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First Rent Appeal No.292 of 1984, decided on 19th April,1997.

‑‑‑S.15‑‑Tenant failing to prove that rent for four months was paid to landlord‑‑Default in payment of even one month rent, held, was sufficient to order eviction of tenant.

‑‑‑S.21‑‑Appeal‑‑Appellant, in presence of specific plea taken in the written statement, cannot be allowed to go round and change stand arbitrarily.

‑‑‑S.15‑‑Default in payment of rent‑‑Rent paid by tenant to Income‑tax Department pursuant to statutory notice under S. 92 (2), Income‑tax Ordinance, 1979, held, absolved tenant against landlord on whose behalf it had been paid‑‑Tenant shall be deemed to have tendered rent of respective months on dates when respective pay orders were issued and delivered to the Income‑tax Officer.

‑‑‑S.15‑‑Ejectment sought on ground of using premises for purposes other than that for which it was let out‑‑Agreement of lease indicated that lessee shall be at liberty, inter alia, to make necessary alteration of the demised premises to suit their business and office requirements‑‑Tenant, a Commercial Bank, utilising premises for storing its own record as well as for housing its own engineering department therein, held, would not legally provide a ground to landlord for seeking eviction of tenant on the ground that premises was being used for purposes other than for which it was let out‑‑Once premises is taken by a lessee for business or commercial purpose, it was open to it to run any business therein.

M.M. Mahrnoodi for Appellant.

Nisarally for Respondent.

Date of hearing: 5th and 12th April, 1987.

This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance) has been brought at the instance of the tenant against the order dated 8‑2‑1984 of the XII Senior Civil Judge/A.S.J./Rent Controller, Karachi, whereby he has ordered the eviction of the appellant on the grounds of default in payment of rent and the appellant's using the premises for purposes other than that for which it was let out.

2. The facts giving rise to this appeal are that the appellant is the tenant of the respondent in respect of office premises bearing Nos.150, 152, 153 and 154, Liaquat Bazar, M.A. Jinnah Road, Karachi, on a monthly rent of Rs. 1050.

3. The respondent filed an application under section 15 of the Ordinance for the eviction of the appellant on the grounds of default in payment of rent, unauthorised additions and alterations in the premises thereby impairing its value, for using the premises for purposes other than that for which it was let out and for causing nuisance to the other tenants of the building.

4. The appellant filed written statement denying all the allegations made in the application with regard to the matters enumerated above. It was averred that the rent was being regularly paid to the respondent through pay orders and that from the month of December, 1980 the rent was being regularly paid to the Income Tax Officer, Companies Circle B‑8, Karachi, pursuant to the statutory notice received from him.

5. On the pleadings of the parties the learned Rent Controller framed the following issues:

"(1) Whether the opponents have committed default in payment of rent

(2) Whether the opponents have made unauthorised additions and alterations in the premises which has impaired materially the value and utility of the premises in case

(3) Whether the opponents are using the premises other than that for which it was let out

(4) Whether the opponents are causing any nuisance to the other tenants

(5) What should the order be "

The learned Rent Controller decided the issues No.l and 3 in favour of the respondent and the other two issues in favour of the appellant and ordered the ejectment of the appellant. Hence this appeal.

6. I have heard the learned counsel for the parties at length and have also perused the record and proceedings of the trial Court with their assistance.

7. The learned counsel for the appellant, Mr.M.M. Mahmudi, contended that the default in payment of rent was claimed for the months of August, 1980 to March, 1981. Mentioning of the month of April, 198,1 in the application for ejectment was misconceived inasmuch as the application was presented on 6th April, 1981 when the rent for April 1981 had not become due and payable by the appellant. The premises in question were originally let out to the Bank of Bahawalpur Limited, firstly, in October, 1957 pursuant to an agreement of lease. Later on, several lease deeds were executed by the parties. and it was on first April, 1980 that the last agreement of lease (Exh.A/4) was executed for a period of 3 years. After the expiry of this lease period it was not renewed through the execution of any other rent agreement. The Bank of Bahawalpur was merged in the National Bank of Pakistan in the year 1974 and hence the tenancy in respect of the disputed premises devolved upon the appellant. In the absence of any lease agreement executed between the appellant and the respondent, the appellant continued to be the statutory tenant of the said premises.

