1. ' Appellant Mrs. Hamida Habib Patel is owner of, and the respondent Mrs. Ayesha Islam is tenant in, a residential Flat No,7, Patel Court, Bath Island, Karachi. The appellant filed a Rent Case No,67 of 1982 before XVIth Senior Civil Judge/Controller, Karachi on 2-1-1982 for ejectment of the respondent from the rented premises on ,the ground of wilful default in payment of rent from March, 1980 onwards. The respondent resisted the ejectment case, denying the allegations of wilful default in payment of rent. The parties adduced evidence. The learned Controller dismissed the rent case by judgment, dated 13-11-1983. The appellant has preferred this appeal against the order of .Dismissal of rent case.
2. ' The learned counsel for the appellant has urged that the appellant's case is that the respondent had not paid the 'rent from March, 1980 and this fact was not controverted by the respondent and yet the learned Controller dismissed the ejectment application on adopting totally erroneous view that no wilful default was committed. On the other hand, the learned counsel for the respondent has contended that the appellant had earlier filed an Ejectment Case No,3009 of 1980 on the ground of default in payment of rent for 5 months and that case was dismissed on 28-11-1981 and thereafter the appellant refused to accept the rent offered to her Chowkidar and later sent by a cheque and ultimately the rent was deposited with the Controller.
3. ' The relationship between the parties of landlady and tenant has cracked into litigation since 1980.
4. The appellant filed Rent Case No,3009 of 1980 on 17-5-1980 for ejectment of the respondent from the rented premises on the ground of default in payment of rent for the months of March, April and May, 1980. The respondent successfully resisted the rent case and it was dismissed by an order, dated 28-11-1981. The appellant filed the second ejectment case, being Rent Case No,67 of 1982, on 3-1-1982, on the ground that the respondent had not paid rent from March, 1980. The appellant's allegations in the second case, as contained in paragraphs 4 and 5 of the ejectment application, are as under:- "(4) That since the opponent had failed to pay the rent for the months of March, April and May, 1980 as a result applicant filed Rent Case No,3009 of 1980' but unfortunately, the said ejectment application was not allowed by the VIIth Senior Civil Judge and Rent Controller as according to him the default was not committed.
(5) That the opponent has failed to pay rent since March, 1980 upto date as such, has committed wilful default in the payment of rent and rendered herself liable for ejectment from the premises in question."
5. ' The respondent's reply to the aforesaid allegations is contained in paragraphs 2 and 3 of the written statement, filed by her. They read as under:- "(2) That regarding para. 4, it is submitted that the opponent has not committed any default in payment of rent as she has never refused to pay the rent. In any case the case has been dismissed by the Controller.
(3) That the contents of para. 5 are denied. The applicant wilfully and deliberately failed to receive the rent from the opponent and after disposal of the aforesaid case the opponent when found that the applicant deliberately does not want to receive the rent, tendered the rent in Court and deposited the same in Court in Rent Miscellaneous No,831 of 1982 in the Court of XVIth Rent Controller Karachi as such the opponent has already deposited the rent upto June, 1982 in the Court in the above case."
6. ' The evidence of the parties is reiteration of the facts stated in their respective pleadings.
7. ' It appears from the version of both the parties that dispute between them in respect of payment of rent has lingered on since March, 1980. The appellant filed Rent Case No,3009 of 1980, on 17-5- 1980, for ejectment of the appellant on the grounds that the rent was not paid for the months of March, April and May, 1980. The contention of the respondent was that there was understanding between them that rent would be paid for every two months collectively and that rent for the months of March and April, 1980 was offered to a Chowkidar of the premises by way of cheque, as the practice was, but the payment was not accepted and, thereafter, rent was remitted by money order but that too was refused. The learned Controller accepted the plea of the respondent in that case viz. Rent Case No,3009 of 1980 and dismissed the application by holding that no wilful default was committed by non-payment of rent for the month of March, 1980 and that there was no default in payment of rent for the months of April and May as default in payment of rent, had not become mature in accordance with law. Undisputedly, rent was not paid for those 3 months and also for the subsequent period occupied in the pendency of the Rent Case No,3009 of 1980. The Rent Case No,3009 of 1980 was disposed of on 28-11-1981. The Second Rent Case No,67 of 1982 was filed on 3-1-1982 i.e. After the lapse of 45 days of the disposal of the earlier Rent Case No,3009 of 1980. Evidently, the rent had remained unpaid for 21 months from March, 1980 to November, 1981.
