' This second rent appeal under section 15(1) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as "Ordinance") has been filed against the order, dated 22-2-1981 of V- Additional District Judge, Karachi who allowed appeal of the respondent and set aside the judgment, dated 25-10-1978 of XVth Civil Judge and IV Rent Controller, Karachi.
2. The appellant Mst. Roshan Habib, is owner of Flats Nos. 3 and 4 on Plot No. 137-A, Block A, Kathiawar Housing Society, Karachi and respondent is a tenant at monthly rent of Rs.600 p.m.
Respondent Haji Osman failed to pay rent from March 1976 till filing of rent case i.e. On 7-7-1976, in which it was stated that respondent has committed default in payment of rent deliberately and wilfully. The Rent Controller decided the rent case in favour of the appellant and ordered the respondent to hand over vacant possession of the premises within 60 days. Being, aggrieved with the eviction order, the respondent/tenant filed an appeal and learned Vth Additional District Judge, Karachi, reversed the findings of the Rent Controller and came to the conclusion that Rent Controller had wrongly exercised the discretion in favour of the tenant. He allowed the appeal with the result that rent application filed by appellant was dismissed.
3. Mr. Amjad Hussain, Advocate appearing for the appellant contended that respondent committed wilful default in payment of rent of three months, therefore, he is liable to be evicted. He has referred to the case reported in 1978 SCMR 365. He has also argued that payment of rent by cheque is not valid payment. He has referred to a case reported in PLD 1982 Kar.
403. It is also inter alia contended by the learned counsel that respondent after filing of rent case also did not tender rent till tentative rent order was passed on 5-7-1977. His contention is that respondent has subsequently also failed to pay rent. He has referred to a case 1985 CLC 2066. He has controverted the contention of the respondent about the adjustment and referred to cases reported in 1980 SCMR 834 and 1980 SCMR 298.
4. Mr. A. Latif, Advocate appearing for the respondent argued that respondent used to send rent by cheques which were being accepted by the appellant and he deliberately kept the rent cheques with himself and did not produce in bank with mala fide, so as to make out the case of default. It is also argued that appellant could adjust the rent from the deposit already lying with him. He has referred to a case reported in PLD 1980 SC 298. It is also argued that in second appeal these points cannot be considered, and Vth Additional District Judge has erroneously set aside order of the Rent Controller. He has referred to the cases reported in PLD 1969 SC 617; PLD 1978 Kar. 851; 1982 CLC 135 and PLD 1981 Kar.
537. On continuous default, it is argued that appellant had no cause of action at the time of filing rent case. He referred to a case reported in PLD 1980 Lah.
302. The learned counsel for the respondent has frankly admitted that payment of rent by cheque is not a valid tender but in the present case, there was a practice between the appellant and respondent, therefore, this question in the circumstances may not be considered.
5. In this case plea taken by tenant/respondent in written statement is that he used to tender rent by cheques regularly and he came to know in March 1976 that appellant had not sent the cheques to Bank. The respondent produced counterfoils of cheques in support of his case. He in his evidence Exh.8 before the Rent Controller stated that he sent rent for March and April 1976 through cheque to appellant. He produced counterfoils Exh. B/1 and B/2 and also certificate from Manager, Muslim Commercial Bank Exh.B/5 showing that cheques issued by respondent on 3-2-1976, 17-3-1976 and 14-4-1976 were encashed by the appellant. This shows that rent for the month of March 1976 was received by the appellant on 19-4-1976. There is no positive proof of payment of rent for the months of April, May and June 1976, except that applicant produced counterfoils. There is no evidence to show that cheques for the rent for April onwards were actually given to the appellant. The respondent stated in his evidence that cheques were sent. He has not stated who delivered the cheques to appellant. The person who gave cheques to appellant has not been examined nor there is any signature of appellant or his agent on counterfoils showing that cheques were actually received by appellant.
