1. ' By this judgment I intend to dispose of C.Ps.Nos.636 and 637 of 2002 as common questions of law are involved.
2. ' These petitions are arising out of concurrent findings recorded by the learned Rent Controller and by the learned Appellate Court holding that the petitioner has committed default in payment of rent. The petitioner who is tenant in respect of first floor of Property bearing No,131-A, Bahadur Yar Jang Cooperative Housing Society agreed to pay monthly rent of Rs,4,860 excluding all other taxes, charges etc., under a written Tenancy Agreement dated 31-5-1994. Rent Case No,114 of 1995 was filed on the ground of default in payment of rent from 1-11-1994 upto 16-2-1995. The respondent also filed Rent Case No,396 of 1995 under section 15 of the Sindh Rented Premises Ordinance, 1979 against the petitioner on the ground of default that even after institution of the Rent Case No,114 of 1995, the petitioner has not tendered or paid rent to her and committed default with effect from 16- 2-1995 to 9-7-1995. The petitioner filed written statements denied the default and after recording evidence the learned Rent Controller allowed both applications holding that the petitioner has committed default in payment of rent and directed him to vacate and hand over peaceful possession of the premises in question. The petitioner preferred appeals against the said orders which were dismissed by the IIIrd Additional District Judge vide his judgment, dated 31-5-2002.
3. ' Heard Mr. Muhammad Sadiq, learned Advocate for the petitioner and Mr. Shaffat Hussain, learned Advocate for the respondent.
4. ' Mr. Muhammad Sadiq, learned Advocate for the petitioner argued that the petitioner has deposited rent in the Court of Rent Controller much before filing of the rent case by the respondent and has not committed default as rent was deposited on or before 25th November, 1994. Learned Advocate argued that the rent as per respondent was not paid from 1-11-1994 which was deposited in the Court of Rent Controller within the stipulated period under section 15(1) of the Sindh Rented Premises Ordinance. He argued that the petitioner has deposited the rent with Controller in the month of November, 1994 and as such he has not committed any default. Learned Advocate mainly argued that in terms of subsection (3) of section 10 of the Sindh Rented Premises Ordinance, the tenant has an option when the landlord either refused to accept or avoids the rent, to tender the same by money order and/or to deposit the same in the Court of Rent Controller. Learned Advocate argued that the petitioner has deposited the rent well in time and as such has not committed default. In support of his contention he relied upon the case of Hirijibhai Behrana Dar-e- Mehar v. Messrs Bombay Steel Works 2001 SCM R 1888.
5. On the other hand, Mr. Shaffat Hussain, learned Advocate for the respondent, argued that the rent can be deposited with the Rent Controller only when the landlord has refuse, or avoided to accept the rent and that too after tendering the same by postal money order. Learned Advocate argued that admittedly the instant case without tendering rent through money order the petitioner had deposited the rent with the Rent Controller and as such petitioner has committed default. In support of his contention learned Advocate relied upon the case of Mrs. Ram Lal and 8 others v.
6. Mst. Nargis Khanum PLD 1996 Kar. 440, Munawar Hussain v. Badiul Hassan 1992 CLC 2495, Feroze Ahmad v. Mst. Zehra Khatoon 1992 CLC 735, Mst. Surriya Bibi v. Muhammad Siddique 1994 CLC 955, Mirza Anwar Baig v. Abdul Rab 1996 CLC 394, Abdullah v. Hassan Abbas 1985 CLC 892 and Hirijibhai Behrana Dar-e-Mehar v. Messrs Steel Works Partnership Firm 2001 SCM R 1888.
7. ' I will first discuss the case-law relied upon by the parties.
8. ' Mr. Muhammad Sadiq learned Advocate for the petitioner relied upon the case of Hirijibhai Behrana Dar-e-Mehar v. Messrs Bombay Steel Works 2001 SCM R 1888, but I have failed to see how the said judgment support the contention of the learned Advocate. In the said matter rent was tendered through money order at the correct address of the landlord before committing default. In the case of Munawar Hassan v. Badiul Hassan 1992 CLC 2495 relied upon by Mr. Shaffat Hussain, it was held that burden is upon the tenant to show that he had offered rent to the landlord and the landlord refused or avoided to accept the same. In the case of Mrs. Ram Lal and 8 others v. Mst.
