' The appellants herein are the tenants of the respondents in respect of the office premises No, 294- C of Abdul Latif Cloth Market, formerly known as Gordhandas Cloth Market Bunder Road, Karachi.
The respondent not having received rent of the above premises for several months submitted an application on 17-2-1971 before a learned Rent Controller, Karachi, for the eviction of the appellants.
In that application, besides the ground of default, the respondents alleged that the appellants had transferred and/or sublet the premises without their consent that the appellants had converted the premises from Commercial purposes to residential purposes, that they had caused damage to the property and further were causing great inconvenience to the respondents and other tenants of the Market.
2. The appellants in their written statement, denied the various allegations contained in the application of the respondents, averred that the rent of the premises was Rs, 22.50 per month, and not Rs, 22.72, as claimed by the respondents, and further stated that they have been depositing the rent regularly in the Court of Civil Judge and Rent Controller and no amount of rent was due from or outstanding against them. A statement of accounts was also filed in Court by the appellants which showed that rent to the period from 1-7-1965 up to 31-3-1966 was paid to the respondents against a receipt and that rent for the subsequent period was lying deposited in the Nazarat of the Court.
3. The learned Rent Controller took the view that there was no wilful default on the part of the appellants. In coming to this conclusion he took into consideration the statement made in the evidence of a partner of the appellants that the practice of the landlords was to collect rent for many months together and sometimes the rent was recovered at a time of one year to 1 years ; that the appellants had sent rent to the respondents through two money orders, which had been refused by the respondents, and that after such refusal the appellants had been depositing the rent in Court. The learned Rent Controller also found that there was no substance in the other grounds for eviction alleged by the respondents. He accordingly rejected their application.
4. The respondents herein appealed against the decision of the learned Rent Controller. The appeal was heard by a learned Additional District Judge, who concurred in the findings of the Rent Controller in regard to the allegations of subletting, conversion of the building and causing nuisance, but held that the appellants herein were persistent defaulters and accordingly directed their ejectment. The learned Additional District Judge took the view that sending of the two money orders by the appellants was not a valid tender of rent since the money orders were not sent on the correct or complete address of the respondents and hence there was no likelihood of the money having reached the respondents. He, therefore, came to the conclusion that in the first payment made by the appellants on 31-3-1966, there was a delay of nine months and so also in the first deposit made by them in Court on 1-1-1967, being the rent due for the period from 1-4-1966 to 31-3- 1967, there was delay of nine months, for which delay the appellants had given no satisfactory explanation.
5. Aggrieved by the decision of the learned Additional District Judge, the appellants have filed this second appeal. Mr. Abrar Hassan, the learned counsel for the appellants, has raised a two-fold contention before me. His first contention is that no default has been committed by the appellants.
His second contention was that even if somehow he held that the appellants have committed default, the same should, in the circumstances of the case, be condoned and discretion exercised in their favour.
6. In support of his contention that no default had been committed by the appellants. Mr. Abrar Hassan submitted that there was a mutual oral understanding between the parties that as the rent for the premises in question was small it would be collected not monthly but in a lump sum after a year- or even a year and a half. For this he placed reliance on the oral testimony of Mohammad Siddik, a partner of the appellants, and also on the fact that the respondents had accepted the rent for the period from 1-7-1965 to 31-3-1966 in a lump sum, without any demur, and had passed a receipt therefor. The mere fact, however, that on one single occasion the respondents showed indulgence to the appellants in accepting rent in a lump sum for several months cannot be deemed to lead to the inference that there was any oral agreement or understanding between the parties that rent would be collected in a lump sum, varying the statutory acquirement that rent was required to be paid within sixty days of its becoming due. Mohammad Siddik admitted that the previous receipts for the premises were in his possession. He however, did not produce them to show whether they supported his contention. In the absence of any other evidence, we are left with a solitary instance wherein the respondents accepted rent for nine months together in a lump sum.
No doubt Mohammad Siddik has alleged in his evidence that the respondents used to collect the rent after one year and in certain case even after 1 years, but there is no evidence in support of his best words. In fact the appellants did not even take this plea in their witness statement nor was the Rent Collector of the respondents, who was the only witness examined on their behalf, even questioned on this point. Under the circumstances, the evidence of Mohammad Siddik on the point cannot be accepted. In Mohammad Ali Mullah v. Ziaul Islam (1), it has been held that where the tenant alleges modification of statutory obligation of payment of rent on the ground that the rent in lump sum in large amount, the burden of proving such modification lies heavily on the tenant and the mere fact that on certain occasions the landlord received rent at long intervals does not lead to the conclusion that it was in pursuance of an agreement not to receive rent at the end of every month. I am in respectful agreement with this statement of law.
7. ' It was next contended by Mr. Abrar Hassan that the delay being of (1) PLD 1973 Kat.. 56 a faw days only, the learned Rent Controller rightly condoned such delays and properly exercised discretion in favour of the tenants.
8. Leaving apart the payment for the period from 1-7-1965 to 31-3-1960, which was voluntarily received by the respondents and a proper stamped receipt therefor was issued by their Rent Collector there has been delay on three other occasions on the part of the appellants to pay rent.
