' This is an appeal directed against the judgment passed by III Rent Controller, Karachi on 23rd January, 1980, directing the appellant to vacate the shop premises bearing No, 7, Zehra Chambers, Zaibunissa Street, Saddar, Karachi.
2. The facts leading to the instant appeal are that the appellant is the tenant of respondent in respect of shop Premises No, 7, Zebra Chambers, Zaibunissa Street, Saddar Karachi on a monthly rent of Rs,
150. Respondent filed a Rent Application No, 3651 of 1976 against the appellant on the alleged grounds of non-payment of rent, for making illegal and unauthorized construction, for converting the shop into a factory for infringing terms of tenancy agreement and for subletting the premises.
3. The appellant/tenant in the written objections before the trial Court has denied the allegations of the respondent and stated that the respondent had refused to receive the rent from him inasmuch as the appellant sent the rent for the months June, July, August and September, 1975, by three money orders which were refused by the respondent and therefore, the appellant had no alternate but to deposit rent with Nazir of the Court. The appellant therefore, pleaded that there was no default on his part.
4. The Rent Controller on the pleadings of the parties settled the following issues:-
(1) Whether the opponent is a wilful defaulter? If so, since when?
(2) Whether the opponent has carried out unauthorized construction? If so, its effect?
(3) Whether the opponent has converted the premises in question from shop into factory? If so, its effect?
(4) Whether the opponent has violated the terms of tenancy agreement? If so, its effect?
(5) Whether the opponent has sublet the premises in question?
(6) What should the order be?
5. Issue No, 1 was found in the affirmative while all the remaining issues were found in the negative by the Rent Controller. Accordingly vide Issue No, 6 the Controller ordered eviction of the appellant.
Against the aforesaid order dated 23rd January, 1980, an appeal under section 15 of the Urban Rent Restriction Ordinance, 1959, was filed but the District Judge opined that the appeal would lie before the High Court in view of the provisions of Sind Rented Premises Ordinance, 1979. Hence the instant appeal was filed in this Court.
6. The appeal was heard by this Court and the appellant argued the matter in person and submitted written arguments while Mr. Muhammad Muzaffarul Haq, Advocate has made submissions on behalf of the respondent in respect of Issue No, 1 relating to default. This issue is appealed against in this case while the other issues are in favour of the appellant.
7. One Abdul Ghaffar the brother and attorney of the appellant was examined at Exh. 6 by the Rent Controller. He has deposed that respondent had refused to receive the rent and therefore, he had sent the same through money orders but the same was also refused. He has produced three money order coupons Exhs. 6-B, 6-C and 6-D. Respondent's attorney has produced Nazir's reports Exhs. 5-C and 5-D/1-3. Respondent's contention was that the appellant had even committed default in the deposit of rent in the misc. Rent case also. The learned Rent Controller has considered- the aspect of sending the money orders and the production of three money order coupons and came to the conclusion that the appellant has failed to prove that he offered or tendered the rent in question by money orders. The Rent Controller doubted the tender of rents through money orders, as he believed the postman or clerk of the Post Office was necessary to prove that the money orders were in fact issued. He also believed that the endorsement "refused" should have existed on coupons.
8. In the written arguments a contention is raised by the appellant that he had made an application on 15-7-1979 for summoning the o concerned of the Post Office. A certified copy of the said application and supporting affidavit are annexed with memo. Of appeal as Annexure C. It is {{BLURR}} further 'submitted' that': the :lo !Court did anolk ARMY :the said application.
