1. ' This appeal is directed against the order of IInd Additional District Judge Jacobabad acting as the first appellate authority, under the West Pakistan Urban Rent Restriction Ordinance, 1959, dated 28- 4-1977, whereby he reversed the order of Rent Controller on grounds of default and personal requirement and ordered eviction of appellant from the premises, I have heard Mr. Mustafa Lakhani and Mr. Hassan Inamullah, the learned counsel for the appellant and respondent respectively.
2. ' The application for ejectment was instituted by the respondent on the ground of personal requirement, default in payment of rent and damage caused to the property. The Rent Controller found all the issues against the respondent and dismissed the ejectment application. However, on appeal, the first appellate authority held in favour of the respondent on the issues of default and personal requirement and consequently on both these grounds ordered eviction of appellant.
3. ' The learned counsel for the appellant contends that in so far the reversal of the finding of Rent Controller on the issue of default is concerned, the approach of first appellate authority was totally misconceived and wrong as there is sufficient evidence on record to show that immediately on receipt of notice under section 13(A) of the Ordinance, rent was tendered to the respondent which was refused by him. The learned counsel referred to me the coupons of 3 money orders produced in evidence as Exhs. 43, 44 and 46 before the Controller in support of this contention. It is further contended that in any case the first appellate authority should not have interfered with the discretion exercised by the Controller in refusing to make an order of eviction against the appellant which was based on sound reasoning. The admitted position in the case is that the property occupied by the appellant was purchased by the respondent on 1-12-1972 from its previous owner and the sale-deed was executed in his favour on 26-4-1973 which was registered on 3-5-1973. It is also an admitted position that on 19-1-1973 a notice under section 13-A was sent to the appellant by the respondent calling upon him to pay rent but no rate of rent was mentioned in that notice.
4. The appellant in his written statement before the Controller stated that immediately on receipt of the notice under section 13-A of the Ordinance he sent the first money order on 5-2-1973 covering the rent for the month of December, 1972 and January, 1973 which was allegedly refused by the respondent. Another money order was allegedly sent to respondent on 9-3-1973 covering rent for the months of December, 1972 and January and February, 1978 which too was refused by the respondent. The last money order was allegedly sent in the month of June, 1973 covering the rent for December, 1972 and January to May, 1973 which the respondent also refused to accept. The Rent Controller in view of the provisions of section 114 of the Evidence Act held that the production of money order coupons in evidence was sufficient proof of the fact that money orders were sent by the appellant to the respondent which were refused by him. However, the first appellate Court did not agree with the reasoning of the Rent Controller and reversed the finding of the issue of default on the ground that the money order coupons produced in evidence neither bore the address of the respondent nor did they contain any endorsement of the postal authority to the effect that these were refused by the respondent. The Rent Controller had reached the conclusion that absence of address of respondent on the money order coupons was of no significance as the same must have been shown on the other portion of these coupons which were retained by the postal authority. This conclusion of the Controller is neither supported by any evidence in the case nor any such presumption was permissible under section 114 of the Evidence Act. The presumption attached to the performance of official act in a regular way under section 114 by the Evidence Act is not absolute in nature but is only a rebuttable presumption and such presumption is dislodged as soon as some evidence in rebuttal is produced before the court. I have recently held in the case of Khair Muhamnad v. Akhtar Hussain wherein envelop containing notice under section 30 of the D. P.
5. Act was produced in evidence with endorsement of postal authority "Refused" but the addressee stated on oath in evidence that such envelop was never offered to him by the postman, that in such circumstances it was necessary for the person relying on the service of notice to have called the postman concerned and proved the endorsement "Refused" by primary evidence. In the present case the presumption which arose on production of money order coupons was only to the extent that these money orders were sent to the person named therein on the addresses shown on those coupons. The presumption regarding tender of these money orders to the respondent and refusal thereof by him did not arise at all in the absence of the endorsement of postal authorities to the effect that they were refused by the addressee. Further the presumption if any was sufficiently displaced when the addressee (respondent in this case) appeared before the Court and stated on oath that those money orders were not offered to him. In these circumstances the burden of proving that the money order he refused to accept the same remained on the appellant which he failed to discharge. This burden, in these circumstances, could be discharged by the appellant only by calling the postman concerned and proving that those money orders were refused by the respondent when offered to him. No such evidence was produced by the appellant and therefore the mere production of money order coupons was not sufficient to prove that those money orders were offered to respondent who refused to accept the same. The first appellate authority was therefore justified in reversing the order of the Rent Controller on the plea of default in payment of rent. Mr. Mustafa Lakhani, contended that the reversal of the finding of the Rent Controller on issue of default by the first appellate authority was not justified simply because another view of the evidence was possible in the case and, therefore, this court in second appeal should interfere with the finding of first appellate Court and restore the findings of Rent Controller. In the case of Madan Gopal v. Maran Bepari it is held that where the findings of two Courts below on a question of fact are at variance the findings given by the first appellate Court will normally prevail in second appeal1 2 if it is supported by evidence on record. However, such findings can be interfered with in second appeal if it does not reveal a logical basis for reversal of the findings of the Court of first instance or the finding is arrived at by misreading of evidence or in ignorance of any important piece of evidence on record. No such error is discoverable in the findings of first appellate Court in the present case.
6. ' The next contention of the learned counsel for the appellant is that the finding on the plea of personal and bona fide requirement of respondent has been wrongly reversed by the first appellate Court. The Rent Controller refused to believe the personal and bona fide requirement of respondent on the ground that he failed to produce his landlord in evidence to support the allegation that the landlord of respondent wanted to evict the respondent from the premises occupied by respondent. It was also held by the Rent Controller that the respondent has not been able to show as to how the accommodation in his occupation was insufficient for his needs. There was no legal requirement for the respondent to produce his landlord in evidence in support of allegation that his landlord wanted to evict him from the premises if there was other evidence available on record to prove that allegation. Similarly, the suitability or otherwise of the premises in occupation of the landlord is to be judged with reference to the premises in his occupation owned by him and not a rented premises. It is held in the case of Abdul Salam v. Dr. Najam Pervez that it is more reasonable to hold that the other residential accommodation which the landlord is occupying at the time, must be shown to be his own and not merely rented premises. The same view was expressed in the case of Abdul Aziz v. Muhammad Ibrahim. The Rent Controller was therefore, equally in error in bolding that the respondent has failed to prove that the present accommodation in his occupation was not sufficient for his need. The respondent stated on oath in specific terms before the Rent Controller that he is presently residing in a rented premises on monthly rent of Rs,
50. He also stated that the present accommodation in his occupation is not sufficient for his needs while the house occupied by appellant is more suitable for his need. This statement could not be shaken in cross-examination and is fully supported by the evidence of other witnesses who were produced in the case. The appellant could not produce any evidence in rebuttal to disproved the above assertions made by the respondent/landlord. The learned counsel for the appellant also contended that the application was mala fide as the respondents main intention was to enhance the rent. The appellant has not been able to substantiate this allegation on record. Besides the provisions of section 13(4) are sufficient safeguard for a tenant against a mala fide application. 1 here is no substance in this appeal which is accordingly dismissed but in the circumstances of the case there will be no order as to costs. The appellant is allowed four months time to vacate the premises. 1983 CLC 302 PLD 1969 SC 617 1978 SCM R 54 PLD 1977 SC 442