1. ' The appellant filed application for ejectment of the respondent on 1-2- 1983 seeking ejectment in respect of a shop bearing No,17-A situated at Hassan Ali Afendi Road, Karachi. The grounds for default were that the respondent has committed default in payment of rent from July, 1980 till the filing of the ejectment application. It was also stated that the premises is required for personal bona fide use of the appellant. The claim was also made on the basis of causing damage to the building, materially effecting the value of the shop, but it has not been pressed. In the written statement it was pleaded that according to the prevailing practice the respondent used to pay six monthly rent to the appellant which was in force from the year 1971 and continued without any objection. It has been alleged that as the appellant refused to accept the rent it was remitted by money order and ejectment application bearing No,5131/80 was filed showing Shaikh Feroz Din as tenant of the premises and claiming rent at the rate of Rs,360 p.m. As well as on personal grounds.
2. This application was dismissed by the Controller. Another application bearing No,815/82 was again filed on the personal ground, but it was withdrawn on objection being raised on its maintainability.
3. It was denied that the respondent had defaulted in payment of rent. Other claims made by the appellant were also denied. It was also pleaded that the respondent sent a bank draft dated 28-1- 1983 to the applicant covering rent upto June, 1983 which has been received by the applicant. The learned Controller dismissed the ejectment application.
4. ' Mr. Khawaja Sharful Islam the learned counsel for the appellant has contended that wilful default by the respondent is fully established from the evidence on record. The appellant claims default from July, 1980 to February, 1983. The appellant had filed ejectment application No,5131/80 in respect of default for the months of July and August, 1980, but it was dismissed in December, 1981.
5. Again he filed an ejectment case bearing No,815/82 on the grounds of default from July, 1980 to January, 1982 but it was withdrawn as in the application he had, stated that premises was rented out at Rs,360 instead of Rs,60. The third application is 483/83 renumbered as R.C.472/85 out of which this appeal arises. A close scrutiny of the defence raised by the respondent will show that he has pleaded practice of payment of rent every six months. This has been denied by the appellant and no authentic evidence has been produced that there has been a long, continuous practice between the parties due to which the respondent used to pay rent every six months and this practice was so constantly followed that the respondent was misled in not paying the rent every month. The evidence produced by the respondent is of remitting a money order for rent of six months. The respondent produced a money order remittance receipt but the money order coupon in case of refusal or receipt in case of acceptance which should be in possession of the respondent was not produced. A remittance receipt according to Mr. Sharful Islam is not a proper and authentic evidence of payment of rent. On the other hand Mr. Rashidi the learned counsel for the respondent has contended that the fact that money order has been despatched, inference is that it would have been delivered to the appellant. In cases where payment by money order is disputed it is proper to examine the postal authorities to establish remittance, delivery and acceptance or refusal of such amount. Furthermore, the procedure prevalent for remitting money order requires that the money order is tendered with a form by the postman and if it is accepted a receipt is given by the payee and if it is refused then the same is returned to the remitter with an endorsement of refusal. In case of acceptance the receipt is deliverer to the remitter. Therefore, where such an authentic procedure has been provided mere receipt for remittance of money order, photo copy of which has been filed, cannot be treated as an authentic document to prove that the money order was remitted.
6. ' The learned counsel for the respondent stated that the money order was for a period of six months but he is unable to state whether it was received by the appellant or not. In any case no proof of receipt has been produced.
7. The respondent claims that a bank draft for Rs,2160 dated 29-1-1983 covering the rent from July, 1980 to June, 1983 was remitted to the appellant. A photo copy of the bank draft and certificate of the bank that such draft was issued B in favour of Bhatti has been filed with the written statement.
8. Mere issuance of a bank draft by the bank in favour of a person does not prove that it was delivered and encashed by the payee. Except the statement of the respondent that this bank draft was delivered to the appellant no other proof has been produced. The appellant has denied receipt of this bank draft. It is not known whether the respondent had delivered it personally, through any other person or by post. No evidence of such a nature has been produced by the respondent. If the bank draft would have been delivered to the appellant and encashed by him a certificate from the bank certifying its encashment would have established that such a bank draft was encashed. Even such certificate has not been produced. Therefore, mere obtaining a bank draft without proof of payment made to the appellant, it does not improve the respondent's case.
9. Furthermore, this very bank draft exposes the contradictory stand taken by the respondent. If the appellant had paid the rent from July, 1980 to December, 1980 through money order there was no necessity of paying the said rent again through the bank draft. This clearly demonstrates that rent from July, 1980 to December, 1980, and thereafter upto July, 1983, was not paid. On his own showing he attempted to pay it through a bank draft which too has not been proved. The appellant has therefore, fully established the default in payment of rent.
10. ' The second ground pressed by the appellant is that he requires the premises for his personal requirement. This has been contested by the respondent. It has been alleged that the appellant is carrying on business on the first floor. However, the evidence does not support this contention. It is clear that the appellant is carrying on his business at his residence and has expanded it by D obtaining import and export licence and requires the shop in the city business area where the disputed shop is situated. The learned counsel for the respondent has shown two newspapers in which the appellant had issued a public notice on 28-10-1986 and 12-11-1986 in which it was stated that a shop has been given to Jamshed Ali on rent who is carrying on business under the name and style of J.K. International Distribution Company and that he/landlord has nothing to do with the business. This according to Mr. Kharal shows that the appellant had rented out the shop somewhere near the dates when the notices were published. Firstly, this notice is not on record, nor it has been produced through additional evidence. However, on merit,it does not improve the respondent's case as from the notice it cannot be inferred that the shop was rented out on or about the dates of publication. It describes that the shop has been given on rent and the landlord has no connection with the business. The appellant has therefore succeed end in proving his personal bona fide requirement as well. The order of the learned Controller is therefore, set aside.
11. The ejectment application is allowed and six months time is granted to the respondent to vacate and hand over the premises to the appellant.