It is also rebutted. In the .Writtemiargumentsiithat p;tht correct addresSvf the landlord was-given and tbereisinolground to states at the; ddress was wrong. The address is given in thvittpper Pitttof the money Order form,. Which is not included in the :4ouponsi.t E, It t is.,-eponeous on thepart of the Controller to believe that proper-add/eat:NAB nOtthentioned in the-money ordersvAiz on b.,:
9. This Court hal' iiniikdthe ccoupdti pro uced byib iai9 411-n t in the lower Court: it iS4provedithat the 'rent walk i.Tenderedatbrough money orders as the coupons of the Postal Department are producedgA.Unless the allegations are made that thesesin ns are forged and not issued by the Postal authorities fill 'thin it iiib iiiiiiettikthcir COnPOite were issued by the Postai Department, aim theilagical,tditelasion, is .That,the rent rent:wasjA tendered through the money orders. When the money orders ' returned nn Pal401144.1SAPIezInnInniltkiWnre: OPAsited ifk,i4frlignit0 in.#0.89011#.1in.,Pus rent appliCation. The basis of thei,44ings, jingtne failure byffie,tgant t examine the clerk of ,Posts,l,pepartmeqt , iskrAy' opinion is erroneopal here is an application by the ti*ellantifehatit inl'theidiiiikcOnirt Wtigt64, e has prayed to summon such a clerk but it was disallowed. " ''"'''''" ,,L3 .7,:f63:e; ,:.:41 hI*11011qo tirD ,:Ail..t ' 67: '
10. It is to be observed that in the dep9SitiOhnEthiattorney of respondent following admissions are made:-.i rH t+;.:0 '.iP's I ,H:: ', ..:r,1 it. t "It is a fact thaVcAvei,badrtaltenpits41,000*InorCias, depOtitefrom the sit ji,;; opponent beside. Rs, 5,000, mentioned ,;in, the rent. Agreement. olfesideV this we hadlakentRs,,900e aarent deposit from the opponaato."biL85-0;,,. in ,,Ci rtrdif '
Rs, 9q0,,yerettitakent' by ,.,the landlor4/044ondept ,fort .,rent, deposit, and thisamo4nt isVAK.4" adiO4,04,A0W4iiilfotilgt1,,Wnt ifi,01,,,Akt tie Ta*,00:4544!$, When the amount was taken earlier as rent, Jthere Notpobbelltardlyttos default on the part of the appellant although appellant had made every effort to pay the rent through bioney orartifind: (1then , alternatively depriSiting th rent, in miscellanbzttts application tittIihe ConriiiiiDataltoshould ,carry element of intention'itsvtb parrentirrinere' 'Marv:U.11nm 4lubh intention. T the contrary there is:';`everf efforefo , pay :thel rentiVeheivalready asom of Rs, 900, was lying deposited as "RenCdepositsvithaelestiondent. , . ,, , ,-,; that the appellant &Posited 'The, tin '' Oit't d'-month '61 'NOVetiber, 1975,
11. The ACarried3itVik: 03)ftrail,' ''ii .1(4104l** madeakreference, "II on 26-1-976,,Whieh according' Oita We 66 aliive dejSbsited before 15th of t December; '14 75:' Thii; and either '=called` ifiel; were agitated in Appeal No, 237/78, -and'"weie 'decided'in';faiou Otthe 'appellants. Thus the Rent Controller shoull'iiiif liave considded this 'ailiect at all, as he is barred by the {{BLURR}} ::1471 bi *di 1gd1 bmaGi" tecattrinobar, 5.i.:4itti rilf:an;,^? 443 C L 349 1.)r,y..-: ogolF.,vn no 10 [Karachi] >> ;311iOr152, Una' a5i-frtotitui: -" Saeeduzzaman Before Saeeduzzaman I -:'111 19 ^t;)A .'st;t111,xigil otiJ " Mir MUSTAFA 44,41,1-1AN-Appellantio mom odilo ana.13:mot) otis ' Mst. SAFIA MAKIS00 D-Respondent "iffI11114ICI 3111 First Rent Appeal No 860 of 1982, decided on 1 , .
41w blA
(a) Sind. Rented Premises Ordinaucei(XVikof 1979)- ,rm FIti -- S. 14(1)--Notice, object "0f-40*ot-of .Notice is to allow tenant.111- reasonable opportiinity to vacate premises required by landlord for his ,qr, personal use. [p. 350]it KhOajoik.' Rehman v.''Uttner Faroac1982 CLC 318 and Ulfat Hameed V.
Bidis Khatekin PLD 1982 K. 823 ref '" ' _rem.Ses _r..n Wij i,74.11:/651 1(i i113131ilbi; ,t7J
(0) sum Kent ,r al once (XVII of 1979)
S. 14() 8c ()-Notice, obitiCt br-Landlord failitOo4ubstantiate alleptions,that notice was seryed pn tenant before filing applicationOkeet:_soritotice can be achieved only if order by Rent Controller for evictionrikipassecl after expiry of period of two months from service of notice oapgcation of landlord on tenant 350J8; +A
(c) Sind Rented'Ormaises Ordinance (XVII of 4979}0:1 '1'wAO S. 14(1)-4ervice of notice--NOtaaiting a liiiiifordWkivice of 31'- notice of application on tenant and expiry of two months 'Per)O0, held, '';'nY a substantial compliance of provisions of S. 14(1)--T.O#Itird cannot tW be non.Suited on technical ground -at be can bring aner-npplication after service of notice for which there can be no defettei.1 [0'3511C A A n ; , , cth ns , zak.0.Ffp for rippeola4i;u?.15c at -;btdEfid.
1..n.f..; T. 155qan .1gomiu dti?
