Haji UMAR vs MUHAMMAD FAROOQ MOTAN S — 2022 CLC 1936 KARACHI-HIGH-COURT-SINDH

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Haji UMAR VS MUHAMMAD FAROOQ MOTAN S.10(3)---Eviction petition---Default in payment of rent----Refusal by landlord to accept rent---Burden to prove on tenant---Correct name of landlord not mentioned on money order---Petitioner (landlord) alleged that the rent for the period from January to December 2016 was deposited in Court by respondent (tenant) without first tendering the same directly to him and or without sending the same to him through a money order---Respondent's contention was that the rent for the relevant period tendered by him in January, 2016 was refused by the petitioner on two occasions---In cross-examination, petitioner had specifically denied that respondent had offered the rent to him in January, 2016 or had sent a money order to him---Burden to prove that petitioner had refused to receive the rent from respondent either directly or through money order shifted upon respondent ---Regarding the first alleged refusal by the petitioner, respondent had claimed in his affidavit-in-evidence/examination-in-chief that respondent along with a "companion" went to the petitioner in January 2016 to pay the rent, but the petitioner refused to accept the same---Said companion was never examined by respondent to prove his contention and there was no explanation by respondent for not examining his own companion who would have been an important witness to prove his claim----Regarding second refusal by the petitioner, refusal to accept respondent's money order, respondent relied upon a letter issued by Assistant Chief Post Master; it was stated that the payee/addressee "U.H.J" had refused to accept the amount of Rs.10,200 sent to him by respondent---Respondent produced only one part of money order (sender's copy)---Respondent did not produce the actual counterpart of the money order, or even its copy with the endorsement of the concerned postman that the petitioner had refused to accept the money order, nor did he examine the concerned postman and or the author of letter, Assistant Chief Post Master, to verify the contents of said document---Due to this, petitioner did not get opportunity to cross-examine the concerned postman and the Assistant Chief Post Master in order to rebut the respondent's claim---Respondent could not be deemed to have discharged the burden, which was squarely upon him to prove the tendering of rent through money order prior to depositing the same in the Court---Admittedly money order allegedly sent by respondent was in favour of "H.U.I"----As the correct name of the petitioner was admittedly not mentioned in the alleged money order, it could not be deemed or held by any stretch of imagination that the money order was meant for or sent to the petitioner, or that the petitioner had refused to accept the same---Respondent had failed in discharging the burden in order to prove the alleged second refusal by the petitioner.

Haji UMAR vs MUHAMMAD FAROOQ MOTAN S — 2022 CLC 1936 KARACHI-HIGH-COURT-SINDH

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