' The brief facts of the matter are that the respondents are the landlords of Shop No,2 in the ground floor of the premises known as Al-Hijaz Hotel Building, Napier Road, Karachi, whereas the petitioners are the tenants at the agreed rate of rent of Rs,130 per month. It was the respondents' case before the learned Rent Controller that the rent for the months of May, June and July, 1991 were never paid to them despite repeated reminders etc. And hence they were constrained to file the application against the petitioners for their eviction from the premises. The petitioners' case on the other hand is that the respondent No,1 on behalf of himself and the other respondents used to collect the rent periodically in lump sum at his convenience and rent for the period in question was collected by him on 14-7-1991 in the presence of witnesses. However, he did not issue a receipt promising to do so later on. Thereafter, he started demanding enhancement in rent and refused to issue a rent receipt for the period in question. Hence, the petitioners were constrained to send the rent for the months of May, June and July, 1991 by way of money order, which was refused by respondent No,1 whereafter immediately the petitioners filed MRC bearing No,1447/1991 and started depositing the rent in Court. Consequently, the default in payment of rent is denied.
2. Both the parties' witnesses filed their affidavits in evidence and were cross-examined. After having heard the learned counsel for the parties the learned Rent Controller came to the conclusion that the default stood established and hence directed the petitioners to vacate the premises.
3. The petitioners filed F.R.A. No,3/2002 before the learned Ist Additional District Judge, Karachi (South), against the orders of the learned Rent Controller which was dismissed vide the impugned order and hence the petition.
4. In support of the petition Mr. I.H. Zaidi has firstly submitted that the tenancy between the parties is a statutory one as admittedly there is no rent agreement at all. Per learned counsel the terms and conditions printed on the reverse of the rent receipt would not amount to an agreement because it was not signed by the petitioners and hence not in accordance with section 5 of the Sindh Rented Premises Ordinance. Hence section 10(1) of the Ordinance would control the rights and obligations between the parties viz. Rent had to be paid by the 10th of the month next following the month in which it was due and so also the petitioners could take advantage of the grace period of 60 days as provided in section 15(2)(ii) thereof. Consequently, for the month of May rent was to be paid by 10-8-1991, for June it was to be paid by 10-9-1991 and for July by 10-10-1991. Per learned counsel therefore there would not be any default as the money order was sent on 30-7- 1991 by the petitioners to the respondent No,1 for the months in question. Furthermore per learned counsel the rent was deposited in Court on 7-9-1991 when the petitioners came to know that rent had been refused by respondent No,1. In support of his submissions he has relied upon Hakim All v.
Muhammad Saleem 1992 SCM R 46, Shezan Limited v. Abdul Ghaffar 1992 SCM R 2400 and E.H. Jaffar v. Sultan Karam Ali 1995 SCM R 330.
5. On the other hand Mr. I.A. Ansari has submitted that per the respondents the tenancy was from month to month and the respondent No,1 used to visit the petitioners every month for the purpose of collection of rent but the same was paid in lump sum. Furthermore, as in the MRC the petitioners are depositing the rent every month there is no question of any statutory tenancy.
6. Next learned counsel has contended that in pars-3 of his affidavit in evidence the petitioners witness says that the rent for the defaulted period was collected on 14-7-1991 by the respondent No,1 but no receipt was issued and hence the money order was sent on 30-7-1991 and finally the MRC filed as the money order was refused. However, there is nothing on the record as to when the petitioners came to know that the money order was refused. Even otherwise, per learned counsel, if the rent for the month of May was due on 10-8-1991 at least for the month of May there is a default as the rent was deposited in Court on 7-9-1991.
7. Finally, learned counsel has submitted that there are two concurrent findings of competent Courts of law which have both considered the facts and the evidence in the matter and hence the same should not be disturbed in this petition.
8. In support of his submissions he has relied upon Muhammad Anwar Azim v. R.I.G. Education Board PLD 2003 Kar. 34, Allah Din v. Habib PLD 1982 SC 465, Muhammad Akram Butt v. Shajaud Din 1991 SCM R 1117, Mrs. Parveen All Hamid v. Mrs. Ameena PLD 1999 Kar. 277, Saeed Ahmed v. Syed Rais Pervaiz PLD 1997 Kar. 247, Syed Amir Saeed v. Mushtaque Ahmed 2002 MLD 1266, Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroze PLD 1992 SC 263, Salim Ahmad Khan v. Mst. Jamila Latif 1990 SCM R 1117, Muhammad Subhan v. Mst. Bilquis Begum PLD 1994 Kar. 106 and Saifullah v. Muhammad Bux 2003 M LD 480..
9. In rebuttal Mr. I.H. Zaidi has submitted that per the petitioners as the receipt was not issued the money order was sent on 30-7-1991 and the refusal came to the knowledge of the petitioners after the rent case had been filed on 21-8-1991 upon which the MRC was filed by the petitioners on 7-9- 1991. Hence, as the refusal has to be after 30-7-1991 there cannot be any default for May, 1991.
10. I have heard the both learned counsel and my conclusions are as under
11. It would be seen that regarding the issue whether or not there is a statutory tenancy between the parties, admittedly there is no written agreement of tenancy. Learned counsel for the respondents has submitted that the terms and conditions printed on the reverse of the rent receipts would thus govern the relationship between the parties as to payment of rent etc. In my opinion, this is incorrect as section 5 of the Sindh Rented Premises Ordinance explicitly provides that the agreement has to be attested by the Controller within whose jurisdiction the premises are situated or any Civil Judge or Ist Class Magistrate unless it is compulsorily registerable. For this conclusion reference can be made to the case of Hakim Ali v. Muhammad Saleem (supra) wherein the Hon'ble Supreme Court has held as much. Hence, in my opinion, the tenancy between the parties is a statutory One and consequently the rent would be payable in terms of section 10 of the Ordinance read with section 15(2)(ii) thereof i.e, within 60 days of the 10th of the month for which it was due. It would not have to be seen whether any default has been committed by the petitioners in the payment of rent.
