1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has been filed against the order dated 17-5-1982 of XV Senior Civil Judge and Rent Controller, Karachi whereby he had ordered the eviction of appellant.
2. ' The appellant is a tenant of residential flat on the first floor in Building No, 187/C, Block 2, P.E.C.H.S., Karachi and respondent is a landlady. It is mentioned in the Rent Application that appellant committed default in payment of rent from May, 1978 to November, 1978 for 7 months amounting to RS,1,295. The Rent Controller came to the conclusion that appellant has committed default in payment of rent for only two months i.e, May and June, 1978.
3. ' Mr. Makhdoom Ali appearing for the appellant submitted that rent for the month of May was tendered by appellant by money order and respondent refused to accept, therefore, he deposited the rent on 18th July, 1978 in a miscellaneous rent application. He has also argued that appellant being statutory tenant is entitled to have 60 days period for the payment of rent therefore even otherwise appellant has not committed default as before that period expired he deposited the rent in Court. The learned counsel has referred to the cases reported in PLD 1985 SC 148, P LD 1981 Kar.
4. 354 and 1983 CLC 346.
5. ' Mr. Ahmadullah Farooqui, learned counsel appearing for the respondent contended that postman was not examined therefore appellant has not proved that he actually tendered the rent. He has referred to the case reported in 1983 CLC 308. He has also relied on PLD 1983 Kar.
6. 455.
7. ' The rent application was filed on 3-12-1978 in which 7 months default was shown. The admitted position is that on 18th July, 1978 appellant deposited the rent of May and June, 1978 in the Miscellaneous Rent Application. Appellant Mst. Shahnaz Begum in her affidavit-in evidence stated that attorney of the respondent refused to receive the rent for the month of May, 1978 therefore she sent the amount of the rent by money order on 22-5-1978, she has produced a coupon as Exh.1/A.
8. She further baited that again she sent the rent for the month of May and June, 1978 by money order on 7-6-1978 but attorney again refused to accept the money order, therefore, she filed Miscellaneous Rent Application No, 318 of 1978 in the month of July, 1978 in the Court of Rent Controller, Karachi and she started depositing the rent in that Court. The facts have not been denied by the attorney of the respondent but he said that he never refused to receive the money order. There is no written agreement available between the parties as such in my view the appellant being statutory tenant is entitled to the benefit of 60 days period and he could not be termed as a defaulter. A Not only this but from the circumstances it is clear that appellant immediately in the month of July tendered rent with the Rent Controller in Rent Miscellaneous Application. It is very necessary for the landlord to show that tenant is not only defaulter but willful defaulter. In this case though Postman has not been examined but original Postal coupons have been produced which has not been challenged by attorney of the respondent.
9. ' In my view the appellant has not committed any default in payment of rent. I accept the appeal and set aside the order of the Rent Controller.