9. Nargis Khanum PLD 1996 Kar. 440, it was held that despite several notices of the landlord upon the tenant to tender rent direct to him, but tenant continued the depositing of the rent in the Office of the Rent Controller despite the fact that the landlord had never refused to receive the rent and in these circumstances tenant was held as defaulter. In the case of Abdullah v. Hasan Abbas 1985 CLC 892, it was held that tender of rent in terms of Explanation (b) of section 13(2) of the Urban Rent Restriction Ordinance (VI of 1959), does not expressly contemplate dispute between the parties was a condition precedent for filing application for deposit of rent and rent can be deposited on some reasonable ground as the same varies obligation of tenant to pay the rent to the landlord and further likely to create inconvenience to him.
10. ' I am afraid that none of the case-law relied upon by the learned Advocate for the parties have any relevance to the question in issue. In the instant case the petitioner alleged that he approached the respondent on 9-11-1994 to tender the rent for the month of November, 1994 but respondent refused to accept the rent and asked him to wait till the respondent gets new printed receipt book. He stated that the petitioner had no other mode of rescue under the circumstances except to deposit the same in Court. The respondent in her affidavit-in-evidence stated that the petitioner has not tendered the rent to her even after institution of the first Rent Case No,114 of 1995.
11. The respondent's attorney denied the suggestion that he had refused the rent on the pretext that the printed rent receipt are not available and he will receive the rent later on. The learned Rent Controller held that the petitioner was under obligation first to offer rent to the respondent and in case of refusal he should have sent the same by money order and in case of a refusal of the money order the petitioner/opponent would have justification to deposit in miscellaneous rent case and held the petitioner is defaulter. The Appellate Court upheld the findings of the Rent Controller and held deposit of rent in misc. Rent case without adopting due course of law is totally contrary to provision B of section 10(3) of the Sindh Rented Premises Ordinance, 1979. In order to appreciate the contentions of the learned Advocates for the parties that deposit of the rent in Court without tendering the rent through money order is contrary to provision of section 10(3) of the S.R.P.O., 1979. I would like to reproduce the said section:-- "Section 10(3).--- Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate."
12. ' From the bare reading of the above quoted section it appears when the landlord refused or avoid to accept the rent then tenant can send the same by postal money order or deposit the same with the Rent Controller within whose the premises is situated. In terms of subsection (4) of section 10 of the S.R.P.O. "written acknowledgement, postal money order receipt or receipt of the Controller shall be accepted modes of payment of rent. Admittedly petitioner had deposited the rent in the Court of Rent Controller having jurisdiction in the matter within fifteen days after the expiry of the period fixed for payment of rent cannot be termed as default merely because he has not tendered the rent first by money order. Subsection (3) of section 10 of S.R.P.O., 1979 gives an option to the tenant to tender the rent by money order or, be deposited with the Controller within whose jurisdiction the premises is situated when the landlord refused or avoided to accept the rent does not contemplate precondition that the tenant ought to have first tender the rent and upon refusal of the landlord to accept the same tender the same by .Money order and upon refusal to accept the money order only then he can deposit rent with the Rent Controller. Subsection (4) of section 10 manifests that the receipt of the Controller or acknowledgement of the postal money order receipts as proof of payment of the rent. Accordingly in my humble view phrase "or" used in between "postal money order" and "be deposited with the Rent Controller under subsection (3) of section 10 cannot be read as "thereafter". However, I would like to mention here that deposit of rent with the Rent Controller normally causes inconvenience to landlord and it is the legal obligation of the tenant first to tender the rent to landlord and only on his refusal to accept the rent then he can adopt other modes provided in law.
13. ' The conduct of the petitioner in depositing the rent in Court is also not above the board, the respondent may have avoided the rent as alleged by him but after service of notice of rent case by the landlord expressing his willingness to accept the rent and denied the fact that the rent was tendered to him, the failure of the petitioner to tender the rent to him instead of kept on depositing in the Court cannot be overlooked as rent can be deposited with the Controller only upon refusal of the landlord. Admittedly, petitioner kept on depositing the rent with the Controller in Miscellaneous Rent Case, even after service of notice of rent case and it is not alleged that the petitioner made any attempt to tender the rent to the landlord after filing of rent case who again refused/avoided the same. I am bound by the judgment of the apex Court in the case of Pakistan State Oil Company Ltd., Karachi v. Pirjee Muhammad Naqi 2001 SCM R 1140, wherein Honourable Supreme Court held that it is mandatory for the tenant first to remit the rent through postal money order and if that was not done, deposit of rent in the Court would not absolve the tenant from being a defaulter for the relevant period.
14. In view of the law laid down by the Honourable Supreme Court as admittedly the petitioner has deposited the rent in the Court without first remitting the same by postal money order, and further failure of the petitioner to tender the rent to respondent after service of notice of rent case, he has committed default and accordingly both petitions are dismissed along with the application. These are the reasons of my short order, dated 7-10-2004.