1. ' This is a first rent appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against an order dated 16-9-1992 passed by IInd Senior Civil Judge and Rent Controller, Karachi-Central, in Rent Case No,322 of 1990 (Mrs.. Samina Kausar v.
2. Muhammad Shafi) whereby the eviction application under section 15 of the Rent Ordinance was allowed and the appellant/tenant was directed to hand over vacant possession of the premises to the respondent/applicant within 45 days from the date of impugned order.
3. ' Brief facts of the case are' that the respondent filed eviction application against the appellant/tenant in respect of Premises No,C-102, Block T , North Nazimabad, Karachi, which was rented out to the appellant/tenant on 1-6-1987 at the monthly rent of Rs.3,400 and other charges for the period of eleven months initially and after the expiry of the said period, fresh agreement was executed in the month of June, 1988 at the rate of Rs.3,700 per month on the grounds that the appellant/tenant has committed default in the payment of rent with effect from March, 1989 and further that the said premises was required by the respondent/applicant in good faith for her own use and for the use of her husband and children.
4. ' The appellant/tenant filed written-statement wherein he admitted to be the tenant of the respondent/applicant and stated that after expiry of period of second agreement, the respondent asked the appellant/tenant for the increase of rate of monthly rent to which inability was shown and the respondent/applicant refused to accept the rent, therefore, rent was remitted for the months of March and April, 1989 under postal money-order which was returned with the endorsement of the post office that the respondent was informed but she did not come to collect the same and thereafter the appellant/tenant filed M.R.C. No,445 of 1989 wherein rent was being deposited regularly hence there was no default in the payment. So far the ground ,of personal requirement of the respondent, the appellant has stated that the former has number of other properties one of which was D-61, Block 'B', North Nazimabad, Karachi, on which a marriage hall namely 'Star Palace' has been built and the respondent was residing on the top of said marriage hall which accommodation was spacious, therefore, the respondent's requirement was not in good faith. , ' The respondent filed affidavit-in-evidence of Muhammad Farooq, Attorney of the respondent who produced photo copy of general power of attorney, photo copy of relation order by way of gift, photo copy of agreement of tenancy, dated 1st June, 1987, photo copy of second agreement, dated 18-6-1988, photo copy of notice for vacating the house. The appellant/tenant filed his own affidavit-in-evidence and produced one postal money-order coupon as Exh.D/1, affidavit-in- evidence of Muhammad Majeed. The deponents who filed the affidavit-in-evidence were cross- examined by the respective adversary counsel of the parties. After recording the above evidence and hearing the counsel of the parties the impugned order was passed.
5. ' I have heard the learned counsel for the parties, perused the record and proceedings of the case and the case law cited by them.
6. ' The learned counsel for the appellant has argued that after the expiry of second tenancy agreement, the respondent wanted to enhance monthly rent but the appellant showed his inability to enhance the rate of rent and former refused to accept the rent consequently the appellant made deposit of rent of Rs.14,800 on 25-5-1989 being rent from March, 1989 to June, 1989 in M.R.C.
7. No,445 of 1989 and thereafter, monthly rent from July, 1989 till May, 1990 was deposited on 20-7- 1989, 22-8-1989, 14-10-1989, 6-11-1989, 6-12-1989, 9-1-1990, 13-2-1990, 7-3-1990, 11-4-1990 and 13-5- 1990, therefore, there was no default in the payment of rent on the part of appellant. Learned counsel for the appellant has also argued that as per para. 8 of second tenancy agreement, the appellant could be evicted only if he failed to pay .Monthly rent continuously for three months on the notice of fifteen days from the respondent, therefore, on the ground of default in the payment of rent in this circumstances, eviction could not be ordered. He has further argued that the power of attorney produced by respondent's witness Muhammad Farooq is not attested by witnesses, therefore, the evidence of the witness should be discarded. He has further argued that the respondent has not produced any document showing that she was residing in the house which belonged to her brother and that no evidence has been produced that the respondent's brother made any demand from the respondent to vacate the premises and thereby the respondent has failed to prove her requirement in good faith. Learned counsel for the appellant has placed reliance upon (i) Montessori Home v. Muhammad Shekoh Salim (1995 CLC 1353), (ii) Muhammad Sharif Khan v. Mst. Ismat Bibi and 4 others (PLD 1982 SC (AJ&K) 76) 110) Mst. Farukh Nisa v. Safdar Ahmed and six others (PLD 1985 Karachi 639) and (iii) Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai (1982 CLC 1444) in support of his contentions.
