1. ' Phis appeal is directed against the order of eviction, dated 13-1-1982 passed by the Xth Senior Civil Judge/Rent Controller, Karachi against the appellant in respect of tenement on ground floor of a bungalow situated on Plot No, 173/W, Block No, 2, P.E.C.H.S. Ltd., Karachi whereby he was directed to vacate the same within three months.
2. ' The brief facts of the case are that the respondent is the owner of the aforesaid premises and the appellant is a tenant at the monthly rent of Rs,800. The respondent filed Application No, 3524 of 1877 against the appellant on the ground of default. It was averred in the application that the appellant sent three cheques, dated 4-7-1977, 4-8-1977 and 4-9-1977 towards rent for the months of June, July and August, respectively. Out of three cheques only one cheque was encashed and the other two cheques, dated 4-8-1977 and 4-9-1977 were dishonoured and as such the appellant became defaulter in the payment of rent for the months that is July, August and September, 1977.
3. The original appellant filed his written-statement and resisted the eviction application. The original appellant averred in his written-statement that the monthly rent was Rs,750 and not Rs,800. The original appellant further submitted that from the very beginning he was paying the rent in advance to the respondent. It was also averred that the rent for the month of July, 1977 was paid to the respondent in advance on 4-7-1977 and the remaining two cheques, dated 4-8-1977 and 4-9- 1977 were issued by him in respect of the rent payable to the respondent for the months of August and September, 1977 and not of June, July and August, 1977. It was also averred that the three cheques which were issued by the original appellant on different dates were kept purposely with ulterior motive by the respondent and in consequence thereof, the cheque was encashed and the remaining two were dishonoured but the same were not repeated despite the fact that there was sufficient balance for encashment thereof.
4. ' On 24-1-1978, the learned Rent Controller framed the following issues:-
(1) Whether the opponent has committed default in the payment of rent?
(2) What is the rate of rent (This Issue was subsequently framed on 27-4-1978).
(3) What should the order be?
5. ' The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issue No, 1 in the affirmative and issue No, 2 in the negative and allowed the eviction application on the ground of default, vide his order, dated 13-1-1982.
6. ' The original opponent being aggrieved by order, dated 13-1-1982 of the learned Rent Controller, Karachi, has preferred this first appeal, on the grounds mentioned in the memo. Of appeal.
7. ' Mr. Syed Sami Ahmad, the learned Advocate for the appellants 1 to 5, has raised the following contentions:-
(i) The finding of the learned Rent Controller is erroneous and illegal and contrary to record. He did not take into consideration Exhs. 8 and 9, otherwise the decisions would be different.
(ii) Whether appeal has become infructuous by virtue of the fact that the possession of the premises in question is alleged to have been handed over to the landlady?
(iii) Is it not a fact that if it is proved that possession was handed over to the landlady under duress, then this Court is competent to restore possession.
8. ' Mr. M. Rashiduddin, the learned Advocate for L.Rs, 6 and 7 has not addressed any argument.
9. ' On the other hand Mr. Akhtar Mahmud, the learned Advocate for the respondent, has contended that the finding of the Rent Controller is not erroneous, illegal and contrary to record but the finding is in consonance with the evidence on record. The appellants 6 and 7 namely, Haji Abdul Shakoor and Mst. Sofia Wahab vacated the disputed premises and handed over the vacant possession and in view of this fact the above appeal has become infructuous.
10. ' Reverting to the contention of Mr. Syed Sami Ahmed, that the finding of the learned Rent Controller is erroneous, illegal and contrary to record and he did not take into consideration Exhs. 8 and 9. The respondent has made the following averments for the purpose of seeking ejectment:- "Para. 3.-- That in the month of September, 1977, the opponent sent three cheques, dated 4-7-1977, 4-8- 1977 and 4-9-1977 towards rent for the months of June, July and August, 1977, respectively. Photo copy of the said cheques is filed and marked 'A'."
11. "Para. 4.-- That on presentation to the Bank concerned, two of the said cheques i.e, cheques, dated 4-8- 1977 and 4-9-1977 towards the rent for the months of July and August, 1977 were dishonoured by the Bank. Photo copy of the Bank slip is filed as marked 'B'."
12. "Para 5.--That thereafter, the opponent did not pay or tender any rent to the applicant. He is as such in arrears for the months of July, August and September, 1977, and is a wilful defaulter and is liable to be ejected."
13. ' The original tenant had averred in his written-statement as follows: - "The opponent is regularly paying advance rent. The opponent sent advance rent of July, 1977 on 4- 7-1977 through cheque advance rent of August 1977 on 4-8-1977 through cheque and rent of September, 1977 on 4-9-1977 through cheque but the opponent purposely with evil motive presented all these cheques of one date in order to show the opponent defaulter and to proceed for ejectment against him. One cheque was cashed and other two cheques could not be cashed for the reasons not known to the opponent. If other cheques could not be cashed due to any reason, it was duty of applicant to inform the opponent about this position but applicant filed this ejectment proceedings. If the applicant would have presented these cheques monthly, this situation would have not come to pay (sic).
14. ' That para. 5 of the application is denied. The opponent from August, 1977 is depositing rent in Court as per order of First Rent Controller in Miscellaneouse Rent Application No, 3744 of 1977."
15. ' The contention of the learned counsel for the appellant is that all the three cheques were issued for the monthly rent in advance, but due to ill motive of the respondent, she did not present those cheques before her banker for encashment as she wanted to create the ground of default. He has submitted that the original tenant was not wilful defaulter. On the other hand Mr. A khtar Mahmud, the learned counsel for the respondent, has pointed out that the original tenant has admitted in his cross-examination that all the cheques for the months of June, July, August and September, 1977 were sent at the different dates and cheques were sent through his Stenographer Imtiaz Hussain but the tenant has not examined Imtiaz Hussain in support of his version that the cheques were sent on the different dates and in due time. He has stressed upon that there is every possibility that Imtiaz Hussain would have handed over the cheques to the respondent at one and the same time.