12. In this connection, it is the case of the petitioners that the respondent No,1 used to collect rent in lump sum and accordingly for the months of May, June and July, 1991 he did so on 14-7-1991 but did not give the receipts, promising to do the needful soon. When the receipts were not given up to the end of July, the petitioners sent a money order for the rent of these months to the respondent No,1 on 30-7-1991, which was refused and thereafter he had filed the MRC before the learned Rent Controller for depositing of rent. In support of these contentions the petitioners' witness Muhammad Yousuf has produced' the money order receipt in the amount of Rs,390 payable to Ghulam Nabi respondent No,1, who used to collect the rent as Exh.O-1, coupon as Exh.O-2, letter, dated 8-10-1991 received from Chief Postmaster, Karachi City GPO regarding the fate of the money order in question as Exh.O-3 and letter, dated 11-12-1991 received by the witness from the Chief Postmaster, Karachi City GPO to the effect that the money order had been returned to the witness upon being refused by the payee. So also the Postman was examined who has deposed that Exh.O-1 is the money order receipt issued by the City Post Office and Exh.O-2 is the money order coupon on the front side of which is the name of the sender viz. Abdul Ghani and Brothers and the back is the name of the payee. He was unable to produce any further record regarding the money order in question as after a period of three years according to rules the record was weeded out.
Similarly, the Assistant Superintendent City, GPO was also examined who has confirmed that Exh. 0- 1 and 0-2 are the money order receipt and coupon which show the petitioners as senders and respondent No,1 Muhammad Yousuf as the payee. He has also confirmed that Exhs.O-3 and 0-4 are genuine and correct.
13. As opposed to the petitioners' contentions, it is the respondents' case that although they always demanded rent in advance for each month, the petitioners never paid it from month to month but did so at their own convenience. Further for the months in question viz. May, June and July, 1991, no rent was tendered by the petitioners and hence they had committed wilful default in payment of the same in which basis alone ejection is sought. In support of this contention respondent No,1 has produced Exh.A/2 to A/26 which according to him are the rent receipts the last being for the month of April, 1991 in the amount of Rs,130. Under cross-examination he has denied that in fact. The rent receipts are bills. However, upon reexamination he has admitted that he used to get the signatures of the tenants on the counterfoil of said receipts for his own record, which he has produced as Exh.A/32 to A/37.14.
' Upon an assessm ent of the aforementioned evidence it would firstly be seen that there was a practice between the parties of lump sum payment of rent which is evidenced by Exhs.A/2 to A/26.
Furthermore, in my opinion, these so-called receipts are in fact bills as they are titled as such and if they were receipts logically they should be in the hands of the petitioners as tenants and not the respondents as landlords. This conclusion is even more strengthened by the fact that upon a bare comparison of the signatures appearing on Exhs.A/18 to A/26 they tally with those of the respondent No,1 Ghulam Nabi. Secondly it would be seen that if these in fact were bills they should again be in the hands of the petitioners as tenants. It would also not be out of place to observe- at this juncture that the petitioners have failed to produce any rent receipt at all. In this view of the matter, I am of the opinion that no rent receipts were ever issued by the respondent No,1 to the petitioners, in which event the latters contentions that the rent receipt were not issued upon payment of the rent for the months in question has not been established.
15. After having held as above, I would now examine the issue whether the remittance of the money order in question would amount to a tender of rent within the meaning of section 10 of the Ordinance which provides that 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 are situated. In my opinion no particular method has been provided for in the foregoing section as to how rent is to be tendered. Hence this could be done through any method i.e, handed over to the landlord personally or sent to him through mail or for that matter through a money order. It is only after refusal of the landlord to accept the rent that the law obligates the tenant to send it to him through a money order or deposit the same in Court.
Consequently, in my view tender of rent through the money order in question can be considered as valid tender of rent. In this connection, it would be seen that Exh.O-1 is the receipt for the money order in the amount of Rs,390 in the name of respondent No,1 and the money order coupon relatable to the said receipt is Exh.O-2, both of which stand proved.
16. It is quite clear that the said money order was sent by the petitioners to the respondent No,1 on 30-7-1991. This position has been confirmed by the two witnesses of the Post Office. Consequently, I would hold that as the rent for the disputed months was sent on 30-7-1991 there could not be any default for at least the month of May, 1991, since such rent was due as observed above by 10-8-1991.
Even otherwise it would be seen that per the petitioners they started depositing the rent in Court on 7-9-1991 upon refusal of the money order by the respondent. There is nothing on the record to establish as to when the money order was refused' as the petitioners' witness has not specified the exact date and even the witness from the post office department has not confirmed the same, however he has deposed that upon such refusal the money order was received back by the petitioners. Consequently, I would hold that the money order was refused by the respondent No,1, and as the rent for the entire period was deposited in Court on 7-9-1991, hence there cannot be any question of default for the months of June and July, 1991 since for these months the rent was to be deposited as observed above on 10-9-1991 and 10-10-1991 respectively.
17. In view of the above circumstances, I would allow this petition. The impugned order is set aside.