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First Rent Appeal No. 409 of 1985, decided on 2nd June, 1986.

‑‑‑Ss. 15(2)(ii) & 21‑‑Wiful default in payment of rent‑‑Proof‑‑Dishonour of cheque‑‑Effect‑‑Cheque issued by tenant for tendering rent of premises was dishonoured on presentation after about 20 days of its issuance‑‑Tenant's contention that cheque was not presented immediately was repelled by Appellate Court, holding that it was duty of tenant issuing cheque to maintain sufficient funds in his account to meet requirements‑‑Tendering rent for period about which default had already been committed by tenant through cheque which was dishonoured when presented, held, would amount to wilful and deliberate default.

‑‑‑S. 15(2)(ii)‑‑Default‑‑Proof‑‑Tendering of rent by tenant after commission of default, before service of notice of eviction application against him, held, was of little significance‑‑Such tendering of rent on part of tenant could not erase effect or consequences of default already committed by him.

HaR Fida Hussain v. Muhammad Haider Khan 1972 S C M R 262 ref.

‑‑Ss. 15 & 21‑‑No misreading of evidence by Rent Controller having been pointed out, order passed by Rent Controller, held, was in accord with law.

Manzar Ahmed for Appellant.

S.A. Majid for Respondent.

Date of hearing: 27th May, 1986.

This first rent appeal is directed against the order dated 16‑5‑1985 passed by the XIIth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to deliver the vacant possession of the premises in question to the respondent within sixty days from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is owner of Mehar Sons Estate on Plot No. R.Y‑16/1; Railway Quarter, Talpur Road, Karachi and the appellant is tenant in respect of Godown No. NB.11 at a monthly rental of Rs.900. The respondent had filed eviction application on the ground of default for the period commencing from 1‑12‑1980 upto the date of eviction application. It is the case of the respondent that the appellant tendered rent through Cheque No. CC2‑413141, dated 19‑2‑1981 which was dishonoured on presentation. The appellant filed written statement and stated therein that he had tendered rent vide Cheque No. CC.2‑413141, dated 19‑2‑1981 and subsequent thereto the rent for the months of February, March and April, 1981 was tendered vide Pay Order No. D.222361, dated 6‑6‑1981 drawn on National Bank of Pakistan B.W.P. Liaquat Bazar Branch, Karachi.

The respondent had filed affidavit in evidence of its Mutawalli Siddique Ahmed and the appellant had filed an affidavit in evidence of their Manager Muhammad Ismail. They were cross‑examined by the learned counsel for the respective parties.

The learned Rent Controller on basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided point No.l in the affirmative and allowed the eviction application vide order, dated 16‑5‑1985.

The appellant above named being aggrieved against the order dated 16‑5‑1985 of the XIIth Senior Civil Judge and Rent Controller Karachi has preferred this First Rent Appeal on the grounds disclosed in the memo of Appeal.

Mr. S. Manzar Ahmed the learned counsel for the appellant had contended that the learned Rent Controller failed to consider the fact that the appellant paid to the respondent the rent for December 1980 and January 1981 through cheques on 16‑2‑1981. His submission is that the appellant is not a defaulter.

On the other hand Mr. S.A. Majid the learned counsel for the respondent has submitted that the appellant is a defaulter and the order of the learned Rent Controller is in accord with the evidence on record.

I have heard the learned counsel for the appellant and respondent. I have gone through the entire evidence recorded in the case with the assistance of the learned counsel appearing on either side and have also perused the impugned order.

The tenancy in this case is oral and it is the case of the respondent is that the rent is payable by the appellant in advance on 5th of every month. It is not in dispute that on 6‑5‑1981 when the eviction application was filed against the appellant before the Controller, rent for the months of December 1980, January 1981, February 1981, March 1981, April and May 1981 was not paid. It is not disputed that rent for the months of December 1980 and January 1981, was tendered through Cheque No. CC 2.413141 dated 19‑2‑1981 which was presented to the Bank but was dishonounoured on presenttion. It is also not in dispute that after filing of the eviction application and before service of notice in the eviction application, the appellant tendered rent for the months of February March and April 1981 through Pay Order No. D.222361, dated 6‑6‑1981 drawn on National Bank of Pakistan B.W.P. Liaquat Bazar, Karachi. The Rent Controller after recording evidence in the case reached the same conclusion that the appellant had committed default at least for the month's of February 1981. He accordingly held that the default in respect of February 1981 was deliberate and wilful. The tender of rent as contemplated under section 15(2) (ii) of the Sind Rented Premises Ordinance, 1979, should be within fifteen days after the expiry of the period fixed by the mutual agreement between the parties for payment of rent, or in the absence of such‑an Agreement within sixty days after rent has become due for payment. It is an admitted position that the rent for December 1980 and January 1981. This was tendered after default for the month of December 1980 was committed. Similarly the rent for the month of February 1981 and March 1981 was tendered on 6‑6‑1981. This was tendered after default for the months of February and March was committed. The other reason is that the cheque dated 19‑12‑1981 was dishonoured.

The contention of the learned counsel for the appellant is that it was not presented immediately but it was presented on 16‑3‑1981 and represented again on 25‑3‑1981. This contention of the learned counsel for the appellant is without force. It is the duty of the person who issues cheque has to maintain sufficient funds in his account for a period of six months. In view of this matter even though the rent for the month of January 1981 was not tendered within time but tendered after the default and already committed and the same cheque was dishonoured on presentation. In this view of the matter the default was deliberate and wilful.

The last submission of the learned counsel for the appellant is that the rent for the months of February, March and April was tendered by Pay Order dated 6‑6‑1981 as such the appellant did not commit any default. This contention of the learned counsel is based on a misconception of law. The fact that the rent was tendered after the default was committed, before the service of notice of eviction application against the appellant is of little significance as such tendering of rent on the part of the tenant cannot erase the effect or consequences of default already committed by him. Reference in this connection may be made to the case of Haji Fida Hussain v. Muhammad Haider Khan 1972 S C M R 262. The learned counsel for the appellant as unable to point out any misreading of the evidence by the learned Controller. It seems that the order of the learned Controller is in accord with the law.,

The above are detailed reasons for the short order dated 27‑5‑1986. The short order reads as under:‑

"For the reasons to be recorded later on appeal is dismissed. The appellant is allowed four months time subject to the condition that he will continue to deposit rent in accordance with the tentative rent order. In case appellant failed to hand over the possession on or before 30th September, 1986. Failing which writ of possession should be issued against him without any notice."

In this circumstances of the case the parties shall bear their own costs.

H . B . T . Appeal dismissed.

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