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First Rent Appeal No. 490 of 1985, decided on 4th September, 1986.

‑‑‑S. 15(2)‑‑Default in payment of rent‑‑Tenant once failed to pay rent within specified time any payment made subsequently to landlord, held, would not entitle him to get application for eviction dismissed on ground that rent had been paid.

‑‑‑Ss. 15 & 21‑‑Ejectment‑‑Default in payment of rent‑‑Tenant failing to pay rent due within specified period and default against tenant established‑‑Order of ejectment maintained.

G . M . Saleem for Appellant.

A. Aziz Khan for Respondent.

Date of hearing: 4th September, 1986.

This first rent appeal is directed against the order dated 29‑7‑1985, passed by the IVth Senior Civil Judge/Rent Controller, Karachi (West), whereby the eviction application filed by the respondent was allowed and directed the appellant to hand over the vacant possession of the premises in question to the respondent within sixty days from the date of this order.

The facts to the filing of the appeal are that the respondent is owner and landlord of House No. B‑383, Block No. 10, Federal 'B' Area, Karachi and the ground floor whereof was let out to the appellant under a lease deed dated 14‑9‑1981 at monthly rental of Rs.1,500 for a period of one year, six months and seven days, that is, from 14th September, 1981 to 31st March, 1983. It is the case of the respondent that according to clause 6 (iv) of the said lease the appellant was required to deliver peaceful and vacant possession of the premises in question immediately after expiry of the said lease‑deed. The respondent filed eviction Application No. 1823 on the ground that the tenancy ceased to be valid under section 6 of the Sind Rented Premises Ordinance, 1979 and also on the ground of default in payment of rent for the months of February, 1983, on or before the 5th March, 1983 and also on the grounds materially impaired the value and utility of the premises in question and nuisance. The appellant resisted the eviction application.

The respondent filed affidavit‑in‑evidence of the duly constituted attorney, Dr. Aqeel Ahmed. The appellant filed his own affidavit‑in- evidence in rebuttal. They were cross‑examined by the learned counsel for the respective parties.

The learned Rent Controller allowed the eviction application on the grounds of tenancy ceased to be valid and default against the appellant and the other two grounds in the negative vide order dated 29‑7‑1985.

The appellant being aggrieved against the order dated 29‑7‑1985 of the IVth Senior Civil Judge/Rent Controller, Karachi, has preferred this first rent appeal, on the grounds disclosed in the memo of appeal.

Mr. G.M. Saleem the learned counsel for the appellant has raised the contentions:‑

(1) The learned Controller has failed to take into consideration that the section 6 of the Sind Rented Premises Ordinance was deleted by Ordinance as such it had no application to the facts of the case.

(2) The learned Controller has materially erred in holding that the appellant was a defaulter. The order is against the law and fact on record.

On the other hand Mr.Abdul Aziz Khan, the learned counsel for the respondent, has submitted that the respondent does not press the eviction on this ground. The learned counsel has submitted that the appellant had committed default and the finding of the learned Controller is in accord with the evidence on record.

The premises in question was let to the appellant under a lease deed dated 14‑9‑1981 for residential use at a monthly rental of Rs.1,500 payable by 5th day of succeeding calendar month. It is also an admitted position that the rent for the month of February, 1983 was payable by 5th March, 1983 which amount was not paid on the due date. The appellant sent a cheque bearing No. CDH 658430 dated 19‑3‑1983 through letter dated 19‑3‑1983. It is an admitted position that this letter was despatched on 3‑4‑1983 instead of despatching on 19‑3‑1983 vide Registration No.73 dated 3‑4‑1983. Clause (ii) of subsection (2) of section 15 contemplates that the tenant has failed to pay rent in respect of the premises in his occupation within fifteen days after the expiry of the period by mutual agreement between the tenant and landlord for the payment of the rent. These fifteen days were allowed from the period the rent is payable. The rent for February 1983 in the instant case was payable by 5th of March, 1983 and it should have been paid within fifteen days that is by 20‑3‑1983 but it was not done. The non‑payment of rent for the month of February, on the due date or within fifteen days has been proved. The scheme of the Ordinance is that the tenant has to pay the rent regularly either within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days after the rent has become due for payment. In case the tenant fails to pay the rent as provided, he incurs the liability for eviction under the Ordinance. It is not disputed by the learned counsel for the appellant that if once the tenant fails to pay the rent within the specified time, any payment made subsequently to the landlord will not entitle him to get the application for eviction dismissed on the ground that this rent had been paid. Under this Ordinance, this is the only safeguard provided) for the benefit of the landlord, that is, regular payment of the rent has been secured by the provisions of the Ordinance. If a tenant fails to make the payment as provided under the Ordinance, he is liable to eviction, though he might pay arrears due from him subsequent to the specified date. The right to receive rent from the tenant is different from the right to secure ejectment order under the provisions of the Ordinance. If once the tenant fails to pay the rent in accordance with the provisions of clause (ii) of subsection (2) of section 15 of the Ordinance, any payment of the arrears made by him subsequently, will not entitle him to get the eviction application dismissed on the ground that the rent has been paid. It is not the payment of the arrears alone but to pay the same by the statutory date which is most material in order to save eviction under the Ordinance. It is the rent due from the tenant which is to be paid on the due date or specified period.

For the above reasons, the appeal fails and is hereby accordingly dismissed and the appellant is allowed to deliver vacant possession of the premises in question on or before 30‑6‑1987 provided the appellant continues to deposit rent regularly as ordered by the learned Rent Controller. I direct that the writ of possession without notice to the appellant will be issued after 30‑6‑1987 or even earlier in case the appellant fails to deposit rent.

M. Y . H Appeal dismissed

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