' ALI SAIN DINO METLO, J.--- By his order dated 17-1-2006, passed in Rent Case No,53 of 2005, Re: Mst.
Attiqa Begum v. Azeemuddin, the learned Senior Civil Judge-VIII, Karachi East, performing functions of Controller under the Sindh Rented Premises Ordinance, 1979 (Syed Ikramur Rehman) directed petitioner Azeemuddin, tenant of respondent Mst. Attiqa Begum, to handover possession of the rented shop situated on the ground floor of Plot No,462./Z, Block No,3, Bahadurabad, Karachi, to her within thirty days thereof, by holding that he had committed wilful default in the payment of rent and that the landlady required the shop in good faith for her personal use also. On appeal, bearing First Rent Appeal No,19 of 2005, re Azeemuddin v. Attiq Begum, the learned Additional District Judge-II, Karachi East (Mrs. Kausar Sultana Hussain) by her judgment, dated 8-11-2006, directed the petitioner to hand over possession of the shop to the respondent within 60 days thereof by holding that he had committed default in the payment of rent. However, according to the Appellate Authority, the landlady did not require the shop in good faith for her personal use. The petitioner has challenged both the orders in the present constitutional petition.
2. Briefly, the facts are that on 1-3-2005 the respondent No,1 filed the above mentioned case for the ejectment of the petitioner on the grounds that he had stopped the payment of rent, which was Rs,605 per month, from August, 2002 and that she required the shop for her personal use also.
3. In his written reply, the petitioner denied to have stopped the payment of rent and also denied that the respondent No,1 required the shop for her personal use. According to him, he was an old tenant occupying the shop since 1985 that is before its purchase by the respondent in 1987. Initially the rate of rent was Rs,350 per month, which was gradually increased to Rs,605. The rent was regularly paid to the landlady directly up to July, 2002, whereafter she allegedly refused to receive it at the agreed rate directly as well as by postal money order and, therefore, from August, 2002 it was being regularly deposited with the Controller in Miscellaneous Rent Case No,205 of 2002.
According to him, the respondent,who was an old lady of about 80_ years, did not require the shop for ter personal use, further contending that a shop in the same building which was got vacated from her another tenant Imtiaz Hussain was also lying vacant.
4. The respondent examined her son-in-law and attorney S. Ferozuddin; while the petitioner examined himself. The Controller directed the petitioner to hand over possession of the shop to the respondent by holding that he had committed default in the payment of rent in the sense that he had failed to prove that the landlady had refused to receive the rent before it was deposited with the Controller and that she required the shop in good faith for her personal use also.
5. The Appellate Authority reversed the finding of the Controller regarding landlady's personal need but maintained the order on the ground of default in the payment of rent as according to it also, in absence of sufficient evidence to establish refusal to receive rent by the landlady, deposit of rent with the Controller was not a valid tender of rent.
6. According to the findings of the Controller as well as the Appellate Authority, the petitioner had committed default in the payment of rent not because he was not depositing rent regularly with the Controller but because he had failed to prove that the landlady had refused to receive rent before he started depositing it with the Controller. The judgment of the Appellate Authority contains date wise chart of deposits clearly showing that the rent was regularly deposited well within time.
This was within the knowledge of the respondent right from the beginning. In her notice, dated 27- 12-2002, she had asked the petitioner to pay rent at the rate of Rs,5,000 per month, instead of the agreed rate of Rs,605 per month. In his reply, dated 9-1-2003, the petitioner termed her demand was arbitrary and told her that on refusal to receive rent at the agreed rate of Rs,605 per month, he was depositing the same regularly in the Miscellaneous Rent Case No,205 of 2002. On receipt of the reply she kept quiet for more than two years. However, by another legal notice dated 16-2-2005 she called upon him to pay the arrears of rent and also to vacate the shop as it was required for her personal use. Conspicuously, the notice does not mention the rate of rent as well as the period of arrears.
7. In his cross-examination, the attorney and son-in-law of the respondent No,1 admitted that before filing the ejectment case it was well within the knowledge of the respondent that the petitioner was depositing rent with the Controller. But, in kite of all these things, the respondent No,1 did not plead that she had not refused or avoided to receive rent at the agreed rate or that the petitioner was depositing rent with the Controller without any justification. She pleaded pure and simple stoppage of rent.
8. Subsection (2) of section 10 (ibid) provides that rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing and subsection (3) ibid 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 is situate. It will be worth to reproduce the two subsection:--- "(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(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.'
9. The use of words 'as far a may be' in subsection (2) is not without significance. There can be situations in which it may be very difficult to pay rent directly to the landlord as for example where he is residing at a far place within or outside the country. Keeping in view the convenience of landlords, the law provides for the payment of rent directly to them but at the same time, it, visualizing the possible difficulties of tenants, does not make it mandatory. Non-mention of consequences and use of words 'as far as may be' clearly shows that the provision is directory and not mandatory. The use of word 'may' in subsection (3) also shows that refusal or avoidance to receive rent is not an essential condition for sending the rent by postal money order or depositing it with the Controller.
10. It is also not necessary that before depositing rent with the Controller, it should be sent by postal money order. The modes are independent. Neither of the two modes is dependent upon the other.
One may opt for any mode without first trying the other.
11. The two modes are also not exhaustive. They do not exclude other modes of payment. For example, payment through banking channel cannot be treated as illegal.
12. Moreover, refusal of landlord to receive rent directly is not the only justification for opting the other modes. Avoidance is also a justification and one may infer avoidance from the conduct of a landlord. In the present case, the conduct of the landlady in abruptly demanding rent at exorbitantly high rate of Rs,5000 in place of the agreed rate of Rs,605 per month is sufficient to infer her avoidance to receive rent at the agreed rate.
13. Besides above, after addition of proviso to subsection (2) (ii) of section 15 ibid by Ordinance XIV of 2001, promulgated on 17th April, 2001, the ground of default in the payment of rent has been made sufficiently lenient and a tenant who has actually not paid rent, not to talk of mere technical default, cannot be ejected on the ground of default provided the period of non-payment does not exceed six months and he had not made default on any previous occasion and admits his liability on the first day of hearing and pays the rent within the period fixed by the Controller for such purpose.
14. In the present case, there is no question of non-payment of rent. The tenant was regularly depositing rent with the Controller in the name of the landlady well within time since more than two years before filing the ejectment case which was very much in her knowledge. In such circumstances and in the light of the above proviso, the petitioner cannot be ejected on the ground of alleged technical default. The Controller as well as the Appellate Authority clearly failed to decide the matter according to the law, particularly the above changed position of the law and, therefore, their orders are liable to be set aside. It was for these reasons that by a short order passed on 27-5-2008 the petition was allowed and the others of ejectment passed by the Controller as well as the Appellate Authority were set aside.