Hafiz 4:-.4341qi for Respondent. t".v1.03f; bf.Qaf.Olgif..* wei Date' lartelaring : 4th Libber; 1982., - ":''-b10 0.*1 "oima 9nNlrcy ojUDGMEN T t This appeal is directed against the order of eviction passed by 3/Ith Rent Controller, Karachi, against theappellant-1-13ii4he appliCation of redipondent filed under section 14 of the SindRented Premises Ordinance, 1979. the respondent who a widOw applied tb the Controller for n order of eviction against the appellant alleging tharilie -a appellant was called upon to vacate the premises but in Site of service of notice he failed to vacate the premises. The appellant disputed service of notice upon him before institution of the application 'but the Controller after recording evidence of the parties held that such a notice was served on the appellant before filing of the application by the respondent and accordingly passed order of eviction against the appellant as. Required by The learnactcounsel for the appellant contends that the findings, of Rent Controller that the notice under section MOT; of the Ordinance was duly served on the-appellant before filing of the; application by the respondent is erroneous .Aa. Service was not at ,a11,,Ripyld and therefore the application filed by the respondent, before the Controger was not maintainable in law. In the case before the Controller. Theps,popdept examinedActielf and tendered in evidence a postal enVelope containing the notice addressed to the appeilant.
ThiiiInvekoriwati counothy the postal authority to the 1respondent with {{BLURR}} r . the endorsement "refused". The rent controller held that the address given on the envelope was correct and the endorsement made by the postal authorities was genuine and therefore under section 114(f) of the Evidence Act, the service of the notice should be presumed to have been made on the appellant. The learned counsel for the appellant contends that in view of the statement of appellant on oath denying service of notice on him and the correctness of the endorsement of postal authorities on the envelope, the presumption of service of notice arising under section 114 of the Evidence Act was sufficiently rebutted. The contention of the learned counsel is not without force. The respondent was suggested in the cross-examination that the endorsement of refusal on the postal envelope was obtained by her collusively and that the appellant never refused to accept the notice. The appellant in his own evidence on oath before the Controller stated that the evelope was never offered to him and he never refused to accept the same. In these circumstances, the learned counsel for the appellant rightly contended that the presumption of service of notice under section 114 of Evidence Act, was sufficiently rebutted and in order to prove the service of notice it was necessary to examine the postman who made the endorsement of "refusal" on the envelope.
However, I am unable to accept the further contention of the appellant that as the notice under section 14(1) of the Ordinance was not proved to have been served on the appellant therefore the proceeding under section 14 of the Act were incompetent under the law. The learned counsel for the appellant relied on the case of Khwaja M. Rehman v. Umer Farooq (1) in support of his contention. In the above-cited case a learned Single Judge of this Court held that a notice calling upon the tenant to vacate the premises within 2 months of the service of notice did not meet the requirement of section 14(1) of the Ordinance and therefore the application of the landlord under section 14 of the Ordinance seeking ejectment of the tenant was incompetent for the aforesaid defect in the notice. The case do support the contention of the appellant's counsel but with utmost respect I am unable to persuade myself to subscribe to the view expressed in the above case. In my humble view the object of notice under section 14(1) of the Ordinance, is to allow the tenant a reasonable opportunity of vacating the premises where it is required for personal use of the person who is in the category of persons specified in this section. The scope of enquiry under section 14 of the Ordinance was examined by me in the case of Ulfat Hameed v. Birjis Khatoon (2) and I had held in that case that the enquiry before the Controller in a case under section 14 of the Ordinance must confine to the objections raised by a tenant to jurisdictional facts and not to the genuineness or otherwise of the needs of landlord. A plain reading of subsection (2) of section 14 of the Ordinance will show that a landlord is not entitled to avail of the remedy under subsection (1) of the Ordinance, if he is in occupation of a building owned by him in any locality and subsection (3) of that section provides that where the tenant has failed to deliver the possession of the building under subsection (I), the Controller shall, on the application by the landlord in this behalf, order eviction of tenant from the building in a summary manner by using such force as may be necessary. In my humble view where the landlord makes an application under subsection (3) of section 14 of the Ordinance, on the allegation that notice was served on the tenant before filing the application as required B under subsection (1) of section 14 of the Ordinance and fails to substantiate his allegation regarding service of prior notice at the trial then the object of notice under this section can be achieved if the order is made by th
(1) 1982 CLC 318 (2) PLD 1982 Kar. 823 ' Controller for eviction of tenant after expiry of the period of two months from the service of notice of application of the landlord on the tenant. The service of notice of application of landlord on the tenant and expiry of period of two months in such circumstances, in my view, will amount to substantial compliance of provision of subsection (1) of section 14 of the Ordinance and it will not be proper to non-suit a landlord on this technical ground as he C can again bring another application after service of notice to which there can be no defence if he otherwise fulfils other qualifications laid down in section 14 of the Ordinance. I am therefore of the view that the landlady/respondent though did not properly discharge the burden of proving service of notice under section 14(1) of the Ordinance on the appellant but for that reason her application could not be defeated as the order of ejectment in the present case was passed long after the expiry of period of two months from the date of service of notice of her application on the appellant. I therefore find no reason to interfere with the order of Controller and dismiss this appeal but there will be no order as to costs. However, as the question of law decided by me is of considerable importance and a contrary view has been expressed in a reported case, I allow four months' time to the appellant to vacate the premises so that he may avail of the remedy of filing a petition for leave to appeal before the Supreme Court if he so chooses.