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Civil Petition for Leave to Appeal No. 254‑K of 1984, decided on 5th November, 1985.
(On appeal from the judgment of the High Court of Sind, Karachi dated 15‑3‑1984, it. IInd Appeal No. 388 of 1980).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑‑Second appeal‑‑Re‑assessment of evidence afresh‑‑Question of fact closed by conclusive finding recorded by First Appellate Court‑‑Leave granted to consider inter alia whether High Court was justified to go into question of fact in second appeal which was closed by conclusive finding recorded by First Appellate Court, much less upon a fresh re‑assessment of evidence.
Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 5th December, 1985.
The petitioner‑company was ordered to be evicted from the demised premises in their occupation on the ground of default in the payment of rent. The admitted facts of the case are that, the petitioner was the tenant of the previous landlord but the property comprising the disputed premises was purchased b5 the respondent by means of sale‑deed, dated 10th February, 1976, arid she served a notice upon the petitioner on 24th May. 1976, calling upon it to pay the rent to her. As according to the respondent, the petitioner failed to pay the rent, she brought an ejectment application in July, 1976, on the ground of default in the payment of rent.
2. The plea of the petitioner in its defence was that after receiving notice of intimation that respondent had purchased the premises, and verifying the facts from the previous landlord, rent for four months was sent to the respondent on 9th June, 1976, by means of cheque which was accepted by her. However, according to the learned counsel the respondent deliberately avoided to cash the cheque and brought the ejectment application.
3. The Rent Controller was not satisfied with the plea of the petitioner in its defence who passed an order of ejectment against it, mainly on the ground that the petitioner had failed to tender rent to the previous landlord until the time he received the notice from the respondent.
4. Learned Additional District Judge, Karachi, on re‑assessment of the evidence accepted the plea of the petitioner and reversed the finding of the learned Rent Controller. He, therefore, allowed the appeal and set aside the order of ejectment passed against the petitioner. In accepting the defence of the petitioner the learned Judge held that respondent had in her evidence not disputed the fact affirmatively that the cheque for four months rent sent by the petitioner was received by her.
5. Being aggrieved by the judgment of the learned Additional District Judge, respondent went up in second appeal which was accepted by the judgment impugned in this petition by a learned Judge of the Sind High Court. Hence this petition.
6. Mr. Fakhruddin G. Ebrahim learned counsel appearing in. support of the petition submitted that in her initial notice intimating the transfer of ownership in her favour, the respondent had called upon the petitioner to pay the rent to her at the address of Messrs Antria Tools and Hardware Mart, Ismail Building, Altaf Hussain Road, Karachi‑2. In accordance with this letter the rent by cheque was dispatched to the address shown and was received by someone present at the address and the signature of the recipient was obtained on the covering letter Learned counsel contended that in the context of these circumstances, the witness of the petitioner could not explain but only expressed his lack of knowledge as to who signed the letter in token of receipt. The cheque. It was further argued that the attorney of the respondent who appeared in support of her case was confronted with the signature but he declined to identify it saying that he was not conversant with the signature of the respondent. In view of these circumstances appearing in the evidence, learned counsel forcefully contended that the learned Judge in the High Court was not justified to go into a question of fact in second appeal, which was closed by a conclusive finding recorded by the first appellate Court, much less upon a fresh reassessment of evidence.
7.We feel that the contentions advanced raise important questions of law which require consideration. Leave is accordingly granted Security Rs.2,000. Stay already granted to continue.
M.I. Leave granted.
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