' This appeal is directed against the judgment, dated 8th August, 1988, of IIIrd Senior Civil Judge, Karachi Central in Rent Case No,338/88 whereby the ejectment application of the appellant was dismissed. The appellant had sought the ejectment of the respondent on ground of default in the payment of rent from September 1984 to February 1986 and on the ground of personal.
Requirements of the appellant. The defence of the respondent was that he was paying uptodate rent until October 1986 and from then onward he was depositing the same in Misc. Rent Case No,43/87. Learned Rent Controller dismissed the ejectment application on both the counts. Hence this appeal. Have, heard learned counsel for the parties and gone through the evidence on record.
2. The ejectment application was filed in February 1986 and the allegation of the appellant was that the rent had not been paid since September 1984 and the defence of the respondent was that he had paid rent upto October 1986 and after that he was depositing the same in the Court. It was therefore for the respondent to prove the payment of rent for all this long period of nearly two years. It is pertinent to note that prior to the institution of the ejectment application the appellant had served notice upon the respondent through A/D post on 26-9-1985. The sending of this notice and its delivery on the address of the respondent are both proved through the production of a postal receipt Exh. 'G' and A/D receipt Exh. 'H'. The respondent has denied the service of this notice but apart from his bare denial he has led no evidence in support of his claim. Under section 114 of Evidence Act there is presumption that a letter duly posted on a certain address is delivered at that address within the usual time. This presumption is in respect of ordinary post and this becomes all the more strong in case of registered post. No doubt, such a presumption is rebuttable and the person denying the service of letter sent to him by post has a right to lead evidence in that regard.
However, mere denial of receipt does not discharge the onus placed upon such person. In this particular case, the appellant has proved through postal receipt Exh.`G' that he sent notice dated 28-9-1985 to the respondent on his correct address and has further proved its receipt at the given address by producing A/D receipt Exh.`H'. The mere fact that A/D receipt is not signed by the respondent but by Imran is not enough to rebut the presumption in favour of the receipt of notice by the respondent. The judicial notice can be taken of the fact that a Postman usually delivers registered letters to any adult person found at the address given on the registered letter and obtains his signatures on A/D slip and as such there is nothing suspicious if the A/D receipt is signed by one Imran. It was for the respondent to show through reliable evidence that no Imran lived with him and he could have also examined the Postman in this regard which he did not do.
Under the circumstances I disbelieve the respondent when he says that he did not receive the notice dated 28-9-1985 and hold that this notice was duly received by him. Copy of this notice is produced by the appellant as Exh. `F. In para-2 thereof the appellant had clearly stated that the respondent had failed to tender the rent since September 1984 till to date. The respondent did not send any reply to the notice. I am of the view that if he had been tendering the rent regularly and was not a defaulter for a single month till September 1985 (when this notice was sent to him) he would have sent immediate reply of this notice. In his written statement he stated that the appellant was not issuing rent receipts in spite of demand. The appellant denied this in his cross- examination where he stated that it was incorrect that he was not issuing the rent receipts. The Respondent seems to have changed his stance during the course of evidence when he stated that he always obtained rent receipts, whenever he paid the rent to the appellant but if the rent was paid on his behalf by someone else during his absence, the appellant did not issue any receipt. Even so, the respondent must have obtained a number of receipts in this manner and not merely two which he produced in evidence as Exhs.0/2 and 0/3. These receipts are in the handwriting of someone else and the appellant admits his signatures thereon and they purport to be for the months of March 1986 and July 1986 respectively. It is, however, evident that the figure `1986', specially the last digit '6', appears to be overwritten.- The learned Rent, Controller has also conceded to this position and has held that there is overwriting. However, strangely enough, he has observed that this over-writing was done by the appellant. There is no basis for such observation. These two receipts are therefore suspicious and cannot be relied upon. Ihe circumstances of the case also indicate that they cannot be for the months of March 1986 and July 1986 because the appellant had filed ejectment application in February 1986 on the basis of default in* the payment of rent since September 1984 and he would not have issued receipt Exh.0/2 in the very next month after the institution of the ejectment application thus rendering it non-maintainable. The obvious inference is that these receipts pertain to the years prior to 1984 and the respondent has tempered with the dates in a manner