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First Rent Appeal No.244 of 1985, decided on 1st January, 1987.

---Ss.10(3), 15 & 21--Default in payment of rent--Deposit of rent under S.10(3) of the Ordinance, held, could save tenant from consequences, of default as contemplated by S.15 of the Ordinance if same was deposited within period allowed by law.

---Ss.7, 15 & 21--Rent--Payment of excessive rent--Adjustment--When excess rent was paid by tenant to landlord, tenant, held, was entitled to recover or adjust it against payment of future rent.

---Ss.15 & 21--Default in payment of rent--Tenant paying more rent than mutually agreed upon and thus entitled to adjustment which if counted not rendering him defaulter--Order of Rent Controller allowing eviction on ground of default set aside in circumstances.

Nisar Ali for Appellant.

Ismail Merchant for Respondent.

Date of hearing: 24th September, 1986.

The appellant is the tenant, the respondent is the landlord.

The respondent made an application on 24-9-1981 under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred toras the Ordinance) before the 1st Senior Civil Judge/Rent' Controller, Karachi for eviction of the tenant /appellant from outhouse room situated on plot No.GRW-409/1, Garden West, Karachi, on the ground that the appellant had failed to pay rent for the period from September 1, 1978 to August 31, 1981. According to the respondent's application the appellant was to pay Rs.10/- per month as rent.

In his written statement, the appellant pleaded that the landlord respondent had brought one eviction application No.4181/78. The present application was not maintainable because the appellant was not in arrears; that he had tendered the rent but respondent had refuses to accept rent from him directly and, therefore, the appellant had started depositing rent in Misc. Rent Case No.3189/80 and had deposited therein for the period from May 1, 1978 to April 30, 1982 without prejudice to his rights. He further pleaded that excess amount was recovered by the respondent from him at the rate of Rs.2/- per month.

The Controller had framed the following two issues:----

(1) Whether the opponent is wilful defaulter in the payment of rent

(2) What should the order be

The Rent 'Controller held that the appellant had committed default in payment of rent and allowed the eviction application. Aggrieved by the order of the Controller, the tenant has preferred "'is first Rent Appeal.

Mr . Nisar Ali, the learned counsel for the appellant has sought to make out these points,

(1) Deposit of rent due with the Nazir of the Civil Court after seeking permission is a valid tender within the meaning of section 15(2)(ii) of the Ordinance.

(2) Adjustment of excess amount received by the landlord.

As against this, Mr. Ismail Merchant, the learned counsel for the respondent submits that the deposit of rent after due date is not valid tender within the meaning of section 15(2)(11) of the Ordinance, Mr. Merchant further submits that the agreed rent is Rs.10/- per month. In the alternative it is submitted that the excess amount of Rs.2/- per month if adjusted even then the appellant had failed to pay rent. Mr. Merchant submits that the order of the Rent Controller is in accord with the evidence on the record.

I have perused the Misc. Application No.3189/80. The order dated 26-5-1980 made by the Rent Controller on the application of the tenant whereby he had sought permission to deposit the rent for the months May, 1978 to May 1980 shows that the tenant could make the deposit at his own risk. This application was made on 25-5-1980.

Clause (ii) of subsection (2) of section 15 comprises of two parts. The first part stipulates that where a time is fixed in the agreement of tenancy for the payment of rent, in such case the term "pay rent" means the rent payable according to the terms of the tenancy agreement and if it is not paid within 15 days after the expiry of the time fixed in the agreement, then the tenant becomes liable to eviction. The second part of the Clause deals with a situation where there is no agreement between the parties as to the date or time by which the rent is to be paid and in such a case the law allows the tenant a period of sixty days from the period for which the rent is payable.

Section 10(3) of the Ordinance merely names two of the modes of payment of rent. If rent is sent through money order or by deposit with the Rent Controller that would be an absolute proof of such payment. In case of refusal to accept rent by the landlord, the tenant is bound in law to send the rent through money-order or deposit the rent with the Controller after seeking permission of the Rent Controller but it may be sent or deposited when it is payable. The tenant had made deposits with the Nazir of 1st Rent Controller. The tenant claimed that this was a valid tender of rent to the. landlord. The deposit of rent was not only of the rent due but also of future rent. I am of the opinion that the deposit under section 10(3) of the Ordinance can save the tenant from the consequence of the default as contemplated by section 15 of the Rent Ordinance if the same is deposited within the period allowed by the law.

I now deal with the other contention of the appellant that has been canvassed by the appellant. His contention is that the tenant had paid excess rent.

Section 15(2)(ii) of the Ordinance provides for eviction of the tenant if he has failed to pay rent within fifteen days after the expiry of the period fixed in the agreement of tenancy for payment of rent or in the absence of such agreement within sixty days after the rent has become due for payment. Section 7 provides that no landlord shall charge or receive rent at the rate higher than mutually agreed upon by the parties and if the fair rent has been fixed by the Controller, at the rate higher than the fixed rent. Fair rent is defined in the Ordinance which means the fair rent of any premises determined by the Controller.

Having regard to the provisions of the Ordinance, I must hold that when the excess rent was paid by the tenant to the landlord, the tenant is entitled to recover or adjust it against the payment of future rent. In the present case having regard to the provisions of the Ordinance, it cannot be stated that the landlord was not entitled to receive the agreed rate of rent, at the time when it was paid to him or that when it was paid, it did not rightly fully belong to him, he became liable to refund a part of it under the Statute.

I hold that the appellant is entitled to adjustment of the excess payment. The respondent is entitled to receive the rent at the rate of fts.8/. It is an admitted position that the appellant was depositing at the rate of Rs.101- per month from 1-5-1976.

The respondent had claimed rent from 1-9-1978. The appellant had deposited rent for the period commencing from 1-5-1978. The appellant is entitled to adjustment of Rs.32/- and Rs.114/- towards excess payment at the rate of Rs.2/- for 57 months. The rent from 1-9-1978 up to 31-5-1980 comes to Rs.144/-. The rent for -the month of March, 1980 was payable within sixty days, that is, on or before 1-6-1980. The appellant had deposited Rs.320/- on 28-5-1980. In this view of the matter it seems that the appellant had not committed-.any default.

For the reasons stated above, the appeal is allowed, the order of the Controller is set aside. The eviction application filed by the respondent stands dismissed. In the peculiar circumstances of the case the parties will briar their own costs.

M.Y.H./A-107/K Appeal allowed.

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