8. ' Learned counsel for the respondent has argued that para. 8 of second tenancy agreement is inconsistent to the provisions of Rent Laws, therefore, it cannot be enforced consequently default in payment of rent would be governed under the Sindh Rented Premises Ordinance. He has placed reliance upon in support of his contention Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190). Learned counsel for the respondent has contended that the appellant did not tender rent through money-order for the months of March and April, 1989 considering that neither the postal money-order receipt nor the postman has been examined to say that it was tendered and refused.
9. He further, argued that as per para. 5 of second tenancy agreement the appellant was to pay monthly rent by 5th of each month in advance according to English Calendar but the appellant/tenant did not tender rent for the month of March by 20th March, 1989, so also for the month of April 1989 by 20th of April and so on so forth as required under section 15(2)(ii) of Rent Ordinance, therefore, the appellant was defaulter in the payment of rent. He further argued that non-attestation of power of attorney would not be fatal to the case of the respondent and it was a mere technicality which is to be avoided in the circumstances of the case, considering that even oral authorization would be sufficient. He has placed reliance upon (i) Haji Muhammad Rafiq v.
10. Shahenshah Jehan Begum (PLD 1987 Karachi 180), (ii) Mrs. Escolastica and three others v. Peter D'Souza and two others (1986 CLC 1472), (iii) Allanditta v. Barkat Ali and three others (1992 SCMR 1974) and (iv) Fazal Elahi v. Gul Khan Ahmed Qureshi (1997 SCMR 945) in support of his contention.
11. So far the personal requirement learned counsel for the respondent has argued that the respondent was living in one room with her husband and two children in the house of her brother and the appellant never raised this plea in the written-statement that she was residing in her own house so that she could have produced documentary evidence that the house in which she lived belonged to her brother. He has argued that it was for the appellant to show that the respondent was residing in her own house and not in the house of her brother and further that the appellant has failed to show that any other property allegedly owned by the respondent was in her possession. Learned counsel for the respondent has finally contended that the respondent has proved her requirement in good faith, therefore, the order of eviction passed by the learned Rent Controller is legal and proper.
12. ' Perusal of evidence on record would show that the respondent's attorney and brother Muhammad Farooq in his affidavit-in-evidence has reiterated what has been stated in the eviction application. It has been stated in the affidavit-in-evidence that the appellant has failed to pay rent since March, 1989 till October, 1990 but the appellant/tenant has not challenged the said statement in the cross-examination that the rent for the month of March, and April, 1989 was tendered through postal money order, on 20-4-1989. Mere production of money-order coupon would not prove that postal money-order for the months of March, and April, 1989 was sent to the respondent considering that neither the postal money-order receipt is produced nor postman has been examined in support of the contention of learned counsel for the appellant. The contents of the money-order coupon Exh.D/1 is not in the handwriting of respondent but is in the handwriting of the appellant, therefore, the said document cannot be substitute of due proof in law for the tender of rent considering that anybody could obtain postal money-order form from post office which usually bears postal seal and one could take out required portion of coupon from the form and fillin the required particulars and can also put any fake number of money-order over it. It is the postal money order receipt which could only prove tender of rent. It would not be out of place to state here that onus to prove payment of rent to the respondent from March, 1989 till May, 1990 when the eviction application was filed was on the appellant. The appellant has not cared to file even the rent receipt which he is stated to have deposited in M.R.C. No,445 of 1989 from March, 1989 till May, 1990 except one photo copy of receipt, dated 6-11-1990 though the respondent's attorney Muhammad Farooq in the cross-admitted that he came to know that rent was being deposited in the Court and further that at the time of filing the eviction application, rent was not due against the appellant because it was being deposited