1. ' This First Rent Appeal is directed against the impugned order, dated 14-1-1982 of learned 1st Senior Civil Judge and Rent Controller Nawab Shah, whereby ejectment has been granted in respect of Shop premises against appellant/tenant.
2. ' Briefly stated the relevant facts are that Hafiz Mukhtiar Ahmad, respondent before me (hereinafter to be referred as landlord) filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 15-3-1974 in the Court of Rent Controller at Nawab Shah seeking eviction of appellants before me namely Mubarak Shah (hereinafter to be referred as tenant)
3. Asghar Ali and Liaquat Ali (hereinafter to be referred as sub-lettees) on the grounds of default, subletting, personal need, and requirement of premises for re-construction. Tenant and sub- lettees named above filed joint written statement in which allegations made by the landlord were denied and application for eviction was forcefully contested. Learned Rent Controller keeping in view the pleadings of the parties, initially framed three issues with regard to default, subletting and personal use and recorded evidence. Landlord Hafiz Mukhtiar Ahmad examined himself and his brother Haji Sayeed Ahmad. On the other hand tenant Mubarak All examined himself and one other witness Rukunuddin. Subsequently with the consent of the Advocates appearing for the parties, learned Rent Controller framed one more issue to the effect whether the condition of the structure of the shop in dispute was in a dilapidated condition and required re-construction. In this regard it was also agreed by the learned counsel appearing for the parties that the new issue would be decided on the basis of evidence already brought on the record by the parties. After the assessm ent of evidence, the learned Rent Controller gave findings of all issues in the affirmative with the exception of issue No,2, which was about subletting. Consequently eviction was granted and three months' time was allowed for the purpose of handing over the vacant possession of the disputed premises.
4. ' It was contended by Mr. Mateen, learned counsel for appellants that notice under section 13-A of West Pakistan Urban Rent Restriction ordinance, 1959 was not served by the new landlord, hence on account of non-compliance with this mandatory provision, there has arisen jurisdictional defect in the proceedings before the Rent Controller as relationship of landlord and tenant did not exist. This contention has no substance at all for the reasons firstly that no such objection was taken in the pleadings before the Rent Controller and no such preliminary issue was framed. Secondly it is asserted in the application for ejectment in paragraph 3 that tenant Mubarak Hussain had sent a registered A.D. Notice, dated 11-1-1974 to the new landlord through his counsel and requested therein that the new landlord should accept the Rent for the months of November and December, 1973 at the rate of Rs, 120 per month. In the joint written statement in paragraph No,3, contents of paragraph No,3 of ejectment application are specifically admitted. Landlord Hafiz Mukhtiar Ahmad reiterated this fact in paragraph No,5 of his affidavit in evidence and produced the notice as Exh.
5. 47-B. -According to this notice which was addressed to Mukhtiar Ahmad on behalf of Mubarak Hussain, it is stated that Mubarak Hussain is tenant of shop No, B-889, situated in Chikra Bazar Nawab Shah and has been paying rent at the rate of Rs, 120 per month to its owner Muhammad Usman son of Abdullah and now the tenant has learnt that the said shop has been purchased by Mukhtiar Ahmad as such request was made to him for acceptance of rent for the months of November and December, 1973 at the rate of Rs, 120 per month. This fact is not challenged and on the other hand it stands admitted. This clearly shows automatic compliance of requirement of section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. Tenant himself took the initiative and addressed notice to the new landlord and offered to pay the rent. Landlord accepted the rent and the relationship between the parties of landlord and tenant started, hence there was full compliance of section 13-A and no useful purpose would be served by taking such objection now in the appeal.
6. Now with regard to the default allegation in the application for ejectment is that rent was not paid for the month of January and February, 1974. Plea taken by the tenant in the written statement is that rent was sent by money order for the months of November and December, 1973 which was accepted by the landlord and thereafter every month rent was sent by money order but the landlord used to return the money orders, hence no default was committed. In the affidavit of evidence, Mubarak Hussain produced two postal receipts along with money order form returned by postal authorities as the said money order was refused to be accepted by the landlord. These documents are Exhs. 66-A and 66-B. Perusal of these documents shows that there is no indication in them that landlord refused to accept these money orders, On this point the correct legal position is that under section 13(2)(i) of the Urban Rent Restriction Ordinance, 1959, it is clearly provided that the default would be said to have been committed if the tenant has not paid or tendered rent due by him. The word "tendered" has been used on purpose to show that it is open to the tenant to pay rent directly to the landlord in cash or offer rent by other methods such as by Cheque or by money order. There is difference between payment of rent and tender of rent in as much as that in the former, payment is made in cash and accepted by landlord and that is the end of the matter and in the later the tenant can offer the rent by issuing a cheque and handing it over to the landlord or by sending the rent through money order. Now if the rent is remitted by the tenant through money order, for the purpose of tender it would be enough if the tenant has sent the money order and has taken all necessary steps required under law to send the money order in the manner prescribed under law. In the instant case the tenant has produced postal receipts Exhs. 66-A and 66-B which show that first rent was sent for the month of January, 1974 to the landlord by money order and later for two months for January and February, 1974. There are stamps of Nawabshah Post Office on these money orders receipts. Now it is quite obvious that tenant has done what was required of him and has sent the money order. Presumption under section 114 of the Evidence Act is attached to such receipts officially issued by the Government. Reference can be made to the decision of Jamil Ahmad v. Abdul Karim 1984 CL Kar.
7. 1815. This evidence is enough to show that rent was tendered as required under the provisions of the said Ordinance. Another thing in favour of the tenant is that he was extra careful and himself sent notice to the new landlord and offered payment of rent.
