' This appeal is directed against the order of XII Senior Civil Judge/A.S.J. And Rent Controller Karachi, dated 31-1-1983, whereby, she dismissed the ejectment application of the appellant under section 15(2) of Sind Rented Premises Ordinance, 1979.
2. Appellants are admittedly the owner and landlord of building known as a Makki Manzil, situated on Plot No, W.O. 5-22/6, Mission Road, Karachi, and the opponent is their tenant in respect of tenament No,21 thereof on the monthly rent of Rs,25.50. Appellant No,1 Haji Mohiuddin, is said to have expired. His only L.Rs, are appellants Nos.2 and 3, who are already on record. As application had been made for deleting from the memo of appeal the name of appellant No,1 which was allowed and his name has been scored off therefore with red ink. The opponent is alleged by the appellants to be habitual defaulter and irregular in payment of rent. He has not paid the rent since 1-4-1973'. Hence, this ejectment application was filed on 11-1-1981.
3. The respondent has denied in, his written statement that he was a defaulter. He has alleged that on the contrary the appellants had refused to receive the rent and demanded that it should be enhanced. On the refusal of respondent to do so his water connection was cut off and he was harassed in many other ways. The opponent has 'asserted in his written statement that on the contrary he has been regular in payment of rent. On the refusal of the appellants to receive the rent he remitted the same by Money Order, which too was refused by the appellant. He, therefore, started depositing the same with the Controller in Miscellaneous Application No,2455/75 regularly.
4. The deceased appellant No,1 and the respondent had filed their affidavits in evidence and were cross-examined at length by each other's Advocate. The learned Controller after taking into consideration the evidence of the parties and after hearing the arguments of their counsels dismissed the ejectment application as shown above.
5. I have heard Mr. Faizuddin, Advocate for the appellants and Mr. Naeem-ur-Rehman, Advocate for the respondents at length.
6. From the evidence that had come on record of the learned trial Court it is quite-clear that after the refusal of the money orders by the appellants the respondent started depositing the rent with the Controller.'lie had produced only one receipt Exh.B/1 for Rs,586, dated 29-7-75. Thus there is payment of rent for a period of about 26 months, whereas, the rent was due for more than 93 months. The case of the respondent was that he had first tendered the rent to the appellants and on their refusal. To accept the same sent two money orders to the appellants which too were refused by them. The respondent has not produced the counter-foils of these money orders or any documentary evidence with regard to the same. The record of the Lower Court shows that money order coupons Exhs. A/1 and A/2 were shown to the deceased appellant No,1 during his cross- examination and he had admitted that he had refused to accept the same. Those coupons are not available on the record. The respondent has admitted in his cross-examination, that the same were lying at his house. It appears that these coupons were taken away by the respondent after being shown to the appellant in the witness box. The respondent has then produced one receipt Exh.B/1 for Rs,586 as already stated above. Although he has stated that since then he was regularly depositing the rent with the Controller in that Miscellaneous Application, but he has not produced any other receipt and the presumption would, therefore, go against him, because the onus was on him.
7. It is, therefore, clear that it was proved in the trial Court that the respondent was defaulter. Once default in payment was established the discretion of ejectment ought to have been exercised in favour of the landlord until and unless good cause has been shown for its exercise in favour of the tenant.
8. In this case non-payment of rent for such a long period was a default which could not be condoned. The allegation of the respondent that appellants had refused to receive the rent and had demanded it at enhanced rate is denied by the appellant. The contentions of the appellants on the contrary is that the respondent had himself failed to make payment in spite of repeated requests. The learned Rent Controller while discussing the allegation of the respondent has observed that the same is supported by an order passed by Second Class Civil Judge, Karachi XXIII on injunction application, dated 14-3-1981. I have gone through the order. There is nothing in this order which can show that the appellant had refused to receive the rent or had demanded enhanced rent or that the respondent was not a defaulter. It is the duty of the tenant to pay the rent every month to the landlord or to deposit it with the Controller. He does not stand absolved of his liability to pay the contractual rent, in spite of the fact that the landlord has been insisting on payment of enhanced rent. Reference in this connection may be usefully made to Haji Ashraf-ud- Din v. Sabir Hussain 1973 SCMR 309, where it was held as follows:-- "Although the contention that in view of the demand of higher rent by the landlords, the tenant stood absolved of his liability to pay even the contractual rent is supported by the judgment of a learned single Judge of the High Court of West Pakistan at Peshawar in the case Muhammad Sabir v. Abdul Malik PLD 1967 Pesh. 96, yet this view runs counter to the pronouncement of a Division Bench of that very Court in Rehmat Ali v. Khadeja Hakeem PLD 1967 Lah.
29. In this later case, the learned Judges have rightly laid down that the liability to pay or tender the rent due remains on the tenant, irrespective of the higher amount demanded by the landlord. We consider that this is undoubtedly the correct view to take."
9. The second finding of the Controller that the rent tendered b the Money Order had reached the appellant before service of notice in this case which was refused and, therefore, he had started deposftin it in Court and thus, he was not a defaulter also was not of any ava to the respondent, because the respondent had not produced mo than one receipt as shown above and had not proved that he had deposited the entire rent that had become due with the Controller, is time.
