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First Rent Appeal No.262 of 1983, decided on 21st June, 1987.

---S. 15(2)(ii)--Default in payment of rent--Proof--In absence of written tenancy agreement between parties, tenancy would be regulated under S. 15(2)(ii) of Ordinance providing statutory period of 60 days for payment of rent from the day it had become payable--Rent admittedly having been tendered through cheque within statutory period of 60 days, no default in payment of rent on behalf of tenant, held, was committed in circumstances.

AI R 1941 P C 16; A I R 1954 Orissa 198; P L D 1964 Kar. 353; P L D 1968 S C 140; P L D 1969 Quetta 13 and P L D 1961 Dacca 596 ref.

Zaffer Hadi Shah for Appellant.

Z. U. Ahmed for Respondent.

The appellant Dr. Zubaida Hamid Ali Khan filed Rent Case No.2373/74 for eviction of the respondent M. M. Jadoon from Flat No.16,B/4, Shamnaz, Bath Island, Karachi, on 16-9-1974, on the ground of default in payment of monthly rent of Rs.500 for the period from 1st June to 30th September, 1974. The respondent resisted the eviction case, denying default in payment of rent the learned Controller/Senior Civil Judge-XII, Karachi dismissed the rent case by order dated 20-12-1982, holding that the respondent had paid rent upto date and no default was attributable to him. This appeal is directed against that order.

The eviction case was passed on the ground of default in payment of rent for the period from 1st June to 30th September, although the ejectment application was filed on 16-9-1974 i.e. during the month of September, 1974. The respondent's plea is that there was no written agreement of tenancy and therefore tenancy was regulated under the statutory law and rent could be paid/tendered within 60 days from the day it had become payable and he had paid rent during the statutory period of 60 days. His further plea was that he had tendered rent by a Cheque No. CBY 766780, dated 6th July, 1974 which was received by the appellant on 18th July, 1974, and he had sent another Cheque No. CBY 769079 dated 20th August, 1974 and that cheque was returned to him through a Chowkidar somewhere in the middle of September, 1974. On behalf of the appellant/ landlord, Dr. Hamid Ali Khan filed affidavit in evidence alleging that rent was not paid from 1st June, 1974. To rebut the allegation of default in payment of rent, M. M. Jadoon filed his own affidavit and reiterated the same facts that the rent was paid by means of cheques. During the course of cross-examination of Dr. Hamid Ali Khan, a Certificate dated 7-12-1974 issued by the Manager, Habib Bank Limited, Nazimabad Branch, Firdous Colony, Karachi was produced to show that the cheques tendered by the respondent were actually encashed through Dr. Zubaida Hamid Ali Khan's bankers, the United Bank Limited.

The learned counsel for the appellant has contended that the Cheque No.766783 dated 25-7-1974 was never received by the appellant and therefore there was default in payment of rent at least for the month of June, 1974, although rent had not been paid for the months for July and August, 1974 as well. According to him, the Bank Certificate regarding the encashment of cheques put in evidence through Dr. Hamid Ali Khan as Ex. A/3 was not admissible and was not proved even. He has placed reliance on a case reported in P L D 1969 S C 477; and another case reported in P L D 1975 Kar.556. On the other hand, the learned counsel for the respondent has urged that no objection to the admissibility of the Bank Certificate (Ex.A/3) was taken at the time it was put in evidence and therefore no objection to its admissibility could be taken at subsequent stage. He has relied upon the cases reported in A I R 1943 P C 83 and P L D 1969 S C 477. He has contended that the cheques were forwarded to Dr. Zubaida Hamid Ali Khan and she had not given evidence to deny receipt of the cheques. According to him, denial of receipt of cheques by Dr. Hamid Ali Khan has no basis. He has cited several cases reported it A I R 1941 P C 16; A I R 1954 Orissa 198; P L D 1964 Kar. 353; And P L D 1968 S C 140. He has also cited two other cases viz. PLD 1969 Quetta 13; P L D 1961 Dacca 596.

The eviction of the appellant was sought on the ground of default in payment of rent from June, 1974. The eviction application was filed on 16-9-1974. In the absence of written agreement of tenancy, the default in payment of rent was to be examined under the provisions of clause (I) of subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, whereunder the ejectment case was filed. It provides that non-payment of rent within 15 days after the expiry of the time fixed in the agreement of tenancy; or, in the absence of any agreement, within 60 days from the period for which the rent is payable, would be deemed as default is payment of rent. In the absence of written agreement between the parties herein, the question of default has to be considered in the light of second alternative i.e. the default in payment of rent ensued on the expiry of 60 days from the period which the rent was payable. It is not disputed that it was monthly tenancy and therefore default in payment of rent was to ensure on the expiry of 60 days after the last day of the month where for rent was payable. Accordingly, rent for the month of June, 1974 - became due for payment on the 1st of July, 1974 and default in payment thereof ensued on the expiry of 60 days therefrom and that period of 60 days expired on 29th of August, 1974. Similarly, default in payment of rent for the month of July ensued on the expiry of 60 days from 1st August, 1974 and that period expired on 29th of September, 1974. Likewise, rent for the month of August became payable on the 1st of September and- default in payment thereof ensued on 30th of October, 1974. As mentioned above, the ejectment application was filed on 16-9-1974: Thus, there could be default in payment of rent for only one month viz. June, 1974. It was admitted by the appellant's witness Dr. Hamid Ali Khan in cross-examination that they had received a Cheque No.080646 dated 15-5-1974 for Rs.1,000 on 24-5-1974 and another Cheque No.766780 dated 6-7-1974 for 85.1,000 on 22-7-1974. Each Cheque covered the rent for two months. In ordinary course, the rent tendered by those cheques should have represented the rent for the preceding two months. However, Dr. Hamid Ali Khan stated that the first cheque i.e. Cheque No.080646 dated 15-5-1974 represented rent for the months of February and March, 1974 but his statement is based on the information derived by him from his wife Dr. Zubaida in whose name the cheques were issued. She did not appear to confirm as to for which period whose cheques had been issued. In the circumstances, it is to be assumed that the Cheque No.766780 dated 6-7-1974 admittedly received by the appellant represented rent for the immediately preceding two months and it covered the rent for the month of June, 1974. That being the case, there was no default in payment of rent on the part of the respondent. On holding so, it is not necessary to advert to question of admissibility of the Bank Certificate and the cases relied upon by the learned Counsel in connection therewith.

On the conclusion arrived at as above, the appeal is dismissed and the impugned order of the Controller is maintained. Parties shall bear their own costs.

H. B. T. /Z-29/ K Appeal dismissed

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