8. Making his submissions on the point of alleged default in payment of rent, Mr. Mahmudi submitted that the rant for the months of August and September was tendered to the respondent through Pay Order No.242776 dated 6‑10‑1980 for Rs.2001 (Exh.3/1.) The rent for the month of October, 1980 was also tendered through Pay Order No.422821 dated 1st November, 1980. The rent for the subsequent months, according to him, was paid to the Income‑tax Department pursuant to the statutory notice dated 4‑2‑1980 (Exh.G) under section 92(2) of the Income‑tax Ordinance, 1979, through the pay orders Exh.4/1 to Exh.4/4. The payments so made to the income‑tax department were, the counsel so contended, the payments to the assessee inasmuch as it is specifically provided in subsection (2) of section 92 that "any person who has paid any sum in compliance with a notice under subsection (1) shall be deemed to have paid such sum under the authority of the assessee and the receipt of the Income‑tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in such receipt." The learned counsel for the appellant, therefore, submitted that the learned Rent Controller has erred in holding the appellant to be in default in payment of rent of the premises in question in respect of the months of August to November, 1980 and so also he has fallen into an error in further holding that the payment made by the appellant to the Income‑tax Department from December, 1980 onwards would not save it from default.

9. At this stage the learned counsel for the parties drew my attention to the fact that when this appeal came up for hearing before Mr. Justice Salim Akhtar on 6th August, 1985, upon an application of the appellant vide CMA‑640/85 his Lordship was pleased to allow the appellant's application for producing evidence in this Court with regard to the Pay Orders which were alleged to have been issued and delivered to the respondent. On production of the evidence the respondent was also made entitled to produce evidence in rebuttal. It was pursuant to this order of this Court that two witnesses, one each on behalf of the parties, were examined. On behalf of the appellant one Liaquatullah, a clerk, was examined whereas on behalf of respondent Shaikh Abdur Rashid, the Managing Director of the respondent was examined.

10. The appellant's witness produced counter‑foil of Pay Order No.C‑422776 dated 6‑10‑1980 (Exh.3/1). He also produced the payment remit account register wherein the entry in respect of Exh.3/1 was made and it was exhibited as Exh.3/3. Another entry in respect of Pay Order bearing No.422821 dated 1‑11‑1980 is marked as Exh.3/4. At serial No.34 page 66 Pay Order has been marked as Exh.3/5. The Pay Order dated 6‑10‑1980 was allegedly delivered to the respondent through peon book on 9th October, 1980 vide entry Exh.3/7. The other Pay Order dated 1‑11‑1980 was delivered through peon book on 8‑11‑1980 vide Exh.3/8. Both the Exhs. 3/7 and 3/8 were received by one Amin Khan.

11. The appellant's case was that Amin Khan was chowkidar of the respondent. It was in this way that the tender of the aforesaid two Pay Orders was sought to be proved by the appellant.

12. The learned counsel for the appellant further stressed that even if the payment of rents through the said Pay Orders is not accepted then too the payment made to the Income‑tax Officer, through Exh.4/1 to 4/4 pursuant to the statutory notice under section 92 of the Income‑tax Ordinance, 1979 can be taken to be the payment to the appellant for the months of August, 1980 to March, 1981 and be adjusted accordingly.

13. Mr. Nisarally, learned counsel nor the respondent, submitted that the Pay Order dated 6‑10‑1980 Exh.3/1 is in respect of the months of September and October, 1980 as is evident from the counter foil, Exh.3/1. This entry is further supported by the entry in the register vide Exh.3/3.

14. The counsel then contended that the tenant being the debtor of the landlord had specified the rent paid through Pay Order dated 6‑10‑1980 (Exh.3/1) to be adjusted against the rent for the months of September and October, 1980, the landlord /respondent was legally obliged to appropriate it accordingly in terms of section 59 of the Contract Act. He thus, emphasised that the rent for the months of August, 1980 remained unpaid. If the said rent even otherwise adjusted towards September then the rent for the month of October, 1980 remained unpaid. In short, the contention of Mr. Nisarally is that the appellant was in arrears of 4 months rent i.e. August, 1980 to November, 1980, whereas he remitted the rent of only three months and hence there remains an admitted default in payment of one month's rent either of August, 1980 or November, 1980. Even default of one month was sufficient to order the eviction of the appellant.

