' This appeal is directed against the order dated 12-10-1983 passed by the Ist Senior Civil Judge and Rent Controller, Hyderabad, allowing Rent Application No,44 of 1983 filed by the respondent against the appellant for his eviction.
2. The appellant is tenant in respect of the premises situated on second floor of the building, on plot bearing C.S. No,D/870, on monthly rent of Rs,55. The eviction was sought on the grounds of default in payment of rent from October, 1981 and bona fide requirement of the premises for the use of respondent and her children.
3. The appellant in his written statement pleaded that the rent for the month of October was sent by Bank Draft to the respondent at her Karachi address where she is permanently settled but the same was returned. The plea of personal requirement was denied. It was stated that the respondent owns a bungalow in Latifabad and the said ground has been taken to pressurize the appellant to increase the rent. It was alleged that the case was filed with mala fide intentions.
4. The learned Rent Controller granted the application on the ground that the premises was bona fide required for the personal use of the respondent.
5. I have heard the learned counsel Mr. Raja Khan for the appellant and Mr. M.M. Aqil for the respondent.
6. It was contended by the learned counsel for the appellant that the respondent had also filed a rent case for eviction of the tenant from the aforesaid bungalow situated in Latifabad and during pendency of this appeal the possession thereof was taken over by the respondent and she is now residing in the said bungalow. The learned Advocate brought to my notice CMZ. 158/90 filed by the appellant under section 20 of the Sindh Rented Premises Ordinance, 1979 read with Order 41, rule 27, C.P.C., seeking permission to bring the certified copies of two proceedings relating to the aforesaid rent application and the execution application filed by the respondent against the tenant of the aforesaid bungalow. The appellant also filed his affidavit in support of the said application wherein it was specifically deposed that the said Bungalow is in use and occupation of the respondent. The said application came up for hearing on 4-9-1990 and was granted by consent subject to all just exceptions. The said documents established that the respondent has taken over the vacant physical possession of the said Bungalow pursuant to the writ of possession issued by the learned Rent Controller and such fact was confirmed by the Advocate of the respondent in his statement filed in Court on 8-1-1985.
7. The learned Advocate for the appellant on the basis of the above facts contended that the requirement of the respondent for the demised premises for her use and occupation does not exist any more and this ground is no more available to the appellant. He has submitted that this Court is competent to take into consideration, the subsequent events that have taken place during the pendency of the litigation. In this regard he placed reliance on Muhammad llyas v. Hussain Sadak 1990 ALD 415 (1). The facts of the said case were similar to the present one inasmuch as the landlord had succeeded in obtaining possession of another premises in the proceedings commenced against the tenant of that premises and the learned Judge of this Court reached the conclusion that the need of the landlord of the premises was no longer valid in law after having come in occupation of one tenement consisting of two rooms with all necessary attachment such as bath room and kitchen etc. It was also observed that it is now well-settled proposition of law that the appellate Court may take into consideration the subsequent happenings of the events until the final disposal of the appeal. It is therefore held that the need of the respondent of the premises in dispute for her and her children's occupation, has ceased to exist and the said ground is no more available to her for eviction of the appellant.
' The learned counsel for the respondent has however contended that the said bungalow is not situated in the same locality where the premises in question is situated and therefore it is not suitable for requirement of the respondent. This submission was not elaborated any further, except that it is the prerogative of the respondent to choose the premises where she would like to reside and she cannot be forced to continue to live in the Bungalow which is now in her occupation.
' The case of the respondent as set up in the eviction application was that she required the premises for her residence at Hyderabad as she had to come to Hyderabad from Karachi for the purpose of collection of lease money from the lessee of her agricultural lands situated near Hyderabad city and because of want of her own accommodation she had to reside with her relatives at Hyderabad. It is further noted that the premises in dispute is a flat situated on second floor of the building. The appellant's averment made in the affidavit in support of the application for bringing additional evidence on record, to the effect that the respondent was residing in the Bungalow situated in Latifabad, was not challenged. If the said premises was not suitable for the respondent, she could have filed the counter-affidavit to project the case that the said bungalow was not suitable to her needs. The question of prerogative to choose the premises does not arise where the landlord though in possession of another premises owned by him fails to establish unsuitability of the premsies occupied by him. However, looking at the manner in which the ground of personal requirement has been couched in the affidavit in evidence filed by the respondent, the contention raised by the learned counsel is of no substance. It is, therefore, held that the ground of personal requirement after taking over the possession of the bungalow in Latifabad, is no more available to the respondent. The finding of the learned Rent Controller on the above issue is therefore set aside and reversed.
8. The learned counsel for the respondent relying on the case of Ismail v. Mst. Sher Bano (1988 SCM R 772) rightly submitted that the respondent can assail the finding given by the Rent Controller on the ground of default even in the absence of any cross appeal or objection.
9. In this regard it was contended by the learned counsel for the respondent that so far as rent for the month of October, 1981 is concerned, it cannot be said to have been legally tendered by the appellant to the respondent. The argument was based on the fact that under postal cover produced as Exh.13/1, the appellant sent Bank draft on 28-11-1981 to the respondent at her address described as Sindh House Flat No,1, B.O.R., Bath Island, Karachi. The postman returned the said envelope with the endorsement that it was refused by the addressee. The other envelope under which two Bank drafts were despatched at the same address was returned by the postman with the report that no person by the name of the addressee was residing at the said address. It is Exh.13/2. The third envelope was sent on 16-2-1982 at the office address of the respondent which was received by her. According to the learned counsel for the respondent the appellant ought to have examined the postman to establish the fact that Exh.13/1 was refused by the respondent and in absence of such evidence, it cannot be presumed that addressee had, in fact, refused to receive the envelope and particularly so looking at the fact that the other envelope was returned to the appellant with the endorsement that the respondent was not residing at the address. He has placed reliance on the case of Shamsher v. Syed Ahsan Ali Shah (1983 CLC 308). In the said case the addressee of the envelope appeared before the Court and stated on Oath that the money orders in question were not offered to him and the Court held that because of such statement the presumption if any was sufficiently displaced. In the present case the appellant in her written statement has specifically stated that he had sent the rent by bank draft to the respondent at her Karachi address where she was permanently settled. Such averment made by the appellant was not assailed by the respondent in her affidavit in evidence. She has also not stated that she had not refused to receive the postal cover sent to her by the appellant. All that she has stated is that the three drafts dated 28-11-1981, 23-1-1982 and 4-3-1982 were not received by her. In her cross- examination the respondent admitted that the appellant has sent to her bank draft on two occasions but she refused the same. In view of this admission, the contention raised by the learned counsel is without any substance. The case relied upon by him also does not help him in any manner.
10. There is no written tenancy agreement between the parties. The rent for the month of October became payable on 1-11-1981 and it was tendered by bank draft dated 28-11-1981 which was sent under postal cover dated 4-12-1981, within the grace period of 60 days allowed by law, which was refused by the respondent. The payment was therefore repeated by another bank draft dated 23- 1-1982 which was also refused and thereafter two months' rent was tendered by bank draft dated 4-3-1982 which was also refused. It may however be further clarified that the said bank drafts were despatched to the respondent at the same address which was disclosed by her, in her eviction application filed against the appellant, in May, 1983. It therefore cannot be said that the appellant had committed default in payment of rent.
' The appeal was allowed by short order dated 5-7-1992 and above are the reasons therefor.