FATIMA Versus ABDUL RAZZAK

1. MUHAMMAD AFZAL ZULLAH, J.‑‑ This appeal through leave of the Court is directed against judgment dated 22‑1‑1981 of the High Court of Sind, whereby the respondent's (tenant's) Second Rent Appeal against the striking off of his defence for non‑deposit of rent on time as directed, was allowed and the case was remanded for recording additional evidence on the preliminary issue of service of notice to the respondent under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958).

2. The appellant was transferred the property in dispute under the said law. The respondent being a statutory tenant in a part thereof was sought to be evicted, on ground of default in payment of rent after alleged service of notice under section 30 of the Act, through application filed in 1971. The respondent in his written statement, without denying that he was tenant and the appellant was the landlord, put the latter to the proof of service of notice under section 30; and as without service of such a notice the relationship of landlord and tenant was not supposed to have existed in law, accordingly a preliminary issue was framed in that behalf. The respondent, however, was directed to deposit the tentative arrears and current rent by an interim order.

3. The learned Rent Controller recorded evidence on the preliminary issue. The appellant in her deposition asserted that the notice was served on the respondent only by post with acknowledgement receipt which was produced in Court. It purported to have been signed by him. When in witness‑box the respondent denied the receipt of notice as also the signatures on the acknowledgement receipt.

4. It was held by the learned Controller that the evidence regarding service of notice in the deposition of the landlord and the postal record could not be rebutted by mere denial of the respondent. Accordingly the preliminary issue was decided against him. It was also found that he had failed to deposit the rent in accordance with the directions in the interim order for deposit. Therefore, his defence was struck off and he was ordered to be evicted. On his First Appeal it was held that the plea of denial of relationship of landlord and tenant as also the receipt of notice was vague and equivocal. The learned Judge compared the disputed signatures of the respondent on the postal Acknowledgement Receipt with his admitted signatures on his written statement in this case, found them similar despite insignificant variation and rejected respondent's denial. The First Appeal was accordingly dismissed.

5. In the Second Appeal a learned Single Judge of the High Court, however, relying on Gulzar Begum v. Satrah Bibi (1972 SC)1R 251) held that by denial of signatures and receipt of notice respondent had successfully rebutted the presumption of receipt of notice through postal record "' of the High Court. He had made. an application in Court on 20‑12‑1971 during the pendency of this case‑and it is part of his pleadings, wherein the relationship of the landlord and tenant is admitted (para. 1 thereof). Even the payment of due rent is asserted therein. The subsequent denial in the same proceedings is false and dishonest. Moreover, the denial in the written statement of the receipt of notice also is equivocal. In this background the mere denial of signatures was of no avail to him. With respect, we do not agree that the proof by comparison of signatures in Court by virtue of section 73 of Evidence Act, is not dependable. A finding of fact can be rendered on such a comparison. The law does not prohibit it. We also do not agree that any formal opportunity for disproving the similarity is to be afforded when proceedings take place in Court under section 73 of Evidence Act. There is no material on record to show that the comparison in this case was done in absence of the parties. That being so, there was no need for formal offer of opportunity to the respondent. If so advised, he could have requested the Appellate Court for further/ additional opportunity. But, for understandable reasons he did not do so. The comparison by the Appellate Court was not lacking in any essentials in this behalf. If the variation was explained away when giving finding of similarity, it was in no way prejudicial to the respondent. We accordingly agree with the learned subordinate Courts that the respondent had miserably failed to support the plea of denial raised by him. The case of Gulzar Begum (19‑42 SCMR 251) is, therefore, distinguishable.

6. In the light of the foregoing discussion this appeal is allowed with costs throughout. The impugned judgment is set aside. The orders of eviction of the respondent passed by the Controller, affirmed in First Appeal, are restored. The respondent is directed to be evicted forthwith, as after hearing his learned counsel on this point. We consider it a fit case for issuance of Writ of possession without) any further notice to him. He raised a false plea of denial, therefore, he is not entitled to any such notice now.

7. Order accordingly

8. M /F‑54/S Appeal accepted