which is obvious even to the naked eye. After these receipts are gone from the evidence there is hardly any other evidence on record to prove that rent from September 1984 to February 1986 had been paid by the respondent. Here a reference may be made to the evidence of R.W.2 Mohammad Tariq Khuram who stated in his affidavit-in-evidence that "it was within his knowledge that whenever the appellant came to collect rent from the respondent and the respondent was present in the house and himself paid the rent, then the appellant issued the rent receipt but if the respondent was not present in his house when the appellant came to collect the rent and the rent was paid by other inmates of the house, then no receipt was ,liven by the appellant". It is thus not possible to believe that the inmates of the house would pay the rent and yet not demand. Receipt from the app +Lint. Besides, where have all those receipts gone which were obtained by the respondent when he himself paid the rent? The respondent had produced only two' receipts and both of them have the dates overwritten and on that account are unreliable. After going through the record, I am satisfied that the respondent has failed to pro: e that he had paid the rent for the disputed period. The findings of the learned Rent Controller in this regard are based on misappreciation of evidence. Learned Rent Contoller has unnecessarily referred to the proceedings which had taken place before the Area Councillor. These proceedings were irrelvant in so far as the allegation of default was concerned. I am therefore of the view that the respondent has failed to discharge the onus placed on him to prove that he has paid the rent for the disputed period and he is therefore liable to ejectment on the ground of default in the payment of rent for the said period.
3. In so far as the personal requirements of the appellant are concerned, I am of the view that the appellant has failed to establish the bona fides of the same. In his ejectment application he had merely stated that he required the disputed house for his personal bona fide use as well as for the use and occupation of his children. When it was pointed out to the learned counsel for the appellant that he has not eleborated upon his personal requirements he replied that evidence is not discussed in the pleadings. Of course, evidence is not to be given in the pleadings but the question is that a landlord should make-out a plausible case even in the ejectment application. For example, if his personal requirments require more space, he should say so. If he is living in a rented house and now wants to shift to his own house, then again he should say so. If due to any other reason he finds it difficult or incovenient to continue living in the present premises, he should clearly say so. In short, a landlord is expected to make out a plausible case even in the ejectment application. In para. 8 of his affidavit-in-evidence he stated that the present accommodation in his possession consisted of two-small rooms made of cement blocks with sheets and there was neither sui gas nor flush system in the premises and that even they were rented premises and that there were no educational facilities for the children around the premises. The averments made by the appellant in para. 8 of this affidavit in evidence are in contradiction with para. 3 of his notice dated 28-9-1985 Exh.'F' wherein he had stated that he was residing with her widow sister in her house and accommodation was insufficient for the two families. Learned counsel for the appellant explained that subsequent to the giving of the notice the appellant had moved from the house of his widow sister to a rented house. If this were the position, this development should have been clearly given in the affidavit-in-evidence but this is not so. It appears that para. 3 of notice Exh.'F' was totally forgotten when affidavit-in-evidence of the appellant was prepared. Moreover, the address of the appellant as given by him in his ejectment application is '9/23 Qayoomabad, Korangi Road, Karachi' and the same address is also given in the affidavit-in-evidence of the appellant and yet the appellant wants the Court to believe through the evidence of A.W.3 Mohammad Amir that he is living in House No,B/7/16, Qayoomabad Korangi' Road, Karachi as a tenant of Mohammad Asif Jawed through his attorney A.W.3 Mohammad Amir. It may further be noted that this appeal was filed much after the filing of the affidavit-in-evidence of the appellant and yet even in the memo of appeal the address given is the same "9/23 Qayoomabad Korangi Road, Karahi." This shows that A.W.3 Mohammad Amir cannot be believed when he said that the appellant was living in house No,B/7/16 Qayoomabad, Korangi Road, Karachi as a tenant of Mohammad Asif. This. A.W.3 Mohammad Amir claims to be special attorney of Mohammad Asif Jawed but the special power of attorney itself is rather suspicious inasmuch as that it purports to have been executed on 10th October, 1985 but the Notary Public has attested it on 10-7-1985, i,e. To say, it was attested three months prior to its execution. I am of the considered view that far from proving the bona fides of his personal requirements, the appellant has not even been able to show what his requirements are. Learned Counsel for the appellant referred me to the following judgments in so far as his personal requirements were concerned.
