' This appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the S.R.P.O. 1979) is directed against the order, dated 12-2-1998, whereby the learned IVth Senior Civil Judge/Rent Controller, Karachi East allowed Ejectment Application No,98 of 1989 and the appellant was directed to vacate Shops Nos.8 and 9, situate at Plot No,13/D-6, Nursery Commercial Area, P.E.C.H.S., Karachi (hereinafter referred to as the demised premises).
2. The appellant is tenant of the respondent since 1962 in respect of the demised premises at the rate of Rs.400 per month. The ejectment was sought on the ground of default in payment of rent from June, 1988, till April, 1989, when the ejectment application was filed as well as subletting. The appellant contested the matter and in the written statement denied the allegations. The parties led evidence. Syed Y. Zaidi attorney and husband of the respondent filed his affidavit in evidence and one Mushtaq Zaidi also filed his affidavit-in-evidence in support of the respondent. From the side of appellant, Akhtar Hussain filed his affidavit-in-evidence. All the witnesses were cross-examined by the learned counsel for the parties.
3. The learned Rent Controller framed the following points for determination:--
(1) Whether the opponent has committed default in payment of rent from June, 1988 to onward?
(2) Whether the opponent has subletted the premises?
(3) What should the order be?"
4. On the basis of evidence on record the point of default was answered in affirmative which is now the subject-matter of this appeal.
5. Heard learned counsel ?Or the parties at length and perused the record as well as the case-law cited by them.
6. Learned counsel for the appellant vehemently urged that the respondent being the landlady should have appeared in person for filing affidavit-in-evidence instead of giving power of attorney to her husband. He also questioned the validity of the power of attorney which has come on record.
It is, also the case of the appellant that application under section 16(1) of Sindh Rented Premises Ordinance,1979 was submitted by the respondent for passing the tentative rent order but no order at all was passed which shows that the respondent had not pressed for default seriously. Lastly he submitted that documentary evidence should be given preference over the oral testimony of the respondent's attorney. He also referred to the photostat copies of the money orders coupons which are available on record alongwith the written statement, but not with the affidavit-in-evidence of the appellant. According to the learned counsel their non-production in evidence is not fatal and the same could be looked into by the Court, in the interest of justice. In support of his above submissions, he relied upon M/s. Eagle Star Insurance Co. Ltd. v. M/s. Usman Sons Ltd. And other PLD 1969 Karachi 123, Gul Taj Begum v. Lal Hussain and another PLD 1980 SC (AJ&K) 60, Muhammad Masood Bhatti v. Moinuddin Khan, 1998 CLC 703, M/s. John Traders and 3 others v. Ahmed Ali, 1986 CLC 561, Moizur Rehman v. Mrs. Fakhra Javed, PLD 1991 Karachi 452 and Haji Rehmatullah v. Mst.
Munawar Jehan, 1995 CLC 1117.
7. Learned counsel for the respondent submitted that keeping in view the ingredients of section 10(3) of Sindh Rented Premises Ordinance, 1979 there is nothing on record to show that the respondent No,1 ever refused to accept the rent. Hence the question of depositing the rent in Court in miscellaneous rent application does not arise. Even otherwise, according to law, the rent should have been deposited properly within the jurisdiction of the learned Rent Controller where the property is situate. Thus, instead of depositing the rent in District East, it was deposited in District Central. Regarding power of attorney he submitted that the power of attorney which has come on record is in respect of the entire building and it was not necessary that the demised premises should have been specifically be mentioned. Moreover, in the counter-affidavit which has been filed in reply to the injunction application in this Court, the respondent has reiterated all the material facts. In support of his above submissions he relied upon Sohail Ahmed v. Dr. Nisar Ahmad, 1989 CLC 1040, Muhammad Suleman v. M/s. Alvi Brothers, 1991 CLC 1068, Tajammal Hussain Shah v.
Mst. Taj Aslam, 1989 CLC 662, Kala Khan through Legal Heirs v. Anjuman Musalmanane Mashraqui Punjab, Karachi 1993 CLC 250, Feroz Ahmad v. Mst. Zehra Khatoon, 1992 CLC 735, Haji Abdul Ghaffar v. Abdul Rasool, 1986 CLC 869, Dr. S. Hussain v Mrs. Masiha Begum, 1992 CLC 1292, Lithocraft Corporation v. A. Habib through Legal Heirs 1988 CLC 272 and Muhammad Masood Bhatti v.
Moinuddin Khan, 1988 CLC 703.
8. On careful examination of the record, I find no force in the submissions of the learned counsel for the appellant and the case-law cited by him is of no help to him. It was not at all necessary that the respondent herself should have appeared in Court as witness because recording of evidence by affidavit being declaration on facts made in writing and sworn on oath is permissible. Therefore, in "the absence of any legal bar respondent's attorney was competent witness in view of the power of attorney given by her. The objection raised by the learned counsel for the appellant regarding power of attorney is afterthought. After reading the evidence he very frankly conceded that no objection at all was raised when the attorney was being cross-examined. On the contrary in cross- examination the attorney specifically stated that the power of attorney was given to him and that is in respect of the entire building.
' Now coming to the alleged default nowhere it has come in the evidence that the respondent refused to accept the rent, under section 10 of the Sindh Rented Premises Ordinance, 1979, three modes of tendering rent by tenant to landlord are provided. The appellant was supposed to follow the same in letter and spirit. As was rightly submitted by the learned counsel for the respondent there is nothing on record to show that the respondent refused to accept the rent. Therefore, the question of adoption of second mode i.e. Tendering rent through money order was ill-advice.
Notwithstanding this aspect even the money order coupons were not produced in evidence to show that the rent was tendered through money order. Learned counsel for the appellant submitted that the original money order coupons are available with him and this Court may look into the pohoto copies as valid piece of evidence against the oral statement of the respondent. The submission is misconceived. It is settled law that the primary and best evidence should be produced. Production of photostat copy and that too alongwith the written statement has no evidentiary value at all and deserve to be kept out of consideration. Likewise, the application under section 16(1) of Sindh Rented Premises Ordinance, 1979 submitted by the respondent shall be deemed to have been disposed of as not pressed. After disposal of ejectment application the appellant cannot take advantage of miscellaneous application which had become infructuous.
Viewed from any angle in my humble view this appeal having no merits is dismissed. The impugned order requires no interference. The appellant is directed to hand over vacant possession of the demised premises to the respondent within 60(sixty) days subject to payment of rent.