2010 MLD 222 KARACHI-HIGH-COURT-SINDH

Full text

MUHAMMAD ASLAM PERVAIZ VS AL-MUSTAFA WELFARE SOCIETY 1981 SCMR 179, 1983 SCMR 1205, 2001 SCMR 1888, PLD 1993 Karachi 642, Constitution of Pakistan 1973--199 , Constitutional petition--TERM , Ejectment of Tenant--TERM , General Clauses Act 1897--27 , Proof--TERM , Sindh Rented Premises Ordinance 1979--15 , Sindh Rented Premises Ordinance 1979--18 , Ss. 15(2)(ii) & 18---General Clauses Act (X of 1897), S.27---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment of tenant---Default in payment of monthly rent---Change of ownership---Issuance of notice--Proof---Postal receipts---Ejectment application filed by landlord was allowed by Rent Controller on the ground that notice of change of ownership was received by tenant and he committed default in payment of rent---Lower Appellate Court reversed both the findings of Rent Controller and allowed appeal filed by tenant---Validity---Landlord contended that he sent notice under S.18 of Sindh Rented Premises Ordinance, 1979, and onus of proof was on the landlord---Fact that other tenants received notices did not mean that tenant also received the notice---Landlord failed to establish that notice was sent to tenant much less received by him---If landlord could have produced postal receipt then S.27 of General Clauses Act, 1897, would have kicked in and come to his aid and raise presumption in favour of due service---Landlord failed to prove that notice under S.18 of Sindh Rented Premises Ordinance, 1979, was served on the tenant,. however, such determination was not fatal to the case of landlord---Default under S.15 (2)(ii) of Sindh Rented Premises Ordinance, 1979, rendering tenants liable to ejectment occurred if rent was not paid for 60 days after it had become due---Rent for the month of May became due on 10th June and period of 60 days expired on 8th August, therefore, on the day money order claimed to have been sent by tenant i.e. on 25-8-2000, default had occurred and sending of money order could not cure act of default---Tenant claimed that in the month of July he sent to previous owner and met him and offered payment of rent and previous owner parried of one pretext or the other and such previous owner was not produced in evidence---Tenant claimed to have sent rent through money order on 25-8-2000, after he had come to know that the property was sold but he neither disclosed in affidavit-in-¬evidence nor in written statement as to how he came to know, when every other tenant had come to know but he did not---When previous owner refused to receive the rent, there was nothing to prevent tenant from sending rent before commencement of statutory default to previous owner through money order but he did not do it---Tenant had committed default and was liable to eviction---Petition was allowed accordingly.