(1) Abdul Qadeer v. S. Azeemuddin (1987 CLC 2347).
(2) M/s. Ever Ready Pictures Ltd v. Chaman Begum (PLD 1982 Kar. 770).
(3) Mohammad Ali v. Bansi Mal (1987 CLC 487).
(4) Hassan Khan v. Munawar Begum (PLO 1976 Kar 832).
(5) Mst. Toheed Khan v. Mohammad Shamshad (1980 SCMR 593).
(6) Firdous Begum v. M. Siraj and Brothers (1988 CLC 802).
(7) Mohammad Yaseen v. Syed Nisar Ali Khan (1900 CLC 1274).
(8) Syed Mushraf Ali v. Mst. Qamar Ara Begum (1989 CLC 644).
(9) M/s. Sel Best Advertisers Limited v. Mst. Amtul Hafeeza Karim Nawaz, (1989 CLC 46).
(10) M/s. Hafeezan Cold Company v. Abdul Qayoom (PLD 1987 Quetta 197).
(11) Shaikh Mohammad Ibrahim v. Additional District Judge (1989 CLC 49).
(12) M/s. Habib Bank Ltd v. Thul Jute Mills Limited (1988 CLC 2310).
(13) Sultan Press Ltd v. Mohammad Hassan (PLD 1985 Kar. 624).
I have gone through the above-reported judgments and I am of the view that the appellant cannot derive any benefit from them because his evidence on the point of his personal requirements is vague and unconvincing and not in conformity with his pleadings. Learned Counsel for the respondent also referred to the Judgments reported as 1990 CLC 399 (Mrs Azra Kazi v. Syed Sirajuddin) and 1984 CLC 1061 (Mst. Jana Bibi v. Mst. Gulshan) to show that if the landlord fails to show how all of a sudden the present accommodation has become insufficient, then the bona tides of the claim of the landlord cannot be believed and that when evidence regarding personal requirements is at variance with pleadings, it cannot be believed. Both these judgments are directly applicable to the present case because no plausible explanation is given for the requirements of the landlady. Affidavit-in-evidence pleads marriage of daughter but it is not pleaded in the ejectment petition and, moreover, after marriage daughter is expected to go to her husband's house, and the special circumstances in which she is allegedly still living with her mother have not been given even in affidavit-in-evidence of the landlord. However, the third judgment relied upon by the learned counsel of respondent boomerangs against the landlord. This is PLD 1991 SC 590 (Faqir Mohammad Mst. Mohammad Bibi) in which is it held that "law and the Courts of law assist only those litigants whose claim and approach to the Courts are based on honesty and good faith and when these things are lacking, relief is denied to them." The way in which the respondent has produced only two rent receipts for the two years default period even though he had admittedly received receipts (whenever he himself paid the rent) and even those two were overwritten on the crucial figure of the 'year' to which they related, rather alienates the sympathy of the Court in the light of this judgment.
4. 1, therefore, hold that the appellant has not been able to prove the bona fides of his personal requirements and the findings of the learned Rent Controller in this regard are upheld.
5. Since the point of default is decided in favour of the appellant, the impugned judgment is set aside and to this extent the appeal is accepted with the result that i,e, ejectment application stands allowed. The respondent is accordingly directed to put the appellant in possession of the demised premises and he is allowed two months time from today to do the same. The respondent shall also bear the costs of the proceedings.