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First Rent Appeal No. 778 of 1982, decided on 22nd February, 1986.

‑‑‑Ss. 15 & 21‑‑Default in payment of rent‑‑Where rent was offered by tenant to landlord's Rent Collector and same was not accepted by him, no default, held, occurred.

‑‑‑S. 15‑‑Default in payment of rent‑‑Rent offered by tenant but not accepted by Rent Collector of landlord‑‑Case of wilful default not proved against tenant‑‑Rent Controller, held, was justified in exercising his discretion in favour of tenant in not ordering his ejectment.

Abdur Rashid v . Saleh Muhammad 1980 S C M R 506; Waris Ali Tirmiai v. Mst. Liaquat Begum 1980 S C M R 601 and Alima Ahmad v. Amir.Ali P L D 1984 S C 32 ref.

‑‑‑S. 15‑‑Ejectment‑‑Discretion vesting in Rent Controller not to order ejectment of tenant, held, to be exercised on basis of sound judicial principles and not in arbitrary fashion.

Ghulam Abbas Adam Ali Jiwa v. N. Hasan Ali & Co. P L D 1984 Kar. 373 and Muhammad Usman v. Yousuf Ali M. Bhai 1986 C L C 380 ref.

A.M. Hashmi for Appellant.

M.G. Dastgir for Respondent.

Date of hearing: 17th February, 1986.

This is an appeal filed by the landlord. The premises in appeal are a godown situated in Ghulam Hussain Quarters, Karachi. The respondent has been a tenant in the premises since 1966. Ejectment application was filed by the appellant /landlord on 1‑11‑1972 on the ground of default in payment of rent since 1‑7‑1972. The eject ment application was resisted on the grounds of merit by the respondent pleading that there was no default. A preliminary objection was also taken that the relationship of landlord and tenant did not exist between the parties and that the landlord of respondent are Messrs Essaji Ebrahimji & Co. It was found that the relationship of landlord and tenant existed between the parties. There is no dispute on this score according to the two learned counsel, who appeared before me. In fact Messrs Essaji Ebrahimji & Co. were the Rent Collector of the appellant and they were collecting the rent on behalf of the appellants. The evidence was led before the Rent Controller and by the impugned order dated 30‑5‑1982,the Rent Controller dismissed the ejectment application. Being aggrieved, the present rent appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 by the appellants. I have heard Mr. A.M. Hashmi, learned counsel for the appellants and Mr. M.G. Dastgir, learned counsel for the respondent.

2. As observed earlier, the ejectment application was filed on 1‑11‑1972 and the ground was that rent had not been paid since 1‑7‑1972. This rent had not been paid and the defence of the respondent was that the rent had been paid regularly to Messrs Essaji Ebrahimji & Co., but since July, 1972 they avoided to accept the rent for some ulterior motives and although a request was made in writing on 15‑9‑1972 by the respondent to Messrs Essaji Ebrahimji & Co. to accept the rent, they did not accept the rent and eventually on 15‑11‑1972 a cheque was sent on account of the rent for the period from 1‑7‑1972 to December, 1972 and a money order was also sent on 18‑11‑1972 but both were refused, and thereafter they started depositing rent in the miscellaneous rent case. In the circumstances of this case, it was argued by Mr. A.M. Hashmi, learned counsel for the appellants that this was a case of wilful default and discretion ought not to have been exercised in favour of the respondent by the Rent Controller. On the other hand, according to Mr. M.G. Dastgir, learned counsel for respondent it is an admitted position that on 15‑9‑1972 a letter was written by the respondent to the appellants and which was received by Messrs Essaji Ebrahimji & Co., the Rent Collector of the appellants. The said letter (Exh. 6L.) reads as follows:‑

"Dear Sir, we have not received you usual bills for the collection of rent. Please send the same so that the payment may be made.

Thanking you,

Yours faithfully"

It is not denied by Mr. A.M.Hashmi that this letter dated 15‑9‑1972 was received. In fact reference may be made to the cross‑examination of Mansoor Ali, one of the appellants, where he has stated as follows:‑

"The opponent sent a letter to Essaji Ebrahimji & Co. to send the bill so that payment be made and offered the rent to them."

The sending of the aforesaid letter, dated 15‑9‑1972, is, therefore, admitted and the further admission of appellants is that the respondent had offered to make payment of the rent to the appellants' Rent Collectors. It follows that although the rent had been offered but the rent had not been accepted. If the rent was offered by the respondent in September, 1972, it would at lease be for July and August. Perhaps for September also. If that is so, there would be no default for the months of July and August, 1972. According to the respondent, the practice was that the appellants' Rent Collectors would sent the bill

Y1 and on receipt of bill, which would be for several months, the respondent would pay the rent and as no bill had been received during this period, in spite of the letter dated 15‑9‑1972 and in spite of the fact that rent had been offered in September, 1972, rent was not accepted and, therefore. rent could not be paid. It was argued key Mr. A.M. Hashmi that no rent bills were issued and learned counsel is correct, as on examination of the so‑called rent bills it is found that these are actually letters written by the appellants to the respondent that the rent had not been paid for a certain period and asking for payment.

However, the discretion has been exercised by the Rent Controller in favour of the respondent. According to the learned counsel for the appellants, this discretion has not been exercised on sound judicial principles and the ejectment application should have been allowed on the ground of default. I have already referred to the admission made by one of the appellants, who had appeared as a witness before the Rent Controller in support of the case of the appellants to the effect that a letter had been received on 15‑9‑1972 from the respondent /tenant asking for the "usual bill for the collection of the rent" and that the respondent had also offered the rent in September, 1972. If the rent had been offered and if it has not been paid, the inference in the circumstances would be that the appellants' rent‑collectors did not accept A the rent. If admittedly rent was offered in September, 1972 as observed earlier, there would be no default in so far as the rents of July and August are concerned. When the ejectment application was filed on 1‑11‑1972, ejectment could only be ordered if rent of July and August had not been paid as regards the rent of September, 1972, 60 days had not expired when the ejectment was filed. Learned counsel for the appellants had cited the following three judgments of the Supreme Court: ‑

Abdur Rashid v. Saleh Muhammad 1980 S C M R 506; Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 S C M R 601 and Alima Ahmad v. Amir Ali P L D 1984 S C 32.

These three authorities of the Supreme Court do not support the case of the appellants, as in the present case there is an admission about the receipt of the letter dated 15‑9‑1972 of the respondent asking for the "usual bill for collection of rent" and the admission of the appellants that rent had been tendered in September, 1972 by the respondent and which apparently was not accepted by the rent‑collectors of the appellants.

Mr. M.G. Dastgir, learned counsel for the respondent, had referred to two authorities namely Ghulam Abbas Adam Ali Jiwa v. N.Hasan Ali & Co. P L D 1984 Kar. 373 decided by me and the judgment in the case of Muhammad Usman v. Yousuf Ali M. Bhai 1986 C L C 380 decided by a learned Single Judge of this Court. These authorities lay down that on account of the landlord proving no payment B of rent the ejectment of the tenant is not to follow as a matter of course but discretion vests in the Rent Controller not to order ejectment but such discretion has to be exercised on the basis of sound judicial principles and it cannot be exercised in arbitrary fashion. In my view, no case has been made out in the present rent appeal for setting aside the order of the Rent Controller exercising discretion in favour of the tenant. The case of wilful had not been established and the Rent Controller was justified in not ordering the ejectment of the respondent.

As a result, First Rent Appeal No. 778 of 1982 is dismissed but with no order as to costs.

M.Y.H. Appeal dismissed

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