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First Rent Appeal No. 945 of 1982, decided on 29th October 1986

‑‑‑S. 13(iv)(2) Explanation‑‑Sind Rented Premises Ordinance (XVII of 1979) S. 15‑‑Default in payment of rent‑‑Rent remitted by money order duly tendered‑‑Production of money order coupons, postal receipts and evidence of tenant, held, was sufficient to establish that rent had been remitted by tenant through money order.

Shamsher v. Syed Ahsan Ali 1983 C L C 308 and Mst Shami Bai v Ajmari Khan N L R 1982 U C 498 rel.

‑‑‑S. 15‑‑Default in payment of rent‑‑Tender of rent‑‑Even if landlord refused to accept rent from tenant, tenant, held, was still under obligation to tender entire rent dues continuously.

Yousuf Shah through his brother v Haji Ghulam Jan Khan 1975 S C M R 464 rel.

‑‑‑S. 15‑‑Eviction application‑‑Default in payment of rent‑‑Circumstances of case clearly indicating that after rent for four months was tendered by money order, tenant thereafter failed to tender rent for subsequent months in time‑‑Default in payment having been established, tenant ordered to vacate premises

Najamuddin v. Zamir Ahmad P L D 1982 Kar. 188 and 1985 SCMR 1929 ref.

Suleman Kassam for Appellants.

K.B. Bhutto for Respondent.

Date of hearing: 29th October, 1986.

This appeal is directed against the order passed by the learned VIIth Senior Civil Judge and Rent Controller, Karachi, dated 29‑7‑1982.

2. The appellant is the landlord in respect of a tenement, bearing No. 6, on plot No. K/5, Planning Scheme No. 49, Chakiwara, Karachi, at a monthly rent of Rs.57.50. On 6‑10‑1972 the appellant filed an ejectment application against the respondent on three grounds, viz. (1) that the respondent had committed default in payment of rent from February, 1972, (2) that the respondent had sublet the demised premises to fifteen other persons, and (3) that the respondent had raised unauthorised construction. All the three grounds failed to find favour with the learned controller, who dismissed the application by the impugned order.

3. The only ground urged now by Mr. Suleman Qasim, learned Counsel for the appellant has been that in any case, the appellant had succeeded in establishing default in payment of rent to the appellant, and, therefore, the learned Controller fell into error in exercising his discretion against the appellant. The admitted facts in this regard are that rent was tendered and received by the appellant upto January, 1972. According to the respondent, the appellant refused to accept rent for February and March, 1972, therefore, the same was remitted by the respondent by money order, dated 15‑4‑1972. Similarly, rent from February to April and February to May, 1972 was remitted by two money orders to the appellant, dated 6‑5‑1972 and 10‑6‑1972 respectively. Since all the money order coupons were returned to the respondent, rent due from February to August, 1972 was deposited by the respondent in Court on 21‑9‑1972.

4. The contention of Mr. Suleman Qasim firstly is, that there is no evidence to establish that rent had been remitted by the respondent as claimed by him since the postman concerned was not examined by him in evidence, and his second contention is, that even if it is held that remittance of rent by money order was valid tender of rent to meet the requirements of law, nonetheless, the respondent had committed default in payment since after remitting rent due from February to May, 1972, by respective money orders, he deposited the same in Court on 21‑9‑1972. The contention of the learned counsel is that the respondent was under obligation to deposit rent regularly for each successive month. Reliance in this respect has been placed by the counsel on Yousuf Shah through his brother v. Haji Ghulam Jan Khan 1975 S C M R 464. In this case it was observed by the Supreme Court that "mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve the tenant of his continued liability to pay or tender the same for each successive month".

