 27 of the General Clause Act, 1872 would have kicked in and come to his aid and raise presumption in favour of due service.
Therefore, the landlord has failed to prove that notice under section 18 was served on the tenant.
However, such determination is not fatal to the case of the petitioner.
5. It is contended by the tenant that he sent rent through Money Order on 25-8-2000. The petitioner seriously contended that Money Order was not sent. It is true that postal receipt of the Money Order had not been enclosed either with the written statement or with the affidavitin-evidence. However, a photocopy of such Money Order receipt is available at page 15 of the R & P. But surprisingly no document regarding refusal of such receipt is available on record. Since it was claimed that it was sent on 25-8-2000, in view of what follows in this order, I don't think it would be necessary to decide whether it was or it was not so sent. Therefore, reliance by the learned counsel by the respondent on Bombay Steel Works' case 2001 SCMR 1888, though perfectly apt, is not germane to the issue at the core of this matter.
6. Learned appellate Court has relied upon section 15(2)(ii) of the Sindh Rented Premised Ordinance for coming to the conclusion that there was no default because rent was sent on 25-8- 2000. The said section 15(2)(ii) is reproduced as under:-- "(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment."
7. When did the rent become due? There is no written agreement. Therefore, under section 10 of the Ordinance of 1979 the rent is to be paid not later than 10th day of the month next following the month for which it is due. It is admitted that rent for April was paid. Rent for May became due on June, 10, rent for June became due on July, 10 and rent for July became due on August 10. Under section 15(2)(ii) the default rendering tenants liable to ejectment occurs, if rent is not paid for 60 days after it becomes due. Rent for May became due on 10th June and period of 60 days expired on August,
8. Therefore, on the day the Money Order claimed to have been sent by the tenant i.e, on 25-8-2000 default had occurred. Therefore, sending by Money Order could not cure the act of default.
8. It is claimed by the tenant that in July he went to the previous owner and met him and offered payment of rent and previous owner parried of one pretext or the other. Such previous owner had not been produced in evidence. Thereafter it was contended by the tenant that when he came to know that property had been sold, then he sent the rent through money order on 25-8-2000. How did he come to know is not disclosed by him in the affidavit-in-evidence or in the written statement? Every other tenant came to know it but he did not. That certainly would be surprising. If the previous owner refused to receive, what was there to prevent him from sending rent before the commencement of statutory default to the previous owner through Money Order, he did not do it.
Therefore, in my opinion the tenant had committed default and is therefore, liable to eviction.
Default occurred on August 8, 2000. Had the tenant sent rent to previous. Landlord, non service of notice would have been fatal to case of the petitioner. However, since the tenant has been in the premises for almost 50 years, a period of 6 months is allowed to the tenant to vacate the premises subject to the condition that tenant shall pay monthly rent in advance. If the tenant fails to pay monthly rent in advance by the 10th day of any month or if he failed to vacate the premises within 6 months from the date of this order, the landlord is entitled to get the premises vacated without any further order, with police aid and with permission to break upon the locks. The writ petition' is allowed in the above terms.