' This first rent appeal is directed against the impugned order, dated 6-r1-1979, passed by the learned 3rd Rent Controller, Karachi, dismissing ejectment application filed on the ground of default in the payment of rent. After hearing the learned Advocates appearing for both the parties, on 6-11-1983, by a short order appeal was dismissed with no order as to costs for reasons to be recorded later, which follow now.
2. Briefly stated the relevant facts are that appellant Mst. Zohra Khatoon (hereinafter to be referred as landlady) file ejectment application against respondent Muhammad Ahmed (hereinafter to be referred as tenant) on the ground that tenant had defaulted in the payment of rent for five months from September 1975 to January, 1976. Tenement in question is a residential accommodation situate in building known as Kassim Building of Keshavji Valijr Street, Ranchore Line, Karachi. Agreed rate of rent is Rs, 37.50. Tenant filed his written statement before the learned Rent Controller and denied the allegation of default. Plea is taken in the written statement that Muhammad Ahmed Rent Controller of the landlady has been collecting rent periodically and secondly that the landlady used to stop accepting the rent with the intention of having it enhanced. About the period of default mentioned in the application, tenant has explained in his written statement that he and his wife intended to go to India in the month of October, 1975 hence he offered the rent for two months to the Rent Controller who did not accept and, therefore, he sent the rent for September and advance rent for October, 1975 by money order to the landlady and then he left for India. In his absence the landlady did not accept the money order and son of tenant approached the landlady to accept the rent which she declined. When the tenant returned from India, he approached the landlady but she was not prepared to accept the rent, hence he sent money order on 12-1-1976 offering rent for five months and also sent her a letter by registered post A/D but of no avail.
Consequently, the tenant deposited the rent in the Court of Rent Controller through Miscellaneous Rent Case No, 495/76. Documents were also produced in support of the plea taken by the tenant in his written statement.
3. In the evidence the landlady examined her attorney Muhammad Ahmed son of Muhammad Yousuf, who produced power-of-Attorney Exh. A/2 and tenancy agreement Exh. A/3. This witness further testified that the tenant committed default and refused to pay rent for the period mentioned above. He further stated that he used to go to the house of the tenant where tenant never used to be present and his children always avoided to pay the rent. He admitted having received a letter by registered post A/D from the tenant. He further stated that he did not reply because he had already filed this case. On the other hand, the tenant Muhammad Ahmed son of Ellahi Bux examined himself before the Rent Controller and reiterated the facts as are stated in the written statement. He further stated that in the past he sent rent through money order which was accepted by the landlady. He produced such receipt Exh. 0/2. He further produced four receipts issued by the landlady Exhs. 0/3 to 0/6, which show that the rent had been accepted periodically.
Exh. 0/4 shows rent for two months for March and April, 1974 accepted on 8-4-1974. Exh. 0/5 shows rent accepted on 19-1-1975 for five months from October, 1974 to February, 1975 Exh. 0/6 'shows rent accepted on 5-8-1975 for three months from June to August, 1975. Tenant has also produced accepted money order coupons Exhs. 0/7 to 0/11 alongwith receipts. Exh. 0/7 shows that rent was sent to the landlady for two months. Exh. 0/8 is money order coupon dated 4-12-1974 showing rent sent for three months. There is endorsement on this coupon that landlady did not accept rent for two months before, hence rent for three months is being sent. Exh. 0/9 shows rent sent for four months. Exh. 0/10 shows rent sent for two months. Exh. 0/11 shows rent sent for five months. There is endorsement in this coupon that the tenant attempted to pay the rent on 11-1-1976 at the residence of landlady but she declined to accept the same, hence rent for five months is being tendered. Exh.
0/12 is letter from the tenant to the landlady stating factual position and refusal of rent by the landlady. The tenant has also produced photostat copy of Visa for India issued on 9-9-1975.
4. Tenant has examined his son Muhammad Ejaz, who has deposed that after the departure of his father to India he went to the house of the landlady to pay the rent but she refused to accept. He once again tried to pay the rent but the landlady refused on the ground that she did not have printed receipts.
5. Tenant has also examined Anwar Hussain, Inspector of Post Office, Town, Sub-Division, Karachi.
He deposed before the Rent Controller that due to mob attack on Eidgah Post Office on 11-4-1977, the whole record was burnt, hence the relevant record pertaining to postal receipts Exh. 0/6 etc. Was not available. He further stated that Post Office normally retains record for a period of two years only.
6. The learned counsel for the respondent pointed out to me that the agreement of tenancy produced by the landlady was executed on 17-7-1969 and this agreement was operative for 11 months from the date of execution. After expiry of the period mentioned in the agreement, the tenant has become statutory tenant and under the provisions of law he is allowed to pay due rent after 60 days. It appears from the record that it is undisputed position that rent has been paid upto August, 1974. In the absence of agreement by virtue of the fact the tenant is statutory tenant and he is liable to pay rent for September which became due on 15.11-1975 Rent of October, became due for payment on 15-12-1975. Rent for November became due on 15- -1976. Rent for December became due on 15-2-1976 and rent for January became due on 15-3-1976. Landlady has filed ejectment application on 10-1-1976 and by that time rent for two months i,e, only for September and October, 1975 was due. Demand for rent for the other three months i,e, November, December and January was pre-mature. It is also pointed out by the learned counsel for the respondent that under the said agreement there is undisputed clause in which it is stated that the landlady has retained security of rent for three months with her and that the tenant is entitled to get back the same on the vacation of the premises. It is urged by the learned counsel for the respondent that this amount can be adjusted against the arrears of two months which was technical default in nature. It was further argued that keeping in view the circumstances as stated above it would appear that the tenant never had the intention of committing wilful default. On the other hand, the tenant was always eager to make the payment but the landlady refused to accept the rent in order to create a ground for the ejectment of tenant. The tenant has produced documentary evidence in support of this contention. Plea of tenant that the landlady used to accept rent periodically also has some force which is evident in the rent receipts produced by the tenant and this fact is beyond dispute because it is not non-contended on behalf of the landlady that the receipts produced by the tenant are fake. Such plea is taken by the tenant in his written statement also. Reliance is placed by the learned counsel for the respondent on the cases of Muhammad Yousuf v. Abdullah (1) and Amir Ali v. Mrs. Alima Ahmed (2).
7. For the facts and reasons aforementioned I am of the view that when the application for ejectment was filed only rent for two months was due and the default was not deliberate or intentional on the part of the tenant. Security was also available with the landlady and the tenant made sincere efforts to A make the payment of rent not only in rime but in advance before his intended departure for India. In the circumstances, impugned order of the learned Rent Controller dismissing ejectment application is hereby maintained and the appeal is dismissed with no order as to costs.
(1) PLD 1980 SC 298 (2) PLD 1981 Kar. 150