MUKHTAR BROTHER Versus HAWA BAI ADMANI

This appeal was heard on 13‑5‑1991 and after conclusion of hearing it was adjourned to 21‑5‑1991 because learned counsel of the appellants wanted to place on record rent receipts in respect of rent paid by the appellants to Settlement Department. However, when the appeal came before the Court on 21‑5‑1991, learned counsel of the appellant expressed his inability to file any such rent receipt but he informed the Court that some compromise talks were going on between the parties and requested the Court that the judgment might not be announced and on this representation of learned counsel the hearing was adjourned first to 20‑6‑1991 and then on 11‑8‑1991. It may, however, be added that learned counsel of the appellants was apparently not well conversant with the facts of the case when he told the Court on 13‑5‑1991 that the appellants wanted to file rent receipts in respect of rent paid by the appellants to Settlement‑Department since R.W. 1 Aslam Baig (one of the partners of the appellants) had clearly stated in his cross‑examination that "neither I paid rent to Haroon Admani nor to Settlement". On this last date Mr. Muhammad Saleem Advocate appeared for the learned counsel of the appellants, did no say anything about the fate of compromise talks between the parties but sought adjournment on the ground that learned counsel of the appellants was busy before another Bench of this Court. Consequently, The appeal was adjourned for today and it is evident from the order of 11‑8‑1991 that the case was adjourned for today either for recording the compromise or for announcement of judgment. Now, when the case was called up today, the Reader of the Court informed that the learned counsel of the parties had earlier contacted him and told him that compromise talks were still going on and, therefore, the appeal might be adjourned to 8‑9‑1991 and after so informing him, they went away. It was highly undesirable on the part of learned counsel of the parties to have so gone away without appearing before the Court. I am not inclined to further adjourn the announcement of judgment since the parties have already taken enough time for this purpose and especially because the request of adjournment was not made in a proper manner.

2. The facts of the case are that the premises in dispute are part of an evacuee building which was transferred by the Settlement Department to various claimants. The premises in dispute was transferred to deceased Haroon Admani who has since expired and is succeeded by the present respondents. PTO was issued in favour of deceased Haroon Admani on 9‑7‑1968 and PTD was issued in his favour on 9‑6‑1969 (it is wrongly stated in the ejectment application that the PTD was issued on 4‑9‑1969). Deceased Haroon Admani, however, served the appellants with notice under section 18 of the Ordinance on 21‑11‑1982, notice under section 30 of the Displaced Persons, (Compensation and Rehabilitation) Act, 1958 having become redundant because of the repeal of the said Act. This notice dated 21‑11‑1982 was sent by registered post but was refused by the appellants and was returned by the postal authorities. Deceased Haroon Admani then instituted ejectment application against the appellants on 29‑4‑1984 on two grounds, namely, on the ground of default in the payment of rent and on the ground of personal requirements. In the written‑statement appellants denied that they had received notice of 21‑11‑1982 and alleged that no such notice was sent by the deceased. The appellants also denied that the premises in their possession were transferred to the deceased and they further claimed that they were in possession of the premises as owners in their' own rights. On these pleadings necessary issues were framed by the learned Rent Controller and they were decided in favour of the respondents and an order of eviction was passed against the appellants on 19‑12‑1988 which is now impugned in this appeal.

3. Exh. A‑1 is the copy of PTD which proves the transfer of the demised premises in the name of deceased Haroon Admani. This is also evident from the extract of the property register which clearly mentioned that "premises No.G‑2 has been transferred to Haroon Admani son of Abdul Latif for Rs.1,440 vide FTO No. Karachi/13569:" The appellants could not controvert this evidence and, as such, the learned Rent Controller rightly held that the demised premises was transferred by the Settlement Department to deceased Haroon Admani and since the appellants are admittedly in possession of this premises, statutory relationship of landlord and tenant did exist between the parties.

4. The appellants had denied the service of notice. However, the respondents have produced in evidence postal receipt and the postal envelope, which was returned to him with the endorsement "refused" under the date of 28‑11‑1982, as ExhA‑6. Copy of the notice was separately tendered in evidence as ExhA‑5. The registered envelope was not opened by the learned Rent Controller and was exhibited in the closed form; however, I have opened it and have taken out the original notice and have marked it as ExhA/6/2. The A.D. slip which is lying attached with the envelope and which was not exhibited by the learned Rent Controller is also marked as Exh.A/6/1. Postal receipt shows that the registered notice was sent on 24‑11‑1982 and the endorsement of refusal shows that the appellants had refused to receive it on 28‑11‑1982. I am satisfied that the endorsement of refusal, appended to the registered envelope, is genuine and carries presumption of truth under section 114 of Evidence Act. The appellants could bring nothing on record to rebut this presumption. Service of notice under section 18 of the Ordinance is thus sufficiently proved by the respondents and I agree with the learned Rent Controller on this point as well.

5. The appellants had examined one of their partners, Aslam Baig as R.W.1. He could not substantiate his claim that the appellants were in possession of the disputed premises in their own rights since 1958. The appellants also examined R.W.2 Noor Ahmed Durrani but his evidence is totally irrelevant to the points under consideration. In his cross‑examination R.W.1 Aslam Baig admitted that he had neither paid any rent to Haroon Admani nor deposited the same in Court. Since it is proved that the demised premises was transferred to deceased Haroon Admani and that the latter had given notice under section 18 of the Ordinance to the appellants, the appellants were under obligation to tender the arrears of rent of the premises to deceased Haroon Admani from 9‑7‑1968 (which is the date on which PTO was issued in favour of deceased Haroon Admani) upto 21‑11‑1982 on which date notice under section 18 of the Ordinance had been served upon the appellants. The appellants were also required to pay future monthly rent regularly every month. Since they did not do so, they are liable to eviction on this ground. I agree with the learned Rent Controller in this regard.

6. The respondents had also sought eviction of the appellants on the ground that respondent Muhammad Tariq Admani required the premises for ‑his bona fide use and occupation to start his own business as the respondents did not own any other place of business within the same urban area. This E assertion of Muhammad Tariq Admani was not controverted by the appellants inasmuch as no question in this regard had been put to Muhammad Tariq in his cross‑examination. Under the circumstances, learned Rent Controller rightly concluded that the respondents had succeeded in proving their personal requirements.

7. Learned counsel for the appellants had claimed that service of notice had not been sufficiently proved. I have already held that it was sufficiently proved. Besides, on the basis of the judgment in the case of Major Muhammad Yousuf v. Mahrajuddin (1986 SCMR 751), institution of ejectment petition itself amounts to a notice under section 13‑A of the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 which is now equivalent to section 18 of the present Sindh Rented Premises Ordinance, 1979. Thus even if the notice dated 21‑11‑1982 is ignored, the filing of the ejectment petition on 29‑4‑1984 was by itself a good notice under section 18 of the Ordinance and the r appellants were bound to tender the arrears of rent within one month of this date and to pay future rent regularly every month. Admittedly the appellants did not do so.

8. On the basis of what has been stated above, I find no force in his appeal which is accordingly dismissed with costs. The appellants are directed to vacate the demised premises within one month.

AA./M‑1485/K Appeal dismissed.