' SAJJAD ALI SHAH, J.---This appeal with leave is directed against judgment dated 12-2-1992 of High Court of Sindh at Karachi, whereby F.R A. No, 1188/87 is allowed and in consequence order of the Rent Controller is set aside and eviction is granted on the ground of default.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant and respondent before us are tenant and landlady respectively (to be referred hereafter as such) in respect of tenement on the ground floor situate on Plot No, 69-3/D, Nursery Market, Block 'C', P.E.C.H.S., Karachi No,
29. Landlady filed Rent Case No, 893/85 under section 15 of Sindh Rented Premises Ordinance, 1979 on the grounds of default in the payment of rent from July 1984 to January 1985 and personal requirement.
3. Tenant in the written statement took the plea that initially rent was Rs, 1,000 per month vide agreement of tenancy of 3 years which expired in the year 1984. After that on the basis of fresh oral agreement rent was increased to Rs,1,100 per month. Rent for July, August and September, 1984 was paid to the landlady who did not issue receipts. Thereafter rent was sent through money orders in which receipts of the payment mentioned above were demanded. Ultimately tenant started depositing rent in Miscellaneous Rent Case No, 4272/84. Tenant denied that premises were required by landlady bona fidely for her personal use.
4. In evidence, landlady examined her attorney Mst. Yasmin Khan and tenant examined himself and two witnesses namely Khaliq Ahmed And Haji Noor Muhammad. Learned Rent Controller found both issues regarding default and personal requirement against the landlady and dismissed application for ejectment. It would be pertinent to mention that in respect of personal use no mention was made at all in the affidavit of attorney of landlady as such it was presumed that on that ground ejectment was not pressed. In such circumstances appeal was allowed by the High Court and eviction was granted on the ground of default only.
5. Leave has been granted to consider the question whether learned Judge in Chamber was justified in reversing the finding of the Rent Controller particularly in view of contention raised on behalf of tenant that High Court without justification discarded coupons of money orders which fully supported plea of the tenant that default was not committed.
6. It is submitted by Mr. Motiani, learned counsel for the tenant that rent was paid to the attorney of landlady for July, August and September, 1984 but she did not issue receipts. Mst. Yasmin, attorney of the landlady denied categorically in her affidavit of evidence in paragraph 7 about payment of rent by tenant for July, August and September, 1984 as claimed by him and she also denied receipt of money orders from him. In such circumstances burden shifted on tenant to prove that default was not committed and rent was paid in the manner asserted by him. In the written statement plea was taken that attorney of the landlady refused to issue receipts after accepting rent for July, August and September, 1984 and thereafter money orders were sent in which demand was made for issue of receipts for that period for which rent was accepted. When Mst. Yasmin was being cross-examined it was suggested to her that tenant paid rent to her through A. Rehman. She admitted that A. Rehman was also her tenant but denied the fact that she received rent from him on behalf of tenant in this case. Tenant averred in his evidence in general terms that sometimes he used to send rent to the attorney of the landlady through his brother Khaliq Ahmed and sometimes through A. Rehman, who is also tenant of the landlady. At one place in the cross-examination tenant has asserted positively that he paid rent for months of July, August and September, 1984 through A. Rehman and requested for receipts. A. Rehman is not produced by the tenant as witness.
7. Mr. Motiani stated before us that A. Rehman was not produced because he is tenant of the landlady and would not have deposed in favour of the tenant. No evidence is produced to show that he was approached and declined to give evidence for the reason stated by the tenant. Both witnesses Khaliq Ahmed brother of tenant and Haji Noor Muhammad stated in their evidence that rent was paid to the attorney of landlady through A. Rehman. In the circumstances, it was essential for the tenant to have produced A. Rehman in support of his plea which he has failed to do. There is nothing on the record to indicate that A. Rehman was approached and he declined to appear as witness for the tenant.
8. About money orders, there is copy of the money order coupon (at page 48 of paper book) showing that rent was sent for one month and there is note in the receipt that rent for July, 1984 was paid on 9-7-1984 and rent for August and September 1984 was paid on 5-9-1984 but receipts were not received and the same should be delivered to Laiq Ahmed tenant. This money order is addressed to Mst. Yasmin Khan. There is no mention in this coupon about payment through A.
Rehman. There is another money order coupon on the record (at page 50 of the paper book) which shows payment of Rs,1,100 sent to Mst. Yasmin Khan by tenant Laiq Ahmed and in this coupon also there is note that receipts for July 1984 to October 1984 may be supplied immediately. There are other two receipts in the record (at pages 52 and 54 of paper book) with similar note demanding receipts from July 1984 to October 1984.
9. Now Mst. Yasmin Khan denies having received these money orders. Tenant should have produced postman to prove that these money orders had reached Mst. Yasmin Khan who refused to accept the same. There is difference between endorsement by the postman about return of money order undelivered and refusal to accept the money order. In case of refusal it can be said that addressee after reading the contents of the money order refused subsequently and in that manner knowledge could be attributed to the addressee that in the note of the money order there was demand for issue of receipts.
10. There is notice dated 29-1-1985 on the record sent to the tenant by Advocate of landlady in which demand is made for payment of rent from July 1984 to January 1985 at the rate of Rs,1,000 and not at the rate of Rs,1,100 per month as claimed by the tenant. It is admitted by the tenant in his cross-examination that he received notice from the attorney of the landlady and denied that he did not reply. He further stated that he sent draft of tenancy. Now if he accepted the fact that he received notice then in the notice there was demand for payment of rent from July 1984 to January 1985, which included period for which tenant claims to have paid rent and did not receive receipts.
Miscellaneous Rent Case No, 4207/84 was filed on 10-12-1984 and deposit was made on 13-12-1984.
First deposit was Rs,3,300 as rent for three months October, November and December, 1984. Second deposit was made on 8-1-1985 of Rs,2,200 for January and February, 1985.
11. For reasons stated above we are satisfied that tenant has failed to produce satisfactory evidence to show that default was not committed and he paid rent as claimed by him and attorney of landlady refused to issue receipts for July, August and September, 1984. We are unable to find any flaw or legal infirmity in the judgment of the High Court. We, therefore, dismiss this appeal which has no merits. One year's time is allowed to the tenant to vacate the premises subject to the payment of rent failing which writ of possession would issue without notice.