15. The next contention raised by Mr. Nisarally, learned counsel for the respondent is that the main question is that the Pay Order allegedly sent by the appellant were at all received by the respondent According to him, there was no proof of the said pay Orders having been delivered to or received by the respondent. The appellants case, he emphasised, is that these were delivered to one Amin Khan who was allegedly an employee of the respondent. This alleged fact was not, however, proved through any reliable evidence. The respondent's case is that there was no person by the name of Amin Khan in its employment. Referring to the Account Opening Form of Amin Khan in the appellant's bank, he submitted that it does not furnish any proof that Amin Khan was an employee of the respondent The Account Opening Form does not bear the date nor the respondent or any of its employees had introduced Amin Khan. On the contrary as per entry against the relevant Introduction Column, Amin Khan was introduced by an employee of the appellant itself. The mere fact that in the opening form the address given is that of the respondent, is of no consequence and could not lead to an irresistable conclusion that Amin Khan was an employee of the respondent. Moreover, the peon book through which the said pay orders were allegedly delivered to Amin Khan does not bear the description of the documents and hence does not furnish any proof muchless the conclusive proof that these were the pay orders in question. The person delivering the said documents was not examined by the appellant in order to prove that the same were delivered to an employee of the respondent.

16. Mr. Shaikh Abdur Rashid, the Managing Director of the respondent, has deposed that the Pay Orders Exh.3/1 and 3/2 and so also Exh.3/7 were not received by him nor any other person in the respondent company. He has further deposed that Amin Khan whose signature appears at Exh.3/7 was not an employee of the respondent and that he did not know any person by the name of Amin Khan. With regard to the pay orders sent to the Income‑tax Department vide Exh.4/1 to 4/5, covering the period of rent from the month of December, 1980 onwards, Mr. Nisarally submitted that though they are shown to have been issued on various dates, yet they were all encashed on 29th April, 1981. He further urged that despite knowing during the ejectment proceedings that the Pay Orders Exhs.3/1 and 3/2 allegedly delivered to the respondent were not encashed yet the appellant did not take any steps to pay the rent of these months to the respondent. Thus, it was, according to him conclusively proved that the appellant had defaulted in payment of rent for the months of August, 1980 to March, 1981.

17. In reply, Mr. Mahmudi submitted that the section 59 of the Contract Act was not applicable to the facts of this case. He reiterated that it was through an error on the part of the appellant to mention that the first pay order was pertaining to the rent for the months of September and October, 1980 instead of August and September, 1980.

18. I have given due consideration to the submissions of the parties representatives and I am clearly of the opinion that the appellants have failed to prove that the rent for the months of August, 1980 to November, 1980 was paid to the respondent. There is no reliable evidence available on record to establish that Amin Khan, who allegedly received the pay orders in respect of the rent for these months, was an employee of the respondent. Moreover, even it is not borne out that the entries Exh.3/7 and 3/8 in the peon book were relating to the two pay orders in question. The tender of rent for the three months to the respondent vide pay orders in question thus, remains unproved. Even otherwise the rent due was for four months, namely, from August, 1980 to November, 1980 whereas the rent was allegedly tendered through pay orders for three months only. The default in payment of rent for one month, as rightly pleaded by the learned counsel for the respondent, stands established. At no point of time it was either pleaded or proved that the rent of the remaining one month was at any time paid or tendered. So even if it was held that the rent for the months of September, 1980 to November, 1980 or from August 1980 to October, 1980 as sought to be explained by the learned counsel for the appellant, had been tendered by the appellant to the respondent, the default of one month at any rate stands proved. And the default in payment of even one month rent was sufficient to order the eviction of the appellant. After considering the evidence led before the :trial Court as well as this Court I am convinced that the rent for the entire period commencing from August, 1980 to November, 1980 was neither tendered nor paid by the appellant to the respondent I do not, therefore, feel hesitant to uphold the finding of the Rent Controller in this behalf. I also do not feel persuaded to accept the contention of the learned counsel for the appellant that the amount of rent paid to the Income‑tax Department may be adjusted for the period from August, 1980 onward. It has been specifically pleaded in the written statement that "from the month of December, 1980 the applicant are paying the rent regularly to the Income‑tax Officer, Companies Circle VIII, Income‑tax Building, Karachi, pursuant to the notice under the Income‑tax Act, whereby the opponents were directed to pay the money to the Income‑tax Department due from the opponents to the applicant". In the presence of specific plea taken in the written statement the appellant cannot be allowed to go round and change the stand arbitrarily.

