' This appeal is directed against the judgment of 2nd Additional District Judge, Karachi, dated 18th October, 1981.
2. Briefly stated the facts of the case are: that respondent Iftikhar Bano is the landlord and appellant Khawaja Qasimuddin is the tenant in respect of Flat No, 32 of the building situating on 6th and 7/15 Firdoos Colony, Karachi-18. The respondent/landlord sought ejectment of the appellant/tenant from the said premises on the ground of default in payment of rent for the months of June, July, August and September, 1974. The defence of the tenant was bare denial of the allegations. He however added that as the respondent refused to accept the rent, it was first sent by money order but as that too was refused, it was deposited in the Court.
3. The learned Rent Controller after considering the evidence led by both the parties found that the tenant has committed no default vide his order, dated 2-2-1978: Dissatisfied with this order, the landlord preferred appeal which was, however accepted by the Additional District Judge directing the appellant to hand over vacant possession within 60 days of the order. As stated above the order of the learned District Judge has been challenged in this second appeal.
4. I have heard the learned counsel for the parties and with their assistance I have gone through the evidence and other written material produced by the parties.
5. It appears that controversy exists between the parties even on the question of rate of rent.
According to the respondent rate of rent is Rs,125 per month (Rs,75 rent plus Rs,50 other charges), whereas the stand taken by appellant is that the monthly rent is Rs,100 (Rs,75 rent plus Rs,25 other charges). It is not denied by the landlord that the tenant had paid the rent for the month of May 1974. According to the tenant the rent for the month of May was paid at the rate of Rs,100. This has not been controverted by the landlord. To support his case further, the tenant has produced two receipts (at pages 29 and 31 of the Rent Controller's record) indicating that for the month of May, 1974, amount of Rs,75 was paid as rent and that for Rs,25 as other charges. As against this evidence, on behalf of the landlord excepting the word of her son and special attorney there is no evidence to prove that earlier rate of rent was revised from Rs,100 to Rs,125 per month. Accordingly I would hold that the rate of monthly rent is Rs,100 inclusive of other charges and not Rs,125 as has been pleaded by the landlord.
6. Coming to the question of default, it would be logical to hold that as the appellant/tenant showed his reluctance to pay the rent at enhanced rate, the landlord did not accept the rent for the month of June. The appellant has further stated that on the landlord's refusal to accept the rent, he sent it by money order, In support of this assertion he has produced money order coupon.
The money order coupon produced by the tenant is, dated 11-7-1974 which shows that he lost no time in sending the rent to the landlord after his refusal to accept the same.
' It further appears from the evidence of the appellant that even money order was refused by the landlord. Therefore, as the evidence of the appellant shows, he started depositing the rent in Court.
He has produced one receipt showing that Rs,200 were deposited by him on 24-7-1974. Since the monthly rent is Rs,100 the amount deposited by him obviously covered the rent for two months: namely, June and July 1974. As regards the months of August and September the learned counsel for the appellant has referred to the report of the Nazir (at page 45 of the Rent Controller's record).
On perusal of this document it appears that the landlord had moved the learned Rent Controller for striking off the defence of the appellant/tenant on the ground of default in depositing the rent in compliance with the tentative order passed by the Rent Controller. On this motion the learned Rent Controller called for a report of the Nazir. The report of the Nazir which appears on the back of the landlord's application, gives details of various payments made by the tenant. It is clear from the report that apart from other payments, an amount of Rs,200 was deposited two times, first on 24- 7-1974 under receipt No, 3329 which has been produced by the appellant as referred to above and second time on 22-8-1974 under receipt No, 6679, Since the first payment as stated above, covers the rent for the months of June and July 1974, the second payment obviously relates to the rent for months of August and September, 1974, In this way the rent for all the four months in dispute was obviously paid within time and question of default on the part of the tenant, therefore, did not arise.
Even the application moved for striking off the defence of the appellant was dismissed. In the order of the dismissal, the learned Rent Controller has noted that even the attorney of the respondent/landlord agreed that there was no default in depositing of the rent.
7. When the learned counsel for the respondent was confronted with the above position he made a feeble attempt to point out that no permission was obtained by the appellant from the learned Rent Controller for depositing the rent in Court and as such the rent deposited being unauthorized cannot be taken into consideration. Suffice it to say that since the rent was accepted for being deposited in the Court the presumption would be that the acceptance of the rent had the blessing of the Presiding Officer of the Court namely the Rent Controller. In any case the burden %via on the respondent/landlord to prove that deposits of rent made by the tenant were unauthorized. There is however no such evidence on the record.
In view of the above discussion it is difficult to sustain the judgment of the first appellate Court which is obviously based on erroneous view. Accordingly the appeal was accepted by short order, dated 23-9-1984, with no order as to costs.