9. The first money order, which was for a sum of Rs, 90 being the rent for the months of April to July, 1966, was sent on 19-7-1966. The rent for the month of April was due before 29-6-1966. The money order was thus sent 20 days late. The second money order, which likewise was for a sum of Rs, 90, being the rent for the months of August to November, 1966, was sent on 19-11-1966. The rent for the month of August, however, was due on 30-10-1966. It was thus again sent 20 days beyond the statutory period; Furthermore, the receipt of these two money orders has been denied by the Rent Collector on the ground that in the coupon which has been produced in Court of the first money order, no address of the respondents has been given and in the coupon of the second money order the address of the appellants is incomplete. In view of the denial of the Rent Collector to have received these two money orders, it would have been appropriate for the appellants to have summoned evidence of the postal authorities, but despite their failure so to do, I am inclined to the view that the two money order must have reached the respondents. It may be mentioned that in the two money order coupons produced in Court only the name of the payee is to be shown and the address is given in the portion of the money orders which remain with the postal authorities. If the appellants took the trouble of sending two money orders to the respondents, it is unlikely that they would deliberately write wrong, incorrect or incomplete address, especially as on being unsuccessful in remitting rent by money order, they deposited rent in Court. Furthermore, in the coupon of the second money order, not only the name of the appellants is shown but also the address "Gordhandas Market" is given, where admittedly the respondents have their office and their Rent Collector also admittedly sits. Since the respondents not only have their office in Gordhandas Market but are also the owners of the said Market, there should have been not much difficulty in the postal authorities locating .The respondents, even the exact number of their office was not recorded in the money orders. It may also be pointed out that in the coupon, which is a part of the first money order, there is above the date, 21-7-66, the word "refused", which according to a partner of the appellants, was written by the postal authorities. In Mohammad Sabi v. Abdul Malik (1) it was held, that the difference in address shown in the money-orders cannot be considered per se as sufficeint to prove that the money-orders were sent to a person other than the landlord, in particulars when on one of the remittances there was a note of refusal of the addressee to accept the remittance.
10. On the question of, default, it may also be pointed out that even one of the deposits made in Court, which was in respect of rent due for the months of April to March, 1968, was made on 13-7- 1967. The rent for the month of April was due before 29-6-1967 and was thus deposited 14 days after the statutory period. No explanation has been furnished by the appellants for the delays in sending the two money orders and depositing the rent for the month of April, 1967. The contention of the learned counsel for the appellants that the delays being of short duration were condoned by the learned Rent Controller, who rightly exercised discretion in favour of the appellants, cannot be accepted. It is true that delays in payment were of a comparatively short duration, but there were as many as three instances {{FOOT NOTE}}
(1) PLD 1967 Pesb, 96 {{FOOT NOTE}} ' of delays, for which the appellants have given no explanation. As observed in Muhammad All Mullah's case, the discharge of the statutory obligation by the tenant to pay rent is a condition of his protection and he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from doing so as would have prevented a reasonable man from discharging his obligations. In the instant case, as already pointed out, no such circumstances exist, and in fact no attempt has been made by the appellants to establish the existence of such circumstances. I am, therefore, of the opinion that the appellants were more or less .Persistent, defaulters and the learned Rent Controller erroneously exercised discretion in their favour. In fact he did not care to carefully examine the evidence on record to see on how many occasions the appellants had committed default, but took the view that in sending the two money orders and depositing rent, the appellants had fulfilled their statutory obligation, without caring to see whether the money orders were sent and the deposits in Court were made within the statutory period. It may be noted that under section 13 (2) (i) of the West Pakistan Urban Rent Restriction Ordinance, the Rent Controller is empowered to reject an eviction application only if he is not satisfied that the tenant has committed default. Once default has been established, then unless the tenant can show that the default was for reasons beyond his control or he can satisfactorily explain the delay in payment or tender of rent, the Rent Controller cannot properly reject the application and must allow the same.
11. Mr. Abrar Hassan finally relied upon the case of Samiullah v. Mahomed Saleem (1) and urged that the deposit by the appellants of all the due rent in Court before the filing of the rent application wiped out any earlier default that may have been committed by the appellants. The decision in that case, however, is of no assistance to the appellants and clearly cannot govern their case. In the reported case, the landlord, after serving a notice on the tenants under section 106 of the Transfer of Property Act, instituted a suit for his ejectment from the premises which were situated in a cantonment area. During the pendency of the suit the Cantonment Rent Restriction Act, 1963, was passed, which placed certain restrictions on the ejectment of tenants in cantonment areas. Its landlord in consequences of this Act, requested for permission to withdraw the suit, which was granted. On the same day, the landlord on agreement with the tenant and with the permission of the Court withdraws the arrears of rent which had been earlier deposited in Court by the tenant.
It was held that the landlord, having agreed to and accepted the rent, there was a tacit waiver of forfeiture of lease and "in effect affirmed the continuance of the lease, and thereby determined the option of taking advantage of the forfeiture to condition broken". That case, however, was governed by the provisions of the Transfer of Property Act, but under the West Pakistan Urban Rent Restriction Ordinance, there is no provision regarding waiver by landlord of forfeiture of lease, as held in Mahomed Younas v. Abdul Hamid (2). It may be pointed out that the same learned Judge of the Supreme Court, who had decided the case of Symiullah v. Mahomed Saleem, in the latter case of Haji Fida Hussain v. Mahomed Ibrahim (3) has held that tender of rent contemplated by the explanation to sub-section (2) (i) of section 13 of the West Pakistan Urban Rent Restriction Ordinance must be made within the period prescribed in clause (1) of the said subsection and the fact that the defaulting tenant had deposited rent with the Controller before the ejectment application was filed by the landlord is of no consequence. {{FOOT NOTE}}
(1) 1971 S.0 M R 725 (2) PLD 1975 Lab. 1326
(3) 1972 SCMR. 262 {{FOOT NOTE}}
12. For the reasons given above. I am of the opinion that there is no merit in this appeal and accordingly I would dismiss the same with costs. The appellants are directed to hand over vacant possession of the premises in question to the respondents within for months of the date of this order.