' This F.R.A. Has been filed against the order of VIth Senior Civil Judge and Rent Controller (South), Karachi dated 20-1-1990 whereby he dismissed the ejectment application (R.C. No,1025/86) filed by the appellant against the respondent.
2. The case of the appellant in brief is that she is owner and landlady of plot in dispute having acquired it from her brother by a registered gift deed on 26-4-1983, while the opponent is a tenant on a portion thereof measuring 50 Sq. Yds. She sent a notice under section 18 of Sindh Rented Premises Ordinance, 1979, regarding change of ownership on 20-5-1986 and called upon the respondent to pay the entire arrears of rent at the subsisting rate of Rs,150 per month w.e.f, 26-4- 1983. The respondent failed to pay any rent whatsoever to the appellant. The opponent also raised unauthorised construction on this portion without her consent or approval and impaired the material value and utility of the premises. Hence the prayer for ejectment. The opponent has admitted that he was the tenant of Riaz Shah brother of the appellant. He has, however, denied to have received the notice under section 18 of the Ordinance alleging that he was out of country during that time. He has alleged that the rate of rent was Rs,70 per month and not Rs,150. He has further alleged that the landlord used to collect rent in lump sum for the period of more than one year due to good relations. He has also admitted having raised construction but alleges that the same was done with the permission of the original landlord long before the premises were gifted to the appellant.
3. The learned Rent Controller after taking into consideration, the evidence adduced by the appellant alone and the contentions of his advocate, as the respondent had not led any evidence whatsoever, came to the conclusion that from the receipt produced alongwith the written- statement filed by the opponent it appeared that rent of 16 months at the rate of Rs,70 was paid to the original owner on 30-4-1981 at one time and, therefore, the practice of accepting rent in lump sum was established. The Controller further held that the notice under section 18 of the said Ordinance was not served as the passport filed alongwith the written-statement showed that the respondent was out of Pakistan during the relevant time and that the appellant had admitted this fact.
4. It may be pointed out that by now it is settled law that the mere fact that landlord had accepted rent from the tenant periodically does not mean that he does not desire or expect rent to be paid in time as required by Ordinance. Reliance in this connection is placed in the case of Mst. Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489 where it was held that the defence based on the ground of landlord receiving or collecting the rent at intervals of several months is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent from the tenant. The report related to a case which was identical to the present case on facts and in that case only a single receipt was produced to show lump sum payment of the arrears. The Supreme Court, therefore, held that production of one solitary receipt showing lump sum payment of the arrears of rent would not lead to presumption that practice of receiving rent periodically was adopted by the landlord. In the present case not even a single receipt has been produced. The photo copies of certain receipts and not the originals which were filed with written-statement and are also in the name of a different tenant have been relied upon and believed by the Controller as a proof of the rent being Rs,70 per month and of practice of lump sum payment, which cannot be approved.
5. The finding of the learned Rent Controller that the notice under section 18, was not served upon the respondent is also not acceptable. The appellant had examined her attorney and had produced the registered notice alongwith registration receipt sent on the admitted address of the respondent.
6. The fact that the photo copy of passport of the respondent filed with the written-statement showed that it was issued in 1982 and renewed upto 1987 and again issued thereafter does not prove the point that he had never returned to Pakistan after 1982 and the notice was not served upon the respondent. The original passport has not been produced. The name of holder is shown as Ali Muhammad s/o Nabi Bux, while the name of the tenant is Muhammad Ali s/o Ali Muhammad.
Moreover, the respondent after filing, the written-statement did not appear on any date. He did not even step into witness box to withstand the test of cross-examination after filing his affidavit in evidence and therefore the Controller had to remove the affidavit from the record. He did not examine any witness in his support. Hence the written-statement of the respondent could not have been taken as a piece of evidence by itself nor the documents filed alongwith written-statement could have been taken as a piece of evidence, without being proved by somebody competent to testify, It is all the more necessary for the parties to step into the witness-box or to produce witnesses so that they could be tested on the touchstone of cross-examination. Reference in this connection may be made to the case of Mst. Gul Farosha v. Umar Gul etc. 1985 CLC 810 where it was observed that it is well-established that pleadings cannot take place of evidence unless the person concerned was examined as a witness in the case. Reliance is also placed in Mst. Khairun Nisa v. Malik Muhammad Ishaq PLD 1972 SC 25 where it was held that the written-statements cannot be the exhibit in the case without the person who filed the same being examined in the Court.
7. Even otherwise if a notice under section 18 of the Ordinance was not served on the tenant it would not amount to negation of the relationship of landlord and tenant between the parties. It is the duty of a tenant to pay rent to the original owner so long as he is unaware of change of title and to the new C owner after he becomes aware of the change of title on the institution of the ejectment application which also has not been done. Reliance in this connection is placed on the case of Muhammad Yousaf v. Mehraj-ud-Din 1986 SCMR 751 where it was held as follows:- "It is neither supported by statute nor any principle of law that if a notice under section 13-A, of the Ordinance (West Pakistan Urban Rent Restriction Ordinance 1959) is not served that would amount to absence of relationship of landlord and tenant."
' It was further held as follows:-- "That being so, rent having admittedly not been paid, after the institution of the application for eviction which has also been treated as notice under section 13-A, the respondents were liable to be evicted."
8. It may also be pointed out that a tenant who applies lock to the premises and leaves the country for years together and does not make arrangement for payment of rent to the landlord can be ejected by the Controller on the ground of default. He cannot take shelter behind his absence from the country.
9. I am, therefore, of the clear view that the impugned order of the learned Rent Controller cannot be sustained in the eyes of law. Consequently, I allow the appeal and set aside the order of learned Rent Controller. The ejectment application is allowed and the respondent is directed to hand over the vacant possession of the premises to the appellant forthwith. The rent deposited by the respondent be paid to the appellant.