8. The plea of the respondent in her written statement filed in the Rent Case No,67 of 1982, as contained in paragraph No,3 thereof reproduced above, is that the appellant had wilfully and deliberately failed to receive the rent after the disposal of the previous case and she, therefore, tendered the rent in Court under Rent Miscellaneous Application No,831 of 1982. She has filed in evidence a cheque, dated 27th January, 1982 in the sum of Rs,14,950 representing to be rent for 26 months from March, 1980 to April, 1982. This cheque is said to have been sent in a registered cover alongwith a forwarding letter which is, dated 27th January, 1981. It may be mentioned that the year "1981" appears to be error for the year 1982.. In any case, it is an undisputed fact that the rent was not paid from March, 1980 onwards. The first ejectment case viz. Rent Case No,3002 of 1980 filed on the ground of default in payment of rent for the months of March, April and May, 1980 was dismissed on 28-11-1981 on the ground that non-payment of rent for those three months did not amount to default in payment of rent under Law. Rent was not paid also for the period occupied in the pendency of the Rent Case No,3009 of 1980 from May 1980 to November, 1981 i.e. For 18 months.
9. Rent was not paid even after the decision of the Rent Case No,3009 of 1980. Another Ejectment Case No,67 of 1982, wherefrom this appeal has arisen, was filed on 2-1-1982. Of course, the respondent did contend that rent was tendered to the applicant by means of a cheque but payment was not accepted and she filed in evidence a cheque, dated 27-1-1982 for the sum of Rs,14,950 only. She did not file another cheque, she alleged to have sent earlier. The cheque, dated 27-1-1982 was, obviously, subsequent to the filing of the ejectment application. The miscellaneous application where under the respondent deposited the arrears of the rent from March, 1980 was filed, as per her own statement, in February, 1982 and that deposit too was subsequent to the filing of the Second Ejectment Case No,67 of 1982. It is, therefore, to be determined whether non- payment of rent for the period from March, 1980 onwards amounted to wilful default in payment of rent. The second ejectment case was filed on 3-1-1982. The arrears of rent from month of March, 1980 to December, 1981, therefore, extend to a period of 22 months.
10. ' The crucial question for consideration is whether non-payment of rent for the period occupied in the pendency of the previous Rent Case No, 3009 of 1980 amounted to wilful default in payment of rent. The learned counsel for the appellant has, urged that the appellant did not stand absolved of her liability to have paid to the landlady the rent having fallen due from month to month during the pendency of the previous rent case. On the other hand, the learned Counsel for the respondent has contended that the respondent/tenant was not legally bound to have, paid the arrears of the rent or future rent during the pendency of the Rent Case No,67 of 1982 unless there was an order in that regard by the Controller under section 16 of the Sind Rented Premises Ordinance, 1979. Elucidating his arguments, he submitted that such an order could be passed by the Controller only on the application of the landlady and that no such application was made by the appellant and no order was passed by the Controller and, therefore, no default in payment is attributable to the respondent. It would be worth while to reproduce section 16 of the Sind Rented Premises Ordinance, 1979.-- "16. Arrears of rent.--(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put in possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
(3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
11. It is evident that the Controller is empowered to determine arrears of rent due and order the tenant to deposit the arrears of the rent within specified period and also direct him to deposit monthly rent regularly on or before tenth of every month till the final disposal of the case, provided there is an application by the landlord for making such an order. Of course, the appellant/landlady did not invoke the powers of the Controller under section 16 of the Sind Rented Premises Ordinance, 1979; but that fact did not absolve the respondent/tenant of her liability to pay the monthly rent in accordance with law, particularly in the circumstances that there was no dispute about their relationship of landlady and tenant, the rate of the rent and the period for which it was due. The respondent/tenant was conscious of the fact that her ejectment was being sought on the ground of non-payment of rent and yet she did not pay/tender the monthly rent during the pendency of the Rent Case No,3009 of 1980. Even if she bona fide entertained the impression or was advised to labour under the belief that she was not bound to pay/tender rent during the pendency of the Ejectment Case, unless ordered by the Controller in accordance with the provision of section 16 of the Sind Rented Premises Ordinance, 1979, she should have paid the rent as soon as the Rent Case No,3009 of 1980 was decided on 28-11-1981. Bute it appears that she did not care discharge her liability of making payment of rent for nearly two months and she tendered the rent by sending a cheque on 27-1-1982 after the filing of the ejectment case No,67 of 1982 on 3-1-1982. It follows that non-payment of rent by the respondent from March, 1980 to October, 1981 i.e. For the period of twenty months amounted to wilful default. Rent for the months of November and December, 1981 also had fallen due by the time the Rent Case No,67 of 1982 was file on 3-1-1982 but its non- payment had not culminated into default envisaged under clause (ii) of subsection (2) of section 15 of the Sind Rente Premises Ordinance, 1979.
12. ' For the reasons recorded above, the respondent has rendere herself liable for ejectment on account of her failing to pay/tender rent for the period of March, 1980 to October, 1981. Accordingly, the appe is accepted and the appellant's Rent Case No,67 of 1982 is allowed and the respondent is directed to hand over vacant possession of the rented premises to the appellant within three- months. The appellant is awarded costs of the Rent Case No,67 of 1982 as well as of this appeal.