19. I am, however, of the opinion that the rent from the month of, December, 1980 onward paid to the Income‑tax Department in compliance with the notice issued and served upon the appellant under section 92(2) of the Income‑tax Ordinance, 1979, clearly absolved the appellant against the respondents on whose behalf it has been paid. The Rent Controller while recording a finding to the contrary in this behalf had, in my view, gone wrong. Moreover, he has not given arty reasons for his finding as to why the payment made by the appellant to the Income‑tax Department from December, 1980 would not save it from the default. The appellant has succeeded to establish on record that the pay orders in respect of payment of rent for the months of December, 1980 onwards were duly issued and tendered by the appellant to the Income‑tax Officer and the mere fact that the I.T.O. encashed the said pay orders on one day viz: 29th April, 1981, would not come in the way of the appellant. The appellant shall be deemed to have tendered the rent of the respective months on the dates when the respective pay orders were issued and delivered to the Income‑tax Officer.

20. Now I proceed to consider the validity or otherwise of the impugned order on issue No.3, namely, whether the appellant is using the premises for purposes other than that for which it was let out. It was contended by the learned counsel, Mr. M.M. Mahmudi, that the finding of the learned Rent Controller on this issue was wholly erroneous and contrary to the evidence available on record. He emphasised that the lease agreement Exh.P/4 does not specify the purpose for which the premises was let out to the appellant. In this view of the matter, the appellants are entitled to use the demised premises either for banking business or for housing any of its department. According to him, learned Rent Controller has fallen into an error in holding that the premises was let out for banking purposes only. He further urged that the appellant had not sublet or given the premises to any other person for using it for purposes other than that for which it was let out. On the contrary, the admitted position is that the appellants are using the premises for their own Engineering Department.

21. Mr. Nisarally, on the other hand, placed reliance on the contents of the agreement of lease dated 1‑4‑1970 (Exh. A/4) to contend that the premises were let out only for banking business. He also drew my attention to the statement of Qadir Akhtar, the Accountant of the appellant bank, made in cross‑examination to the effect that "it is correct that our branch has been shifted to another building known as "Madha Chambers" and that it is correct that the counter transaction of the bank is not being run in this branch", and contended that it was a clear admission on the part of the appellant's own witnesses that the premises were given only for banking business.

22. Having heard the arguments of the parties' representatives and upon perusal of Exh.A/4 to which the counsel for the respondent has drawn my attention I am of the opinion that the learned Rent Controller has wrongly decided this issue against the appellant. In clause (c) of sub‑para. (A) of clause II of the said agreement of lease it is clearly mentioned that the lessee shall be at liberty, interalia, to make necessary alterations of the demised premises to suit their business and office requirements, unlike a clause in the earlier agreement laying down" that the lessee shall use the premise for their office and for the requirement of the staff and for no other purposes". Once the premises are taken by a lessee for business or commercial purpose then it is open to it to run any business therein. However, in the instant case the appellant is utilising the said premises for storing its own record as well as for housing its own Engineering Department therein. This cannot legally provide a ground to the respondent for seeking eviction of the appellant under the Sind Rented Premises Ordinance, 1979.

23. For the foregoing reasons I would reverse the finding of the learned Rent Controller on issue No.3 and answer the issue No.3 in the negative.

24. Under the aforesaid facts and circumstances of the case the impugned order of the learned Rent Controller allowing the application for eviction of the appellant is upheld with the above‑noted modification and the appeal is, consequently, dismissed. The appellant is, however granted ninety days time to handover the vacant possession of the premises to the respondent from today, subject to the appellant's depositing the agreed monthly rent regularly as per tentative rent order of the Rent Controller.

M.B A./N‑25/K Appeal dismissed.

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