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First Rent Appeal No.504 of 1983, decided on 27th July, 1986.

---Ss.15(2)(ii))--Default in payment of rent--Proof--Tenant tendered rent of premises long after expiry of statutory period of 60 days- Tenant, held, had committed legal default in payment of rent and had incurred liability of ejectment on that ground.

1973 S C M R , 598; 1973 S C M R 309; P L D 1984 S C 32; 1985 C L C 316; P L D 1984 Kar.373; P L D 1982 Kar.188; Asian Traders v. M/s.Lakhani Brothers 1985 C L C 21; Ghulam Abbas Adam Ali 'Jeewaji v . N. Hassan Ali & Company P L D 1984 Kar. 373 and Najmuddin v. Zamir Ahmad P L D' 1982 Kar.188.ref.

Khaliq Humayun for Appellant.

Jhamat Jethanand for Respondent.

The appellant Nawab Khan is landlord of, and the respondent Muhammad Suleman is a tenant in, a shop No.41/1-A, Shahi Bazar, Shujawal in district Thatta, at the settled rent, since May 1973. The appellant filed Rent case No.2 of 1983 before Senior Civil Judge/ Controller, Thatta, on 6-1-1983, for ejectment of the respondent from the shop on the grounds of default in payment of rent from March 1982 to December, 1982, and the appellant needing the shop for his own use. The respondent resisted the ejectment case. The parties adduced evidence. The learned Controller dismissed the ejectment application on both the grounds by order dated' 17-5-19.83. This appeal is directed against that order.

The ground of personal requirement; of the premises by the appellant was not pressed before the learned' Controller arid it has not been agitated at-the hearing of the appeal, as well. The learned counsel for the appellant has pressed the ground of default in payment, of rent and urged that the respondent had not paid rent for the period from March, 1982 .to December, 1983, and there was wilful default on his part and he was liable to be ejected. He has made reference to the evidence on record of the appellant Nawab Khan that the respondent had not paid rent for the aforesaid period. He has also made reference to the evidence of the respondent that he had remitted rent for the months of March, April and stay 182 collectively by money order and advanced the argument that the respondent had committed default in payment of rent. According to him, the rent for the subsequent period was remitted in lump sum and therefore there was default in payment of monthly rent. He has placed reliance on' the following cases in support 'of his argument that the remittance of rent by money order did not absolve the respondent of his default in payment of rent in accordance with law.

1. 1973 S C M R 598 and 309. .

2. P L D 1984 S.C.32.

3. 1985 C L C 316.

The learned Counsel for the respondent has contended that the rented premises is situated in Shujawal Town, District Thatta, whereas the appellant has had been living at Karachi and he used to collect rent from the respondent in lump sum or the respondent used to remit rent to him at Karachi in lump sum. He has further contended that the appellant had told the respondent that he was shifting his residence to another place and he would communicate to him new address for remitting to him the rent and the respondent awaited communication of fresh address, which was disclosed to him in the form of a notice for vacating the premises. He has also contended that the rent was remitted by the respondent to the appellant thrice but he refused to accept it. He has made reference to the money order coupons of remittance of rent put in evidence. He has placed reliance on the following cases in support of the argument that 'the remittance of rent by money order amounted to valid tender of rent absolving the tenant of default in payment of rent.

(i) 1985 C L C 21.

(ii) P L D 1984 Kar.373.

(iii) P L D 1982 Kar. 188.

Default in payment of rent attributed to the respondent is for the period from March, 1982 to December, 1982. It is admitted position that the respondent did not pay rent month wise for the months of March, April and flay, 1982. He claims .to have tendered rent by money order for all the three months on 26-6-1982, after he was served notice dated 21-6-1982. In support thereof, a money order coupon Ex.24 representing rent for the months of March and April, 1982, dated 26-6-1982 has been filed. But, by that time, the respondent had committed legal default in payment of rent for the month of March, 1982 as the period of 60 days allowed in payment of rent under clause 2 of subsection 2 'of section 15 of the Sind Rented premises Ordinance 1979, had expired by 30th of May 1982. The first remittance was made only after the notice was served on the respondent. Rent for subsequent period is claimed to have been remitted twice but was not accepted. The plea that the appellant had made the respondent to understand that the, appellant was shifting to a new place and he should await communication of fresh address has not been substantiated. Obviously, there was clear default on the part of the respondent in payment of rent for the month of March, 1982. The learned Controller did not take notice of this tact while dismissing the ejectment application. The cases relied upon by the learned Counsel not extend to the situation like the present case where there is no reasonable explanation for non-payment of rent for atleast one month viz. March 1982. In. the First- Case Viz. Asian Traders Vs. M/s: Lakhani Brothers (1985 C L C 21, a practice .had been established that the rent was mutually paid and received on yearly or bi-yearly basis. No such practice is proved to have been established in this case: In the second case. Ghulam Abbas Adam Ali Jeewaji v. N. Hassan Ali and Company: (P L D 1984 Kar.373). certain circumstances have been visualised where discretion may not be exercised in ordering ejectment of a tenant in cases of default in payment of rent. No such circumstances seem to have existed in the instant case. In. the third case, Najmuddin v. Zamir Ahmad (P L D 1982 Kar.188) conduct of the landlord amounting to waiver or' acquiescence in late payment of rent was considered a circumstance in favour of the tenant against ejectment on the ground of default. But there is no such circumstances in the instant case. On the contrary, the appellant had issued notice to the respondent that he had not paid rent for three months. In the cases cited by the learned counsel for the appellant it was held that payment of rent is statutory objection on the 'tenant and any breach or laxity in the discharge of that obligation ensues consequences of ejectment.

Accordingly, the respondent incurred the liability of hi ejectment from the rented premises on the ground of default in payment of rent for the month of March, 1982. The order of the learned Controller is not sustainable and is set aside. The appeal is allowed and the respondent is directed to vacate the rented premises and deliver its vacant possession to the appellant within one month. In the circumstances of the cases, the parties shall bear their own costs.

H.B.T./N-59/K Appeal allowed.

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