6. The respondent/tenant has failed to produce any other evidence in support of his contention in respect of payment of rent by cheque. First of all in my view a payment by mode of cheque is not a legal tender. Furthermore, in circumstances of present case a word of the respondent alone is not sufficient to prove that cheque was sent. Production of the counter-foils of the cheque is not sufficient to substantiate, as cheque books are in possession of respondent and these counter-foils could easily be managed. This evidence is not worthy of credit. On this I am fortified by a case of Ghafoor Ahmad v. Anwar Baig reported in PLD 1982 Kar.
403. The result is that at the time of filing rent case respondent was in default of rent for 3 months.
In case he is given benefit of 60 days as required by law even then he is defaulter. The payment of the rent is to be made strictly in accordance with the requirements of the law. No kind of practice even if evolved with mutual consent of the party can override the relevant provisions of the case.
Even if parties followed any practice in regard to payment of rent, tenant cannot be permitted to set up such practice as defence.
' On this I refer to a case of Mst. Iqbal Begum and 4 others v. Mian Manzoorul Islam reported in 1978 SCMR 365, where it has been held that tender of rent made after expiry of 60 days from the date when it fell due even then the tenants held defaulters and are liable to be ejected.
7. The next point which also requires consideration is continuous default. The rent case was filed on 7-7-1976 and written statement was filed on 6th January, 1977. The respondent even after filing the rent case did not tender rent till tentative rent order was passed by the Rent Controller on 5-7-1977.
He continued to remain defaulter and there is nothing to show that he attempted to tender rent by way of cheque after the filing of rent case. From the record it is clear that he also committed default continuously. On this I refer a case of A. Ghani v. Mst. Rasool Bibi and others reported in 1985 CLC 2066.
8. Reverting to the next contention of the learned counsel of the respondent about the adjustment.
It is an admitted position that an amount of Rs.2,400 was paid to the appellant as a security deposit. The respondent claims adjustment towards the rent. The attorney of the appellant stated in his evidence Exh. A that respondent paid Rs.2,400 as security deposit which is not adjustable towards the rent. No suggestion has been made to the attorney if this security deposit was adjustable towards the rent. On the contrary respondent in his evidence has stated that he paid Rs.2,400 as rent for 4 months which fact is contrary to the evidence. There is no written agreement about such adjustment to be made towards the arrears of rent. The deposits are made by the tenants on various considerations not only for the purpose of arrears of rent. Moreover, the case of the respondent is that he used to tender the rent every month and he has not taken any plea that there was any agreement that this amount lying as security deposit was adjustable towards the rent. The learned counsel has referred to a case of Sh. Bashir Ahmed v. Nisar Ahmed and another reported in PLD 1980 Lah. 302 where it has been observed that adjustment towards the rent should be considered while passing any order under section 13(6) of the "Ordinance" 1959. The facts of the present case as stated above are different. In case of Mirza Abdul Beg v. Mushtaque Ahmed Shaikh reported in 1980 SCMR 834, it has been observed that if it was found that deposit was by way of security against tenant's liability for damage if any to the demised premised then such deposit is not adjustable against the rent due from the tenant. The respondent cannot get benefit as there is no positive proof that this deposit was adjustable towards the rent.
9. Mr. Abdul Shakoor counsel for the respondent has also argued that the findings of 1st Court have great value and which are not to be interfered by the High Court in second appeal. He has relied on a case PLD 1978 Kar. 851 and PLD 1969 SC 617. I do not agree with this contention as in this present case the legal points are involved about the tende of rent by cheque and default in payment of rent by the tenant in violation of mandatory provision of Sind Rented Premises Ordinance, 1979, therefore, in my humble view, if legal plea is taken it could be decided in second appeal.
10. The upshot of the above discussion is that respondent has committed wilful default in payment of rent and he is liable to be evicted. Consequently I allow the appeal and set aside the judgment, dated 22-2-1981, passed by the Vth Additional District Judge, Karachi. The eviction order passed by the Rent Controller in Rent Case No.2895 of 1976 is maintained. The respondent is directed to hand over possession of the demised premised to the appellant within 60 days from the passing of this order. In the circumstances of the case the parties to bear their own costs.