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First Rent Appeal No. 278 of 1982, decided on 11th August, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1979)--

---Ss.15(2)(ii) & 21(1)--West Pakistan Urban Rent Restriction Ordinance (V1 of 1959), S.13-A--Default--Payment of rent--Bona fide intention of tenant--Proof--Conduct of landlady--Tenant deposited rent due in Court on refusal of previous landlord to accept same--Existing landlady failed to withdraw such rent deposited in Court by tenant although she agreed to do so after receiving reply to notice served on tenant by landlady under S. 13-A of Ordinance, 1959--Conduct of tenant in depositing rent in Court, showed bona fide desire to pay rent--Landlady by agreeing to withdraw rent deposited in Court, held, absolved tenant from making same payment over and again.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

---Ss. 15(2)(ii) & 21(1)--West Pakistan Urban Rent Restriction Ordinance (VI of 1959j, S. 13-A--Payment of rent--Default of technical nature- Discretion of Court, exercise of--Tenant with bona fide intention deposited rent in Court--Landlady failed to withdraw same in spite of fact that she agreed to do so--Contention of landlady that tenant had committed default as after service of notice on tenant under S. 13-A of Ordinance, 1959, rent should have been payed to landlady which he failed to pay, repelled--Even if default was of technical nature, discretion of Court should be exercised in favour of tenant.

1973 S C M R 185 and 1985 S C M R 24 ref.

A.B. Omrani for Appellant.

Gharib Nawaz for Respondent.

Date of hearing; 11th August, 1985.

The dispute relates to a Godown which is situated in the building known as Sara Manzil, on Plot No. 56 Sheet No. GA-7, Machi Miani Market, Kha radar, Karachi. Property wss owned by Jeena Bhoy who had rented out the premises in dispute to the respondent on a monthly rent of Rs. 100. The appellant purchased this property on 12-12-1977 and served a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, dated 25th September 1978 claiming rent from December, 1977. The respondent replied this notice on 4-10-1978 stating that as after November, the previous landlord refused to accept the rent, it started depositing it in Court and rent up to April, 1983 has been deposited there. The appellant filed ejectment application on 20-1-1979 on grounds of default in payment of rent, The learned Controller by the impugned order dismissed the ejectment application, holding that no default has been committed.

Mr. Khuda Bakhsh Omrani, the learned counsel for the appellant contended that upon receipt of the notice on 31-10-1978 the respondent was duty bound to pay the rent from December, 1977 onwards as contemplated by section 13-A of West Pakistan Urban Rent Restriction Ordinance and since he has not paid the rent within the period required under law, he has committed default and is liable to be ejected. The facts in this case are not much disputed. The material facts seen to be that the property was purchased in December, 1977, but tall 3-10-1978 no notice under section 134 was served by the appellant. There is nothing on record to show that the respondent had gained knowledge of transfer of the property, or that landlord had informed him about it, therefore, when the previous landlord refused to accept the rent, it thought it fit to deposit the rent in Court, and on the date when notice was served, it had already deposited advance rent up to April, 1979. These facts show that the respondent bona fide desired to pay the rent, and not to keep it in arrears. The conduct of .the respondent in depositing the rent seems to be above board and with good intention. Mr. Omrani the learned counsel contended that on receipt of the notice the rent should have been paid to the appellant. On the other hand the respondent has led evidence to show that after the notice was replied on 4-10-1978, the appellant agreed to withdraw the rent from the Court. This part of statement of the respondent has not been challenged in cross-examination. When it came to know about the fact that the appellant had not withdrawn the rent, on 21-1-1979, he sent a money order 16r Rs.500 in which it was clearly stated that without prejudice to its right it may be adjusted if there is any arrear. This money order was sent even before the notice of ejectment application was served upon it. After that the respondent started depositing rent in Court in the name of the appellant. In these facts it is difficult to hold that the respondent had committed default in payment of rent. The appellant had delayed the intimation of the transfer of tile property for about a year and thereafter as she had agreed to withdraw the rent deposited in Court, representing the entire arrears, the respondent was justified in not remitting the rent as required by the notice dated 3-10-1978. The conduct of the appellant in agreeing to withdraw the rent deposited in Court representing the arrears absolve the respondent from making the same payment over and again.

The learned counsel for the appellant alternatively contended that even if the deposit of rent up to September, 1978 is accepted as due payment the fact remains that after service of notice on 3-10-1978 the respondent should have paid the rent to the appellant which he, failed to pay, although, he was aware that the appellant is the landlady and thus defaulted in payment of rent for the month of October, 1978 which was deposited on 21-1-1979. The learned counsel seems to press this objection under section 13 of the West Pakistan Urban Rent Restriction Ordinance, where a tenant shall be deemed to have defaulted, if he fails to pay the rent within 60 days from the date when the rent became due. In this case, there is no agreement fixing any date for payment of rent. The facts show that the rent of that period had already been deposited in Court and attempt has been made by the respondent to pay it again by money order. If the appellant as agreed by her would have withdrawn the rent she would have received rent upto April, 1979, and there would have been no question of any default committed by the respondent. In these circumstances non-payment of the rent for the month of October directly to the appellant will not make the respondent a defaulter. In such circumstances, even if it is treated to be a default of technical nature the discretion should be exercised in favour of the tenant.

Mr. Omrani the learned counsel relied on 1973 S C M R 185 in which the principle of applicability of section 13-A has been stated while in 1985 S C M R 24 it has been held that service of ejectment application which mentions the factum of transfer is a sufficient notice and no notice under section 13-A is required. Both the authorities are of no assistance to the appellant. The appeal is, therefore, dismissed.

H.B.T.

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