in Court but stated that he has not received any arrears and outstanding bills on account of water conservancy, electricity and gas charges. The above statement made by the respondent's attorney would not absolve the appellant/tenant to show that he did tender rent to the respondent in terms of agreement and law. As per para. 5 of tenancy agreement the appellant is to pay rent by 5th of each month in advance and default in payment of rent in terms of section 15(2)(ii) of Rent Ordinance would take place within fifteen days after the expiry of period fixed by mutual agreement between the parties as such rent for the months of March, April, 1989 till May, 1990 was to be paid by 20th of each month. However, as per para. 8 of tenancy agreement the appellant was to be evicted from the premises if he failed to pay monthly rent continuously for three months on notice of fifteen days from the respondent. The second tenancy agreement was executed in the month of June, 1988 between the parties and that was also for eleven months but the appellant has not produced any receipt in respect of deposit of rent in the office of Rent Controller, except the above said photostat copy, to support his case that he did not fail to deposit/tender for continuous three months. However, I find an application for withdrawal of rent, dated 12-1-1991 on the reverse of said application there is a report of the Nazir of the learned Rent Controller that an amount of Rs.14,800 was deposited in Miscellaneous Rent Case No,445 of 1989 on 25-5-1989 which being the rent for four months from March, April, May and June, 1989, therefore, no ejectment could be ordered as per para. 8 of the tenancy agreement considering also that no notice as stated having been served upon the respondent. Besides above the conduct of the appellant/tenant showed that he was making efforts to tender rent but it was not received by the respondent, therefore, rent was deposited in the office of learned Rent Controller immediately hence no wilful and deliberate default could be said to have been committed by the appellant/tenant, consequently the finding of learned Rent Controller on the said account is reversed.
13. ' So far the next ground of ejectment in respect of personal requirement in good faith, the respondent through her attorney in affidavit-in-evidence has reiterated the contents of eviction application stating therein that the appellant was served with a notice, dated 18-2-1989 Exh.A/2 that she required the disputed premises for her own use considering that she has been residing in House No,A-225, Block 'L', North Nazimabad, Karachi, which belonged to her brother and by passage of time the said room has become insufficient to meet her growing needs as well as for the use of her husband and children(though the appellant in the affidavit-in-evidence has stated that the need of appellant was not in good faith but the statement of the respondent's attorney with regard to personal' requirement of respondent could not be shaken. It was sufficient proof for the respondent to show that she was not residing in her own house and it belonged to her brother when once she on oath so stated, the onus shifted upon the appellant to rebut/disprove the said evidence of respondent by showing by oral or documentary evidence that the said house belonged to her and not to her brother. The evidence of respondent could not be shaken in the cross-examination by the appellant's counsel. The appellant has not denied that the respondent has not married and his family has grown after her marriage consequently the family consisted of herself, her husband and her two children, therefore, the accommodation of one room which she has been occupying would definitely be insufficient. Besides the respondent being landlady of the disputed premises_has prerogative right in respect of her own house to live in.It was not necessary for the respondent/landlady to show that demand was made by her brother to vacate the said house or any pressure was placed upon her to vacate the said house of her brother. Every landlord/owner has a right to live in his/her house and he/she could not be deprived only because once it was rented out. The respondent has proved her requirement in good faith and no exception could be taken to the finding of learned Rent Controller.
14. Accordingly I do not find any merit in the contentions of learned / counsel for the appellant that the need of the respondent/landlady is not made in good faith. In the circumstances I find no merits in this appeal which is hereby I dismissed.
15. ' These are the reasons in respect of the short order announced on 16-9-1998.