16. There is no dispute about this fact that the three cheques were presented on 26-9-1977. Out of those three cheques only one was encashed and the remaining two cheques were dishonoured as there was no sufficient fund lying in the account. Even the reason of non-availability of funds in the account at the time when the cheques were presented to the bank is not disputed. The payment of rent through cheques is a legal tender. Reliance is placed upon the case of Sarfraz Khan v.
17. Muhammad Abdul Rauf PLD 1969 Kar.
176. In the reported case on the point in question the relevant case-law has been discussed in detail and the relevant portion from the judgment is reproduced as under:- "The rule that tender should be in current coins or in currency notes rests on the old English decision which were given at the time when tender of cheques was not the popular or universally recognised mode for discharge of liabilities. It will be noted, however, that with the passage of time, the Courts, both in England as well in this sub-continent, evolved important exception to this rule.
18. The question is, whether there is no scope to evolve any further exception to the rule now when it became an established and universally recognised practice to discharge liabilities by tender of cheques. In my opinion, it will be reasonable to hold that tender of cheque is a valid tender unless the creditor expressly objects to such tender, or unless there is an express provision in the arrangement between the creditor and the debtor that the latter should discharge his liability only by tender of money in current coins or currency notes issued under the authority of some statute.
19. In adopting this rule, I would venture to say that I am not departing from the rules which have been laid down from time to time by the Courts in England and in this sub-continent on the point under consideration. I feel that I am only extending the scope of the exceptions, which have been established by judicial consensus, to the present day conditions. If this view is taken of the question, then tender by the appellant of the arrears of rent and of the rent for August, 1964, by cheque cannot be rejected as invalid tender, because it has not been shown that the landlord, in his dealings with the appellant, ever raised any express objection to payment of rent by cheque, nor has it been shown that the agreement between the parties required that tender of rent should be only in current coins or currency notes."
20. ' It is advantageous to reproduce para. 226 of Halsbury Laws of England, Volume 27(4th Edition).
21. "226.-- Payment in cash or by cheque or notes.-- Rent reserved in money is payable in cash on the date appointed for payment (the 'rent day') and where a written lease evidence of an antecedent oral agreement by the landlord to accept a bill of exchange is not admissible. A subsequent agreement, however, by the landlord to accept payment by cheque as substituted satisfaction for performance of the tenant's obligation to pay cash will prevent the landlord from relying upon the non-payment of the rent in cash on the rent day if the cheque is subsequently honoured. As rent constitutes a debt of equal degree with a speciality debt, it is not discharged by the landlord's act in accepting a bill of exchange or promissory note; such a bill or note is a conditional payment only, that is, it does not operate as satisfaction until it is payed in the absence of specific agreement to the contrary. An agent who is not authorised to receive payment of rent by cheque is not justified in doing so if the circumstances are such that the landlord will be prejudiced should the cheque be dishonoured, and in such a case the agent is liable to pay to the landlord the amount of the dishonoured cheque."
22. A cheque is a negotiable instrument and is conditional payment and if the cheque is dishonoured on presentation the landlord may consider it as a waste paper and resort to his original demand. A oheque issued is valid and payable on demand within six months which is the resonable time. In Pakistan the practice seems to be not to pay after six months during which time it can be cashed at any point of time and during this period it is the duty of the person who issues cheque to keep amount available in his account in the Bank to see that cheque is honoured.
23. ' In Byles on Bills, 23rd Edition page 372 the position of cheque is summarised as follows: "A cheque, unless dishonoured, is payment, when it is said that a payment by negotiable instrument is a conditional payment what is meant is that such payment is subject to a condition subsequent that if the negotiable instrument is dishonoured on presentation the creditor may consider it as waste paper and resort to his original demand."
24. ' It is said in Benjamin's Sale of Goods 1974 (First Edition) para. 695 at page. 310: "It is well-established rule that payment by means of a negotiable instrument is prima facie conditional on the instrument being honoured at maturity."
25. ' In the instant case the cheques were dishonoured and the plea taken is that the respondent was in the habit of withholding cheques before her banker for encashment as she wanted to create the ground of default. The attorney of the respondent has deposed that the three cheques were delivered in the month of September, 1977. The original tenant has deposed that the cheques were delivered through his stenographer on the dates mentioned on the cheques. The stenographer of the tenant was not examined and no step was taken to summon him as a witness. Mr. Akhtar Mahmud, the learned counsel for the respondent, has invited my attention to section 114 of the Evidence Act and also stressed upon that the numbers of cheques are in series and were issued on one and the same date as these cheques are in series.
26. ' The contention of the learned counsel for the appellant has no force. The burden is on the appellant which he had failed to discharge in the instant case. There is no material on record to indicate that the cheques in question were delivered to the respondent on the same date when they were issued by him. The appellant has also failed to prove that the respondent kept the cheques with her for creating a ground for ejectment. I agree with the submission of the learned counsel for the respondent that the cheques were not only issued but delivered in the month of September, 1977. I am of the opinion that it is the duty of the person to keep sufficient funds in his account for at least six months from the date of issue of cheque so that on presentation the same be encashed.
27. ' In view of what is stated above I hold that in the instant case the predecessor of the appellants has committed default because the cheques issued by him in favour of the respondent were dishonoured.
28. ' In view of the above it is not necessary to discuss all contentions raised by the learned counsel for the appellant.
29. ' In the result, this appeal fails and is dismissed but in the circumstances of the case, no order shall be made as to costs.