ALI SAIN DINO METLO, J.--- After the Controller's and the Appellate Authority's refusal to eject the respondent No.3 from the rented premises viz. tenement No.36, situated on the ground floor of the building known as Shafquat House, Stretchen Road, Karachi, the petitioner seeks his ejectment by invoking constitutional jurisdiction of this Court.
2. Briefly, the facts are that on 24-12-1999, the petitioner filed a rent case, bearing No.1469 of 1999, for the ejectment of the respondent No.3, contending that he was his tenant in respect of tenement No.34, on a monthly rent of Rs.30, which he had not paid him for the last more than three years, despite repeated requests made by him as well as by his Rent Collector and the repeated promises made by him.
3. In his written statement, the respondent No.3 denied the allegation and contended that his father and after his death he was tenant in respect of tenement No.36, at a monthly rent of Rs.50 and not in respect of tenement No.34, at the monthly rent of Rs.30 as pleaded by the petitioner. According to him, the petitioner received rent upto December, 1998, but refused to receive it from January, 1999 and, therefore, the same was being deposited regularly with the Controller in MRC No.1994 of 1998. In support, he filed receipts issued by the, petitioner as well as by the Controller.
4. In his affidavit-in-evidence, the petitioner admitted that the respondent No.3 was tenant in respect of Tenement No.36, at the monthly rent of Rs.50, which he had received upto December, 1998. Explaining his wrong pleadings regarding the number of the tenement, the rate of the rent and the period of default, he contended that he had filed ejectment cases against most of his tenants, due to which he could not verify the facts properly regarding every tenant; He admitted that the respondent was depositing rent with the Controller, but denied that he or, his Rent Collector, who, according to him, was receiving the rent, had refused to receive rent from the respondent. However, he did not examine his Rent Collector, who was admittedly receiving the rent and according to the respondent's attorney had, refused to receive it from January, 1999.
5. The Controller, by his order dated 2-5-2000, dismissed the rent case, by holding that the respondent had not committed default in the payment of rent. The petitioner's appeal, bearing F.R.A. No.922 of 2001, re: Haji Abdul Ghani versus Kamran, was dismissed by the Additional District Judge-VII, Karachi South, on 21-2-2004, for the same reason.
6. It is not the case of the petitioner that the respondent had committed default in the payment of rent by not depositing rent regularly with the Controller. His case is that he was depositing the'rent with the Controller without his or his Rent Collector's refusal to receive it.
7. According to subsection (2) of section 10 of the Sindh Rented Premises Ordinance, 1979; the rent shall, as far as may be paid to the landlord, who shall acknowledge receipt thereof in writing's 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 subsections:--- "(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".
8. The use of words 'as far as 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 a landlord as for example, where he, is residing at a far-off 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, sit, 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. 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.
9. Refusal of landlord to receive rent directly is, not the only justification for adopting other modes of tendering it Avoidance is also a justification and one may infer avoidance from the conduct of a landlord.
10. In the present case, the fact that the petitioner had filed ejectment cases against most of his tenants without properly verifying facts and grounds regarding every tenant, showing his intense urge to get the building vacated, is sufficient to infer his avoidance to receive rent. Otherwise, there seems no reason for the respondent, who had been making payment of rent of many months in lump sum in advance, to deposit the same with the Controller.
11. Besides, after addition of proviso to subsection (2)(ii) of section 15 (ibid) by Ordinance XIV of 2001, the ground of default in the payment of rent has been made sufficiently lenient and a tenant, who has actually not paid or deposited the rent, not to talk of him who has been regularly depositing rent, with the Controller, 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.
12. As mentioned above, in the present case, the respondent had been paying rent much in advance and there is no allegation that he had committed default in the payment of rent on any previous occasion. In such circumstances and in, the light of the, above proviso, the respondent cannot be, ejected merely on account of depositing rent with the Controller instead of paying it directly to the petitioner. The arguments of the learned counsel for the petitioner, based upon the precedent reported in 2001 SCM R 1140, that the respondent' was liable to be ejected because he had deposited the rent with the Controller without first sending the same by money order cannot be accepted in view of the above changed position of the law. It was for these reasons that, by a short order passed on 5-5-2008, the petition was dismissed with no order as to cost.