1. p>JUDGMENT ' This is a second appeal from the order of the VIth Additional District Judge, Karachi, dated 7th September, 1980 reversing the decision of the Rent Controller VI, Karachi, contained in his order, dated 19th December,1978, whereby the ejectment application filed by the appellant was allowed and the respondent was directed to hand over vacant possession of the demised premises within 30 days of the order.
2. ' After hearing the arguments of the learned counsel for the parties, the appeal was accepted by short order, dated 12th March,1984, for reasons to be recorded separately, allowing three months' time to the respondent for vacating the premises in their possession subject to regular payment of rent during the intervening period and in the event of default in this behalf the respondents were ordered to be ejected without further notice. Following are the reasons in support of the above short order.
3. ' Briefly stated the facts of the case are that the appellant/landlord after purchasing the premises in dispute viz. Tenement No,1 of the building No,W.0.1/23 Wadhomal Odharam Quarter, Karachi, served a notice, dated 24th May,1976 on the respondents calling upon them to pay the rent to her.
4. As the respondents committed default in payment of the rent for the period from February,1976 to June 1976, the appellant brought an ejectment application, seeking their ejectment on the ground of the default. The ejectment application was contested by the respondents who denied the allegation of the default. They took the plea that on receipt of the notice from the appellant on 25th May,1976, they wrote a letter to the previous landlord enquiring about the transfer of the premises in favour of the appellant and after they received a reply from the said landlord on 6th June,1976, the rent for four months was sent to the appellant on 9th June,1976 who accepted the same. After considering the evidence led by the parties, the learned Rent Controller allowed the ejectment application with the result mentioned above.
5. ' The appellant's case is that as required by S.13-A of the west Pakistan Urban Rent Restriction Ordinance, 1959 she intimated the respondents about the purchase of the property in dispute by her by notice, dated 24th May,1976. It is admitted by the respondents that they received the said notice on 25th May,1976 and paid the rent on 9th June,1976. Thus, it was submitted on their behalf that the rent having been paid by them within 30 days of the receipt of the notice, they have committed no default and, therefore, they are not liable to eviction.
6. ' In proof of their assertion, the respondents have examined Muhammad Sarwar, their Manager. No doubt he has stated in his evidence that on 9th June,1976 the rent for the period from February,1976 to May 1976 was sent to the appellant by a cheque accompanied by a covering letter, a copy whereof he was produced as Exh.11. However, in cross-examination he has frankly admitted the he does not know the name of the person who signed the copy of the covering letter in token of having received the same alongwith the cheque. He has also admitted that he has no knowledge if the cheque in question was got cashed by the appellant. It is further admitted by him that although balance sheet of the respondents' Company was received from the Bank, yet he did not care to check up if the cheque in question had been cashed. It is also in his evidence that the second cheque of the rent for the months of June and July, 1976 was sent to the appellant on 18th August, 1976 with a covering letter, copy of which he has produced as Exh.12, but the same was not accepted by the appellant and was returned to the respondents.
7. ' From the above admissions it is clear that the respondents have failed to prove the payment of rent to the appellant. If the first cheque had really been sent by them at the address given in the notice served by the appellant, they should have ensured that it was delivered in the hands of the right person. It should have been handed only to the person authorised to receive the same. In case it was delivered to some an unauthorised person, still it was incumbent upon them to have proved the name and signature of such person. But as stated above, Muhammad Sarwar, the Manager of the respondents has pleaded ignorance not only as to who had actually received the cheque but also about the identity of the persons who had signed the copy of the covering letter.
8. On the basis of such evidence it is difficult to hold that the first cheque was actually delivered to the appellant and he had accepted the same. The statement of the respondents' manager about the first cheque also stands falsified by his own admission that the second cheque sent to the appellant was refused by him. Had he accepted the first cheque, there was no reason why he should refuse the second cheque. His refusal to accept the second cheque appears to be in consonance with the appellant's plea that the rent was never paid to him. Thus, apart from the evidence led by the appellant, it is established from the evidence of the respondents' own Manager that they have failed to prove the payment of rent to the appellant. Consequently they have committed default rendering themselves liable for eviction.
9. ' The learned counsel for the respondents made an alternative argument that the ejectment application filed by the appellant was premature. Elaborating his view point he submitted that the respondents on receipt it the notice from the appellant wrote a letter to the previous landlord ascertaining from him about the transfer of the demised property to the appellant. According to the learned counsel since the respondents got the reply from the previous owner on 6th June,1967, the period of 30 days within which they were required to pay the rent was to start from the said date. The argument is obviously untenable. It is clear from section 13-A of the Rent Ordinance, 1959, that the tenant shall not be deemed to have defaulted in payment of rent if the rent due from him is paid within 30 days from the date when the intimation should in the normal course have reached him. In the instant case it is admitted on behalf of the respondents that the notice given by the appellant under section 13-A was received by them on 25th May,1976 and as such the 30 days period was to be computed from that date and not from the date on which the respondents had received the reply from the previous owner.
10. ' It may be observed that even if the respondents had waited for the reply from the previous owner, the same having been received by them admittedly on 6th June,1976, they would have been 'n time if they cared to pay the rent, as the last date for the payment was up to 24th June,1976 on which the 30 days period prescribed under section 13-A was to expire. According to the respondents' Manager the first cheque of the rent was even sent to the appellant on 9th June,1977.
11. However, as stated above they have failed to prove as to whom the cheque was delivered. Perhaps after realizing that they are not going to succeed on the basis of the plea of payment of rent, the learned counsel for the respondents switched over to the argument that the ejectment application was premature as it was filed before expiry of 30 days from the date of the reply the respondents had received from the previous owner. This argument being without any merit has already been rejected as untenable.
12. ' In view of what has been stated above the appeal has been allowed.