5. The first contention of the appellant has been vehemently opposed by Mr. K.B. Bhutto, learned counsel for the respondent. The counsel has relied upon the "Explanation" which appears in section 13 of the Sind Urban Rent Restriction Ordinance, 1959 after paragraph (vi) of clause (2), according to which, "Rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area, where the building or rented land is situated, shall be deemed to have been duly tendered." Therefore, the argument of Mr. K.B. Bhutto is that since the respondent has produced three original money order coupons alongwith his affidavit in evidence, the same would be deemed to be sufficient proof in regard to remittance of rent to the appellant by the money orders. The contention of Mr. Suleman Qasim however, is that the money order coupon by itself cannot provide sufficient proof unless corroborated by the postal authorities. The learned counsel has drawn my attention to paragraph (4) of the affidavit of the appellant wherein he has denied that he had refused to accept any money order from the respondent. Mr. Suleman Qasim has also relied on the case of Shamsher v. Syed Ahsan Ali 1983 C L C 308 and Mst. Shami Bai v. Ajmari Khan N L R 1982 U C 498. In these cases it was held that the tenant who had tendered rent to the landlord by money order could only establish the same by examining the postman concerned as mere production of money order would not be sufficient to prove that the same had been offered to the landlord who refused to accept the same. With utmost respect to the views expressed in these cases, I am of the opinion that production of money order coupons coupled with postal receipts and evidence of the respondent on the point was sufficient to establish that the rent in question had been remitted by the A respondent through the respective money orders. The "Explanation" to which I have referred earlier, clearly indicates that rent remitted by money order would be deemed to have been duly tendered. Since by virtue of the Explanation, the respondent was under obligation only to prove that the rent had been remitted and not that the same had been received by the appellant, in my opinion, the evidence produced by him sufficiently discharges his liability to establish that rent had been duly tendered to the appellant. However, the difficulty is, that after rent was allegedly tendered by the last money order, the respondent took three months and eleven days to deposit rent in the Court. Assuming, that the appellant had refused to accept the three money orders, it was the duty of the respondent to continue to tender rent every succeeding month. This, admittedly, the respondent failed to do. Mr. K.B. Bhutto has, however, conceded default only of one month, i.e. June, 1972 provided, according to him, that sixty days' grace period is allowed to the respondent, the tenancy being statutory. According to Mr. Bhutto rent for the month of July which was deposited by the respondent on 21‑9‑1972 in the Court, was clearly within such grace period. I am afraid this argument is not tenable because even the appellant had refused to accept rent from the respondent as alleged, the respondent was still under obligation to tender the entire rent due continuously during each succeeding month, which, admittedly, he failed to do. Such being the admitted position, I am clearly of the view that default was committed by the respondent. Mr. K. B. Bhutto has, however, placed reliance on Najamuddin v. Zamir Ahmad P L D 1982 Kar. 188, wherein it has been held that the Controller is not bound to order eviction in every case where default in payment of rent is proved, but has ample discretion to be exercised after taking into consideration all the factors. Drawing support from this case, Mr. K.B. Bhutto, has argued that the conduct of the landlord and the tenant should be taken into consideration while determining the issue of default, because according to him, there is evidence to show that the tenant was constantly making efforts to tender rent to the landlord, while the latter was throughout avoiding to accept the same. Reliance has also been placed in this respect on 1985 S C M R 1929.Be that as it may, but the circumstance of the instant case clearly indicate that after the rent for the months of February to May, 1972 had been tendered by the respondent by the three money orders, the respondent hereafter failed t to tender rent for subsequent months within time to save him from the penal consequences of ejectment from the demised premises. Therefore, there was a clear default committed by the respondent in payment of rent and the cases cited by Mr. K.B. Bhutto are distinguishable.

The upshot of this discussion is, that the appeal is allowed and the impugned order is set aside and the respondent is ordered to put the appellant in possession of the demised premises within three months from the date of this order. In case the respondent fails to vacate the premises as directed, the execution will follow without further notice to the respondent. There will, however, be no order as to costs in view of the questions raised.

M. Y. H. /5146/x ‑‑‑‑‑ Appeal allowed.

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