' The appellant has of his own account produced as an annexure with the appeal, photostat copy of an application made by the respondent to the trial Court requesting that a report may be called for from the Nazir as to how much amount was deposited by the respondent in Miscellaneous Application No,2455 of 1975. Consequent upon that application the Nazir submitted statement of account which is as under:-- 29-7-19754097 586.50 30-1-197628461 255.00 20-10-197719828 500.00 18-3-197846023 500.00 5-5-197960873 150.00 30-3-198057248 200.00 11-11-198029781 200.00 29-1-198145924 200.00 9-7-19814054 100.00 18-11-198139674 100.00 Total Rs. 2,791.50 {{CHECK THE PARAGRAPH}}
11. The Statement shows that the respondent had made the first payment of not on 29-7-1975 for Rs,586. By this date the respondent was already in arrears of rent of 27 months, which beginning for 1-4-1973 amounted to Rs,688.50. Thus it would appear that he had made short payment of Rs,102.
Similarly, the second payment which was made by him on 30-1-1976 was of Rs,255. By that date the respondent had fallen in arrears of rent for a period of 10 months. The deposit of Rs,255 no doubt covered this entire period of 10 months but since it was deposited in lump sum and after 10 months the default had, therefore, taken place, on this occasion as well. He then referred to the third payment made by the respondent on 20-1-1977, which was for Rs,500 whereas the default by that date was of 21 months, and the rent which had fallen due amounted to Rs,535. Hence, it would, appear that not only there was a default of 21 months on these occasions but there was also a short payment of Rs,35.50.
12. He then referred to the 4th payment which was made on 18-3-1978 and amounted to Rs,500. He pointed out that on the occasions there was a default of 6 months. On this occasion no doubt an amount of rent of Rs,153 had only become due, yet the respondent had deposited Rs,500 i.e. 347 in excess but the default of 6 months which had taken to the respondent's lapes could not be washed away even by an excess payment after the default was once committed.
13. I have given my thoughtful consideration to the contention of the appellant's counsel. So far as the first three payments referred to above and the consequent defaults of various periods mentioned alongwith them are concerned the same cannot be made the basis for ejectment because these defaults on account of non-payment of arrears of rent were for a period clearly beyond the limit of three years before the date of institution of proceeding. Such law was laid down by Mr.Zaffar Hussain Mirza, J, in Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh in 1980 CLC'660.
14. However, as far as the default on the 4th occasion is concerned it was for non-payment of rent.
Of 6 months the same was within a period of three years before the filing of the ejectment application. Hence, the same can be made a basis for ejecting the respondent a has been held in the above ruling which is quite parallel to this case.
' The relevant citation is as under:-- "It was next urged by the learned counsel for the appellant that on the date of the application for ejectment on 8-3-1968 the respondent was entitled to claim arrears of rent only for a period of 3 years prior to the date of the application, for, it is well established that the word 'due' refers to the rent due in law and recoverable in an action at law vide PLD 1968 SC 230. It was, therefore, contended that the ejectment cannot be sought on the basis of arrears of rent for a period falling beyond the limit of three years from the date of institution of proceedings. There can be no quarrel with the proposition of law submitted but it is not material for the present purposes. As already noticed the ejectment application was made on 8-3-1968 and, could, therefore, cover a period of 3 years extending backwards up to 8-3-1965. The ejectment of the appellant was ordered for non- payment of rent for the period between July, 1963 to July, 1965. Admittedly, the appellant paid the arrears of rent on 4-8-1965, therefore, from 8-3-1965 to 4-8-1965 is the period of default' for which the rent was due and recoverable by process of law on 8-3-1968. There is, therefore, no substance in contention as well."
As 1 have already pointed out this default was committed immediately before 18-3-1978 whereas the ejectment application was filed on 11-1-1981 and, therefore, the default of 3 years immediately before the filing of the ejectment application would, come to an end on 11-1-1978 and a period of two months and six days after this date was within the time limit of three years. It has been held in a number of rulings including the ruling in the case of Muhammad Ahmad reported in 1980 CLC 664 referred to above that when a tenant had once committed default by not paying or tendering rent within the prescribed period he was liable to be ejected notwithstanding, subsequent payment of arrears of rent unless the case of waiver on the part of landlord was made out. The relevant observation of Mr. Zaffar Hussain Mirza, J. May be usefully reproduced as under:-- "In the provision under examination the Legislature clearly provided that in case it is found that the tenant has failed to pay or tender rent "within fifteen days after the expiry of the time fixed in the agreement of tenancy with landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable", he is exposed to the liability of being ejected by the Controller. The foregoing words of the subsection put into inverted commas clearly negate the interpretation put forward by the learned counsel. If the intention of the Legislature was to confine the ground of non-payment of rent for ejectment only to cases where the tenant continues to remain in arrears, nothing prevented it from employing such clear language. Reading the subsection in its entire context, therefore, I am of the opinion that once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of the arrears of rent unless he can make out a case of waiver on the part of the landlord. I, therefore, find no force in the submission of the counsel."
15. Hence, the deposit of rent on 18-3-1978 or on the dates following the same shown in the statement of account referred to above would not wash away the above default of two months and six-days.. I am, therefore, of the clear view that even if the learned Rent Controller had taken into consideration all the deposits made by the respondent he would not have been justified in refusing the ejectment of the respondent. Hence, I allow the appeal and set aside the order of the learned Controller, and direct the respondent to hand over the vacant, possession of the disputed premises to the appellants Nos.2 and 3, within 60 days of this order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.