8. Previously rent for the months of November and December, was sent by the tenant himself by money order which was accepted by the landlord. In these circumstances it cannot be said that the tenant has committed default. Finding on the issue of default is, therefore, set aside.
9. ' Next issue is that of personal need on which the finding of the learned Rent Controller is positive in favour of landlord. Rented accommodation is a shop which has been purchased by the landlord.
10. Landlord Hafiz Mukhtiar Ahmad has himself deposed before the Rent Controller that he has no shop of his own and at present is running business in a rented shop of his brother Haji Sayeed Ahmad, who has served notice on him to vacate. Haji Sayeed Ahmad has also appeared as a witness before the Rent Controller and reiterated the same fact. Before me some controversy with regard to City Survey No, of the shop in question was pointed out whidh appears to be inadvertent mistake and nothing turns on that. In application for ejectment filed before the Rent Controller the number of the shop in question is mentioned as City Survey No, B-889. Landlord himself in his affidavit of evidence has mentioned the same number but in the cross-examination stated that shop in his occupation is City Survey No, 886. This was done apparently due to mistake and no further effort was made to have it clarified. It has been pointed out that Haji Sayeed Ahmad brother of landlord has stated in his affidavit of evidence that he is owner of shop bearing City survey No, 888 which is in possession of Hafiz Mukhtiar Ahmad as a tenant. No further question was put to Haji Sayeed Ahmad in the cross-examination on this point. Record clearly shows that this little controversy has arisen inadvertently at the time of examination of witnesses in the Court and is confined to bona fide mistake with regard to the Survey No, of plots. In fact Haji Sayeed Ahmad has two shops/plots of which the Survey Nos. Are RB/888 and 889. Survey No, B-888 is with Haji Sayeed Ahmad and Survey No, B-889 is nearby plot, which is in occupation of tenant and now purchased by landlord Hafiz Mukhtiar Ahmad. Now in the ejectment application filed in the Court of Rent Controller number of the disputed shop is clearly mentioned as City Survey No, B/889 in paragraph one and the description and number of the shop in question is admitted in para. 1 of the written statement. Another important fact is that tenant himself has produced and relied upon money order coupons Exhs. 66-A and 66-B in which he has himself given the number of the shop in question as B-889 in respect of which he attempted to send the rent by money order. This controversy, therefore, comes to an end.
11. ' About personal need, the facts are very simple that the landlord has been doing business in the shop which belongs to his brother Haji Sayeed Ahmad who has given him a notice to vacate and the landlord has no other shop owned by him except the one purchased which is in occupation of tenant. Evidence of Hafiz Mukhtiar Ahmad and Haji Sayeed Ahmad is sufficient on this point and is not seriously challenged by the tenant except that a feeble suggestion was made that landlord Hafiz Mukhtiar Ahmad, his brother Haji Sayeed Ahmad and their father and other relatives have a large number of shops and are doing business jointly. This suggestion is denied and landlord Hafiz Mukhtiar Ahmad and his brother Haji Sayeed Ahmad have categorically stated that each one of them is independent and has his own business. Another suggestion was made that Ghulam Mustafa son of Rahim Bux who is cousin of landlord is working as partner with him and Ghulam Mustafa owns one Godown. Landlord admitted relationship with Ghulam Mustafa but denied the fact that they were partneRs, On this point there is not very serious challenge made by the tenant. It was suggested that notice was sent by Haji Sayeed Ahmad to his brother Hafiz Mukhtiar Ahmad through Advocate namely Mr. Manzoor Qureshi who was related to them. This fact is admitted by Haji Sayeed Ahmad but it does not make such difference and this does not show that need of the landlord is mala fide and not bona fide. Moreover, tenant has himself admitted in his cross- examination before the trial Court that landlord runs business of Crockery on the "Thalia" near the shop of his brother Sayeed. Rukunuddin witness of tenant has deposed that Ghulam Mustafa cousin of Hafiz Mukhtiar owns two shops. And further that Hafiz Mukhtiar Ahmad and Ghulam Mustafa are doing business together. This fact is denied by Hafiz Mukhtiar Ahmad. In the cross- examination Rukunuddin has admitted that he was not served with summons and had been brought to the Court by the tenant. There is nothing in the evidence of this witness which could be useful to the tenant. Assessm ent of the evidence on this point is that landlord has proved that he needs the shop in question for his personal use. Finding on this issue is upheld.
12. ' There is additional issue framed by the learned Rent Controller subsequently which is to the effect that whether the shop in question is in dilapidated condition and requires reconstruction. There are documents in support of the plea of the landlord. Landlord has produced site plan approved from Municipal Committee and permission letter as Exhs. 47-D and 47-F, Municipal Committee Nawabshah sent notice to the landlord as well as to the tenant for demolition of Southern wall of the disputed shop as the same is in dangerous condition. Copy of the notice is produced as Exh.
13. 47-F. Landlord also produced copy of the letter addressed by Muncipal Committee requiring landlord and the tenant not to raise any further construction as the shop was in dangerous condition. Copy of the letter is Exh. 47-G. These documents are not challenged. Tenant stated in his affidavit of evidence that landlord has the plan approved on 18th April, 1975 when he had filed ejectment application in March, 1974. Landlord in the cross-examination stated that tenant had constructed a new wall during night time without informing the landlord. Tenant stated in his cross-examination before the Rent Controller that Deputy Commissioner had permitted him to carry-out the repairs of the shop in question and, therefore, he did so. Any way authenticity of documents produced by the landlord is not challenged as such there has been proper assessment of evidence by the learned Rent Controller and finding on this issue is maintained. In the result appeal is dismissed and order of the ejectment is upheld on the grounds of personal need and reconstruction. There will be no order as to costs. Tenant is directed to handover vacant possession to the landlord within three months from the date of the judgment.