1. ' This appeal is filed against the impugned order, dated 5-8-1980 of learned II Rent Controller, Karachi, whereby ejectment has been granted on the ground of default.
2. ' Briefly stated the relevant facts are that the appellant is landlord and respondent is tenant and both these parties will be referred to as such hereinafter. The tenement in question is Shop No, 5 in building on Plot No, 877-C, Liaquatabad, Karachi at monthly rental of Rs,60. Landlord filed ejectment application under section 13 of the West Pakistan Urban Rent Restriction to Ordnance, 1959 on 26- 9-1978 on the ground that tenant defaulted in payment of rent since December,, 1977, which comes to about nine months. Tenant contested' proceedings before the learned Rent Controller and in the written statement took up the plea that there was no default but the landlord avoided to collect the rent and pressed for enhanced rent but when tenant disagreed the landlord refused to accept the rent. Attempt was made to send rent of December, 1977 and January, 1978 through Money Order but landlord refused and thereafter tenant started depositing rent in Misc. Rent Case No, 1874/1978 in the same Court. One issue with regard to default as alleged was framed and landlord examined himself. He asserted that he was not paid rent since December, 1977 and denied having received any Money Order or notice of the case in which tenant deposited rent in the Court. He also denied having refused to accept the rent for the reason that he wanted enhanced rent. On the other hand tenant examined himself and one other witness Rehmat Elahi is on the point that in his presence tenant attempted to pay the rent to the landlord who refused to receive the same and demanded enhanced rent.
3. 2.Contention raised by the learned counsel for the landlord before me is that evidence on the record is not properly appreciated by the Rent Controller and the default stands proved. I find that this contention is not sustainable for the reason that the learned Rent Controller has A applied his mind judicially and has considered evidence brought on the record with care and caution and has come to a finding to which exception cannot be taken. There is no dispute about the fact that there is no written agreement between the parties with regard to the terms of tenancy as such under section 13(2) (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959, the tenant is allowed under law to pay rent within 60 days when the rent is payable if there is no agreement between the parties. This is the correct legal position and nobody can have cavil with it. Landlord has claimed arrears of the rent from December, 1977 to September, 1978. In his evidence before the Rent Controller he has denied having refused to accept the rent by Money Order. He also denied having insisted on increasing the rent. Landlord did not examine any witness and did not produce any other evidence in support of his claim. On the other hand tenant stated in his evidence that he has been paying the rent regularly to the landlord, who collected the rent for the last time for October, 1977 on 5-11-1977 and for November, 1977 on 4-12-1979. (There appears to be some mistake in the last date and it should be 4-1-1978 or some other date in the month of January, 1978 instead of 4- 11-1979 but unfortunately it is so stated specifically in the affidavit of tenant Abdul Kareem in original which is duly signed by him and his Advocate and Commissioner for taking affidavits). It is further stated by the tenant in his evidence that landlord demanded enhanced rent and refused to accept the rent, and on two such occasions landlord refused in presence of Haji Rehmat Ellahi.
4. Therefore the tenant sent the rent by money order on 8-3-1978 but the landlord did not accept it.
5. He has produced Money Order receipt 2369, dated 8-3-1978 and returned Money Order coupons.
6. Record shows photo stat acknowledgement portions of two Money Order coupons sent to the landlord with endorsement therein that rent for December, 1977 and January, 1978 was being tendered. The tenant further claimed that the landlord did not accept the rent sent by Money Order so there was no other way out except to file a Misc. Rent Case, which he did and after obtaining permission from the learned Rent Controller he deposited the rent in the Court and he has sent such intimation in writing by way of notice of the Advocate to the landlord by registered, post A.D. which was refused by the landlord. The envelope with such endorsement is on the record and also notice, dated 24-4-1978 sent by Mr. Qutubuddin Ahmad, Advocate. This notice shows that landlord has been informed that rent of Rs, 240 for December, 1977 to March, 1978 has been deposited by the tenant in Misc. Rent Case No, 1874 of 1978 in the Court of II Rent Controller, Karachi. On the point of refusal by the landlord, tenant is supported by Haji Rehmat Ali, who has stated in his affidavit that in February, 1978 he offered Rs, 120 to the landlord but he did not accept the rent and again in March, 1978 landlord refused to accept Rs, 180 from the tenant and demanded rent at the rate of Rs, 150 P.M. Rehmat Ellahi is a shopkeeper in the same locality. There is not much in the cross examination of this witness to suggest that he is a false witness. Evidence produced by the tenant is more than sufficient to show that all genuine attempts were made to pay the rent but the landlord refused.
3. Rent for December, 1977 becomes due on 1st January, 1978 and can be paid on 1st March, 1978 is 60 days are allowed as contemplated under Of law because there is no written -agreement of tenancy operative between the parties. Tenant sent rent by Money Order for December, 1977 on 8th March, 1978, hence it was late by about seven days when it was payable on 1st March, 1978. Money Order coupon in the record shows that rent was sent on 8th March, 1978. Circumstances stated above clearly show that tenant was earnestly trying to offer the rent to the landlord, who kept on avoiding the acceptance of payment hence the tenant was compelled to send the Money Order.
7. There is further ample evidence to support the fact that tenant thereafter deposited rent in the Court and informed the landlord to collect it. In these circumstances default for seven days can very well be treated as technical default and the Rent Controller is quite competent under the law to exercise his discretion judiciously in favour of the tenant as he has done.
4. In the impugned order reliance is placed on PLD 1979 Lah. 110 and PLD 1976 Lah.
8. 1052. Mr. Jawaid Raza, Advocate for the-appellant has rightly pointed out that the first mentioned decision is not applicable to the facts of this case. Perhaps this has happened due to inadvertence.
9. In any case the second decision mentioned in the impugned order is very well applicable for the reason that it holds that if default is riot deliberate, it is discretionary with the Controller to pass order of ejectment or not. On the other hand Mr. Qutubuddin Ahmad, Advocate for the respondent has cited before me the decision in the case of Muhammad Yousuf v. Abdul Lateef and two others 1982 CLC 398 in which delay of four days was condoned as technical default. Another decision cited is the case of Dawood v. Abdul Ghani 1983 CLC 339 in which default for payment of rent in respect of one month was considered as not deliberate and technical since it was only one default from the date of inception of tenancy. In the instant case evidence clearly shows that at every step tenant tried his level best to offer the rent to the landlord who avoided and refused and the tenant sent the rent through Money Order and then deposited the same in the Court by way of notice of Advocate to the landlord but the landlord did not accept the notice. The learned Rent Controller has held that after benefit is given to the tenant to pay the rent within 60 days because there was no agreement between the parties then rent for the J0 month of December was sent by Money Order late by about seven days, which was a technical default and was not a deliberate default.
10. The learned Rent Controller has rightly exercised discretion in favour of the tenant by refusing to grant ejectment on this ground. This is the first technical default since the inception of tenancy existing for about four years before the filing of ejectment application as is stated in paragraph one thereof.
11. 5.The learned counsel for the appellant also cited some other decisions which are not applicable to the facts of this case. In the result, I find no reason to disagree to the learned Rent Controller and the impugned order is hereby upheld and the appeal is dismissed with no order as to costs.