' This appeal is against the order of the learned Rent Controller, Tando Allahyar, dated, 19-8-1980, whereby the appellant was ordered to deliver the vacant possession of the shop within 30 days of the said order.
' The facts are that Haji Muhammad Ibrahim, the respondent in this appeal is the landlord and the appellant Alam Ali is the tenant in respect of shop No,1, known as Madina Pan House, Market Road, Tando Allahyar at the rate of Rs,250 per month, There was an oral agreement between the landlord/respondent and tenant/appellant according to which the rent was to be paid before 10th of every calendar month. The appellant was a difficult tenant and that the appellant paid rent for the month of May 1979 and such receipt was issued to him. The appellant did not pay the rent for the months from June to December, 1979 and January, February 1980 in spite of repeated demands and that he became defaulter towards payment of rent for 9 months and 18 days and that he was in arrears of rent of Rs,2,250, The rent application was, therefore filed by the respondent/landlord on 1-4-1980. In the written statement filed by the appellant/tenant he has made averment to the effect that he was a tenant of the shop in question at Rs,250 per month. According to the agreement, which was an oral agreement, the rent was due to be paid on 20th of every calendar month. He paid the rent regularly. The tenant/appellant further states that he did not commit any default but the respondent/landlord did not issue any receipt for the months of alleged default in question and the respondent deliberately avoided receiving the rent offered to him. In June, 1979 the respondent/landlord demanded enhanced rent but he showed his inability to increase the rent on account of his daily meagre income. The rent was offered for the month of June 1979 but the same was refused by the respondent/landlord. Again in the month of July 1979 the tenant/ appellant offered the rents for the months of June and July 1979 but the respondent/landlord refused to accept the same. Therefore, the tenant/appellant sent the rents of June and July 1979 through other persons but the respondent/landlord refused and hence he sent a money order being No,4687, dated 19-8-1979 for the months of June and July 1979. The respondent/landlord, however, refused this money order. The appellant/tenant then sent another money order dated 9- 9-1979 and this was also refused by the respondent/landlord. Thereafter, he paid the rents directly to the learned' Rent Controller who allowed him to deposit the monthly rent and since then he was regularly depositing the rent in the Court of Rent Controller hence there is no default on the part of the appellant/tenant.
3. The evidence of the parties is of Haji Muhammad Ibrahim, the landlord, by way of affidavit and who is also cross-examined. He says that monthly rent was to be paid by 10th of each calendar month and that he never demanded enhanced rent from the tenant/appellant. He denied that the tenant sent the rent through some persons to him which he refused. However, he admits that the appellant/tenant has sent rents for the month of June and July 1979 by money order but he had refused because the appellant/tenant was already defaulter. On the other hand, the affidavit of Alam Ali, the tenant/appellant is on the record in which he states that the monthly rent was due to be paid on 20th of each month. That in the month of June 1979 he offered the rent to the respondent/landlord in presence of one Sardar but the respondent/landlord demanded Rs,300 and therefore, he refused. Then again in the month of July 1979 he offered the rent which was also refused by the landlord. The rent was then sent through money order for two months of June and July 1979 which was also refused by the respondent/landlord. Then again rents of June, July and August were sent by money order which were also refused. Thereafter, the appellant/ tenant took permission of depositing the rents in Court from the learned Rent Controller. There is also affidavit in evidence of one Sardar to the effect that in the month of July 1979 the rent was offered to the respondent/landlord in his presence who refused to accept the same as he demanded Rs,300 per month instead of Rs,250.
4. Mr.Yousuf Khatri, Advocate argued the matter on behalf of the appellant/tenant and Mr.Muhammad Sharif, Advocate argued the matter on behalf of the respondent.
5. The learned Rent Controller has obviously disbelieved the tendering of rent for the month of June, 1979 in presence of Sardar and also has disbelieved that the respondent demanded Rs,300 per month and then the matter is simplified to tendering of rent by money order for the months of June, and July, 1979, on 19-8-1979 vide coupon No,4687, The tenancy is oral and there is no written agreement between the parties, therefore, the period of 60 days would be computed from the date namely 10th June, 1979 to 10th August, 1979. The money order was sent on 19th August therefore, default is committed for nine days. It is to be noted that the second money order No,376 is dated 9- 9-1979, This suggests that the tenant/appellant has become cognizant that he was to dispatch the money order before 10th of each month, Therefore, technically the default is there. I am referred to a Supreme Court Authority reported in 1981 SCM R 18, relevant portion of which is reproduced as follows:- "After hearing Mr.A.K. Dogar at some length and examining the provisions of section 13 of the Rent Restriction Ordinance, we have no hesitation in reiterating that clause (1) of subsection (2) of section 13 of the Ordinance comprises of two parts, dealing with two different and distinct situations.
' In the first part it stipulates a situation where a time is fixed in the agreement of tenancy for the payment of rent, and in such a case the phrase "rent due by him" means the rent which has become due according to the terms of the tenancy: and if it is not paid within 15 days after the expiry of the time fixed in the agreement then the tenant becomes liable to ejectment. In other words, the intention of the law clearly is to preserve the sanctity of the mutual contract as to the time agreed upon for the payment of rent, which becomes due on the date stipulated in the agreement. If the agreement stipulates the payment of advance rent by a certain date, then rent becomes due on that day, and the law allows a period of 15 days for its payment after the expiry of the specified date, which is in the nature of a grace period for the benefit of tenants.
' The second part of the clause deals with a situation where there is no agreement between the parties as to the date or time by which the rent is to be paid; and in such a case the law allows the tenant a period of 60 days from the period for which the rent is payable. We are unable to accept the contention that the second part of the clause also governs the first part as such a proposition would amount to negating the first part of the clause, which is expressed in clear and unambiguous language.
' As a result, we find ourselves in agreement with the view taken by the High Court that in terms of the agreement between the parties the rent for the month of July had become due on the 1st of July, and for the month of August on the 1st of August, 1976 and had to be paid by the 15th of the month concerned. As the tenant had clearly failed to pay the rent due from him within the time allowed by law, he was rightly found to be in default, liable to be ejected on that ground."
6. Mr.Khatri the learned counsel for the appellant/tenant has attacked the impugned order on the assumption that the agreement was for the payment of rent in advance. The advance rent is void according to section 23 of the Contract. From the averments of the parties in this rent appeal I do not find that there was any stipulation as regards the advance rent. According to the pleadings of both the parties the payment of rent was due whether on 10th or 20th of each month. This was the agreement between the parties and as such there was no question of advance rent being paid in the instant case. The above authority cited by me amply illustrates it. .7.n the pleadings of the parties there is no contemplation of the advance rent payable by the tenant/appellant. The rent was due on 10th of every calendar month and according to the tenant/appellant it was 20th of every month. The second money order coupon is dated 9-9-1979 which indicates that the rent was due on 10th of every calendar month. Therefore, the default has occurred. In view of the above authority I do not find it necessary to refer to host of authorities as suggested by Mr. Khatri, advocate for the appellant/tenant. The recent law is cited above.
7.In the result I dismiss this appeal. However, 30 days' time is given to the appellant to hand over the vacant possession of the premises in question to the respondent/landlord. Parties to bear their own costs.