' An evicition application was brought by the respondent on 6th August, 1971 against the appellant.
Grounds for seeking eviction were that the appellant had defaulted in the payment of rent for 3 tenancy months; that she had inducted, into the disputed shop, two other persons as sub-tenants; and finally that respondent landlord needed the shop bona fide for the personal use of his sons.
The learned Rent Controller while trying the issue framed on these allegations, came to the conclusion that no sub-letting had been taken place, nor the landlord needed the disputed shop for personal bona fide requirement of his sons. However, on the question of default it was found that appellant had failed to pay the rent for the three months alleged by the landlord. Eviction of the appellant was consequently ordered, which she challenged first before the District Judge and again before the High Court. In the High Court a plea was taken that the evidence of tender and deposit of rent, through a money order and in the Court of Rent Controller respectively, was not allowed to be brought on record. Such plea was accepted and it was directed that the issue of default may be tried again after the appellant was allowed to adduce such evidence. She consequently produced a money order receipt, alleged to be the returned counterfoil of a money order; as well as the challans of the rent deposited in Court. She also examined Naib-Nazir of the Court, Sohbat Khan the postman, who had taken the money order for delivery, and herself.
2. The learned Rent Controller came to the conclusion that because the returned counterfoil of the money order did not have round seal of the post office, therefore, it was not to be taken on its face value. Statement of the appellant in this behalf was disbelieved because of the contradiction found by the learned Rent Controller, in her statement made subsequent to remand by the High Court, with the one made by her earlier on 22nd May, 1973. For such reasons it was held that the rent had not been paid for the alleged period. Therefore, the eviction was ordered for the second time. This eviction was challenged originally through an appeal before the District Judge, which stood transferred to this Court as a result of change in the law.
3. The counterfoil of the money order is available on record as Exh. 'R-2'. It has the long seal of Quetta post-office at the appropriate place. This receipt has been duly proved by Sohbat Khan the postman, who has appeared in the witness-box and stated on oath that the money order, when presented to respondent Ajmeri Khan, was refused to be accepted. There is no evidence that presence of round seal is a requirement of post office procedure to show that it was duly presented but refused. For all these reasons, I am of the view that the mere absence of the circular seal on the counterfoil Exh. R.2 does not throw any doubt on its authenticity. I would, therefore, hold that an amount of Rs.40, rent for one month, was duly tendered through money order, dated 17th June, 1971.
4. The appellant was first examined on 22nd May, 1973, and again, after remand of the case by the High Court, on 23rd July, 1977. In the earlier statement, in her cross-examination, she had stated that she had paid rent for the period from 18th June, 1971 to 17th September, 1971, and that the receipts 'might' be available at her residence. This statement is held by the learned Rent Controller to be in contradiction with her later statement of 23rd July, 1977. In the second statement, she has claimed that the rent for the month of June, 1971 was sent through money order. In the first place the appellant was not confronted with her earlier statement of 22nd May, 1973, in terms of section 145 of the Evidence Act. Therefore, this earlier statement cannot be made use of for the purposes of showing any contradiction. The reasons are quite obvious. The appellant was not afforded an opportunity to explain the difference, if any, between the two statements. Secondly her earlier statement was with respect to the payment of rent for the period June to September, 1971. It is now shown that she had tendered the rent for the month of June through money-order while the rent for that month together with the subsequent month was deposited by her in Court for which she is in possession of regular challans which were produced in Court, after remand. Therefore, the reference by her to the presence of receipts can easily be construed to be to the counterfoil of money order as well as the challans.
5. But on the evidence brought on record, it is clear that she had not tendered/deposited the rent for the tenancy months starting from 17th July to 18th August, 1971. My reasons are as follow:--
6. In order to determine when the rent became due for each tenancy month, we have to refer to clause (3) of the Tenancy Agreement, which reads as follows:-- "(3) as stated above, the rent shall commence from 18th September, 1965 and will be paid (in) advance by the 5th of each month".
' Mr. Basharatullah, the learned counsel for the appellant contends that reference, in this clause, to the 5th of the month', is a reference to the tenancy month and not to the calendar month.
Proceeding from such a hypothesis the learned counsel contends that the rent for each tenancy month would become due on the 22nd of the calendar month, next following. This is because the tenancy month starts from the 18th of a month and ends on the 17th of the following month. Thus, according to the learned counsel, if a rent is paid within 15 days of the 22nd of each subsequent month the default is not committed. From this reasoning, it is contended, that the rent for the tenancy month starting on 18th July and ending on 17th August would fall due on the 22nd of August and if tendered by the 3rd of September, no default of payment of rent, for such tenancy month, can be claimed. It is further contended that as the eviction application was filed on 6th August, 1971, therefore, no claim for default, in the payment of rent for the tenancy month ending on 17th August, could be made. As to the tenancy month, ending on 17th of July, 1971, the tender through money order was duly made.
7. This argument flows from a wrong assumption. The reference to the word 'month' in clause (3) of the Tenancy Agreement, in the absence of any language to the contrary, is to be construed as reference to calendar month. General Clauses Act in clause (33) of section 3 declares that a month would mean a month reckoned according to the B British calendar. If a reference was to be made in clause (3) of the tenancy agreement to a tenancy month there was nothing to stop the executors of the deed to state so in clear language. Again it is clearly mentioned in this crucial clause that such rent shall be paid in advance. For these reasons, I would hold that the rent for the period 18th July to 17th August fell due on the 5th July, 1971.
8. The rent for the tenancy month between 18th June and 17th July was duly tendered by the appellant through money order on 17th June. After refusal of the landlord to accept such rent the tenant appellant sought to deposit such rent together with the rent for the subsequent month, in Court. But she deposited such rent in Court on 22nd July, 1971. This is evident from Challan No. 338/21-7/71 of that date. Thus, the rent for the tenancy month ending on 17th July, 1971, which fell due on 5th July, 1971, was deposited beyond the 15 days, grace priod allowed by section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The default, therefore, for the tenancy month ending on 17th July, 1971 is patent.
9. The learned counsel for the appellant further contends that it is a default only of two days and, therefore, it is a fit case for exercise of discretion under section 13 of the Ordinance, in favour of the tenant; and that in such circumstances eviction may not be ordered. Discretion, in favour of a tenant, is exercised only in circumstances where it is shown that the default in payment of rent was occasioned due to unavoidable causes. Nothing is shown to indicate that causes, beyond the control of the tenant , existed in the present case. In fact no such plea was ever taken. Never has, shortness of the period of default been made the basis of exercise of such discretion. Therefore, no grounds exist for the exercise of such discretion in favour of the tenant.
' For these reasons, therefore, I would dismiss the appeal with costs. The tenant should place the landlord in possession of the disputed shop within three months.