' The respondent filed an ejectment application in respect of the premises situated at the ground floor bearing No, G-84-1 Malir Colony, Karachi. The appellant is a tenant in respect of the said premises on the monthly rent of Rs, 400 which was increased in the year 1980 at Rs, 450 p.m. The parties had entered into an agreement dated 15-1-1980 which inter alia provided that the rent of Rs, 450 shall be payable on 5th of every calendar month and the agreement was for a period of 11 months from 15-1-1980. The appellant was to pay electric and water charges. The respondent sought ejectment under section 15(2) of Sind Rented Premises Ordinance on ground of default in payment of rent, causing nuisance, violation of terms and conditions of the agreement, damages to the property and expiry of tenancy period. The appellant contested the proceedings denying all the allegations made against him. It was pleaded that Rs, 100 p.m. were paid towards electricity charges to the respondent and he was responsible for the payment of the Entire electricity bill.As regards default he pleaded that as the respondent had refused to accept the rent it was sent by money order which was also refused and finally it was deposited in the Court. The learned Controller, however, granted ejectment on the ground that the period for tenancy has expired and further that the appellant has defaulted in the payment of rent and electricity charges.
2. Mr. Ch. Rashid Ahmed, the learned counsel for the appellant has contended that as the appellant had sent money orders to the respondent which were refused no default has been committed. He further contended that the question of default is connected with the determination of the amount payable as electricity charges and as the respondent did not produce any bill to show that electricity charges have not been paid no default can be presumed. From the agreement it is clear that the appellant was to pay rent @ Rs, 450 p.m, and electricity charges were also to be paid by him. From the evidence the facts emerge that the appellant is using the premises as a bakery in which he has an oven also. The first question to be determined is whether electricity charges were payable by the appellant. The appellant has not produced evidence to show that under an agreement the appellant was to pay Rs, 100 to the respondent who was responsible to pay the entire bill to the Electricity Company. This condition is not contained in the agreement dated 15-1- 1980 which merely states that electricity charges shall be payable by the appellant. In this regard Syed Hamid Ali the learned counsel for the respondent has referred to the evidence for the respondent to the effect that the respondent used to pay Rs, 50 p.m, to the appellant and hand over the bill to him and the appellant was liable to pay the entire amount of the bill to the Electricity Corporation. As these facts are not borne out from the agreement itself, the learned Controller has correctly determined this aspect of the case on the basis of the oral evidence. The contention that there was an agreement under which the appellant was to pay Rs, 100 p.m, as a fixed rate towards electricity charges should have been affirmatively proved by him. No proper, cogent or convincing evidence has been produced to establish this fact. On the other hand the learned counsel for the respondent has contended that the appellant was using electricity for commercial purpose whereas the respondent was using for his residential purpose and the consumption of appellant was at least thrice to what the respondent consumed. In view of these facts the parties agreed that the respondent shall pay Rs, 50 and the entire bill shall be paid by the appellant. In this regard a material evidence which was in possession of the appellant has been withheld by him. The appellant has admitted that payments made to the respondent were entered by way of acknowledgment in a register maintained by him and admittedly it was in his possession. This register would have shown the amount paid to the respondent every month towards rent and electricity charges. The facts that the appellant was maintaining such a register and has not been produced by him leads to an adverse inference that if produced it would have gone against the appellant. From these facts and the statement of the witnesses it is clear that the appellant has failed to establish the agreement to pay Rs, 100 towards the electricity charges. The respondent in his evidence has stated that he had regularly paid Rs, 50 to the appellant, but as he did not deposit the electricity charges, it was disconnected on 27-2-1981. Although in his affidavit of evidence he has stated that he has produced a copy of the electricity bill, in fact some other document, being the estimate for issuing a few connections was filed. In any case it is established that the electricity was disconnected on 27-2-1981. The appellant has nowhere explained how and in what manner the electricity was disconnected. The respondent had issued a legal notice to the appellant in which the arrangement pleaded by the respondent was stated and it was complained that electricity charges have not been paid. The appellant admitted in cross-examination that he had refused to accept this notice. These facts lead to the impression that the plea set up by the appellant cannot be n believed.
3. Coming to the next question regarding payment of rent, the respondent has claimed that rent from July, 1980 to November, 1980 has not been paid. The plea of appellant is that he had sent a money order for Rs, 550 comprising its. 500 as rent and Rs, 50 towards electricity charges but it was refused. The respondent refused to accept it because it did not represent the correct electricity charges. It was also stated by the appellant that subsequent money orders were also refused by the respondent. Therefore, he deposited the same in Court. In his statement or in his written statement he did not give the details of the money orders. He did not mention the dates and the amounts of subsequent money orders which were sent by him to the respondent. The money order receipts or counterfoils were not produced in evidence. In spite of query made from the Advocate for the appellant he merely showed the counterfoils of the money orders but did not apply to produce it in evidence even at the appellate stage. The counterfoils, therefore, cannot be taken into consideration, nor can the Court in such circumstances look into documents which the appellant himself did not produce in evidence. Merely by referring to such documents or showing it to Court the appellant has not established the fact that money orders were sent in due time and for proper amounts because such an evidence cannot be admitted without giving opportunity for rebuttal to the other side. Since the appellant did not apply to produce this evidence on record, I do not think it proper to rely on it. However, the learned counsel for the appellant has stated that every month the rent was being sent by money order till it was deposited in Court in November after the filing of the ejectment case. According to the learned counsel for the appellant the appellant has been sending Rs, 550 p.m, which included Rs, 450 towards rent and Rs, 100 towards electricity charges.
Even if for argument sake these money orders are taken into consideration, which I am not inclined to take, in view of the foretasted reasons these were not proper tenders as the appellant had not been paying the proper electricity charges. The learned Controller, therefore, was justified in holding that default has been committed by the appellant.
4. The learned counsel for the appellant next contended that the agreement of tenancy is not an agreement as contemplated by law, and further that as only Photostat copy has been produced, the respondent could not seek ejectment on the ground that tenancy has ceased to be valid under section 6 of the Ordinance. To appreciate the contention of the learned counsel it is necessary to reproduce sections 5, 6 and 15 (1) (2) (i).
"5. Agreement between landlord and tenant.--(1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signing by, and sealing with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge or First Class Magistrate.
(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registrable the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant: ' Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance.
6. Tenure of tenancy. No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement fixed before or after the commencement of the tenancy: ' Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance.
15. Application to Controller.--(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14 he shall make such application to the Controller.
(2) The Controller, shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that--
(i) the tenancy has ceased to be valid under section 6;
5. The admitted position is that the agreement of tenancy was attested by a Notary Public and two witnesses. Section 5 describes the manner in which the agreement should be made, and attested.
It provides that the agreement of tenancy should be in writing and if it is not compulsorily registrable under any law, then such agreement shall be attested by the Controller within whose jurisdiction the premises is situated or any Civil Judge or First Class Magistrate by signing it and affixing his seal on the agreement. The agreement of tenancy which is not registrable should be attested, signed and sealed by the authorities mentioned in this section. Subsection (2) of section 5 provides that the original agreement which is not compulsorily registrable and a certified copy of the registered agreement shall be accepted as proof of relationship of landlord and tenant.
Section 6 provides that after the expiry of the agreed period of tenancy it shall cease to be valid. In such circumstances the landlord will be entitled to seek ejectment under section 15(2)(i).
6. If a landlord seeks ejectment on the ground that the tenancy has ceased to be valid due to efflux of the agreed period, he must first establish that the agreement of tenancy is in the manner provided by section 5(i). In this regard sections 5, 6 and 15(2)(i) have to be read together. The agreement in section 6 directly refers to the agreement mentioned in section 5(i). Therefore, unless the agreement on the basis of which section 15(2)(i) is pressed into service is in accordance with section 5(i) of the Ordinance, the landlord will not be entitled to seek ejectment on the ground that time fixed in the agreement has expired, and therefore, the tenancy has ceased to be valid. Section 6 cannot be read in isolation with section 5. The power to eject a tenant under section 15(2)(i) is restricted to agreements made in accordance with section 5 and to no other agreement. Such restriction is contemplated by the legislature otherwise there was no necessity for providing a method for making an agreement and declaring such tenancy as invalid after the expiry of the agreed period. Unless the contents of such agreement are admitted by the tenant a certified copy of the registered deed or the original should be produced before the Controller.
' Once section 5 has been complied with the Controller has to determine whether in terms of such agreement the period has expired and the tenancy has ceased to exist.
7. The learned counsel for the appellant has contended that as the original agreement has not been produced the ejectment application was liable to be dismissed. Mr. Hamid All has contended that the object of section 5(2) is to avoid any uncertainty about the relationship of landlord and tenant and because the appellant has admitted the tenancy for a period of 11 months, it is not necessary to insist on the technicalities provided by section 5. So far section 5(2) is concerned it specifically provides that certified copy of registered deed or the original deed of agreement not liable to registration shall be accepted in proof of relationship of landlord and tenant. It provides a procedure for proof of relationship of landlord and tenant. It does not lay down any restriction that relationship cannot be proved in any other manner. Where the relationship of landlord and tenancy has been admitted it may not be necessary to insist upon the production of the original deed for proving this relationship. Therefore, if the copy of the agreement produced before the Controller is admitted by the other side one cannot insist that production of original is necessary otherwise the, case must fail.
8. In the present case, the agreement is not in the manner provided by section 5(i) as it has not been attested by any of the Officers mentioned in it, and therefore, no ejectment could be granted under section 15(2)(i). However, as I have held that appellant has committed 'default in payment of rent and electricity charges, the appeal is dismissed. Three months' time is allowed to the appellant to vacate the disputed premises.