1. This First Rent Appeal is directed against the order dated 10th August, 1986, passed by the learned IIIrd Senior Civil Judge and Rent Controller, Karachi (West).
2. The brief facts giving rise to the present appeal are that the respondent was owner of shop in dispute and the same was rented out to the appellant for three years starting from Ist April, 1983, at the rate of Rs. 350 per month by a Registered Agreement dated 5-1-1983. According to the respondent the appellant had failed to pay rent from August 1983 and has also sub-let the premises to one Jawaid and therefore he was a defaulter.
3. The appellant filed his written statement in which the relationship of landlord and tenant and the rate of rent was admitted. However, the allegation regarding default and sub-letting was denied. It was further stated that he had offered the rent to the landlord personally but he refused to accept the same on the pretext that he will collect the accumulated rent for 2/3 months. That he tendered the rent of August and September 1983 by money-order but the same was refused, and therefore the rent was being deposited by him in Court since 1983. It was further stated that the application was mala fide and it was filed to get enhanced rent and Pagree.
4. From the pleadings of the parties the following issues were framed:- (1)Whether the opponent committed wilful default in payment of rent?
5. (2)Whether the opponent transferred the possession of the disputed premises, without the permission of the applicant?
6. After taking into consideration the evidence produced by the parties, the learned Rent Controller decided issue No. 1 in the affirmative, while the issue No. 2 was decided in negative, and consequently the ejectment order was passed against the appellant. The present appeal has been filed against the above order of ejectment.
7. I have heard Mr. S. Amjad Hussain learned counsel appearing for the appellant, Mr. Yousuf Hussain learned counsel appearing for the respondent, and have also gone through the R & P of the case.
8. It was contended by Mr. S. Amjad Hussain that the rent of August was offered to the respondent but he avoided to accept the same on the pretext that he will collect the rent of 2/3 months. That the appellant offered rent for the month of August and September, 1983 to the respondent but he avoided to accept the same and therefore, the rent was sent by money-order but the same was refused. Thereafter the rent was deposited in Court and as such the appellant was not a defaulter.
9. In support of his contention the learned counsel has relied upon 1984 CLC page 2769, 1984 CLC page 2987 and 1987 SCMR page 1313.
10. Mr. Yousaf Hussain, learned counsel appearing for the respondent has contended that since the date for payment of rent was fixed, the appellant had to pay or tender the rent within 15 days from the due date. That the appellant had failed to tender rent in time for the month of August and September 1983 and therefore he was a defaulter. In support of his contentions the learned counsel has relied upon 1986 CLC page 2029 and 1987 CLC page 364.
11. I have considered the contentions of the learned counsel. The relationship of landlord and tenant is admitted and even the rate of rent was also admitted. The case of the respondent was that the appellant had failed to pay rent for the months of August and September, 1983, while the case of the appellant/tenant was that he never avoided neglected or intentionally failed to pay rent from August as alleged. It was stated that opponent tendered rent to applicant/respondent personally but he refused to accept it on the ground that he would collect the rent after 2/3 months but when the opponent again tendered the rent to him he gave the same excuse. Thereafter he came to know through other tenants that the applicant/respondent had served notice of ejectment on them and was harassing them on false grounds, therefore, by way of precaution he sent rent for the months of August and September, 1983 by M.O. Which was refused and thereafter he has been depositing the same in the Court. The allegation regarding sub-letting was false. The application was filed mala fide and there was no breach of terms and conditions of tenancy agreement.
12. Respondent Mehar Elahi has repeated the allegations in his affidavit in evidence so also his rent collector Masoodullah. However, Mehar Mahi has admitted in cross---examination that he has filed 6/7 cases against his tenants for ejectment. They used to pay rent to his rent collector Masoodullah. He did not know when they have received rent from the opponent. They have record about collection of rent which is with the rent collector. His clerk did not refuse to accept the rent for the month of August, 1983 except when the possession was handed over to the other party. He has also admitted a suggestion that the rent of August, 1983 was sent through money order and it was refused by rent collector. So also the rent of September and October, 1983. He has admitted that the opponent started depositing rent in Court in M.R.C. No. 5950 of 1983 from November, 1983. He has denied a suggestion that no man with the name of Javed sits at the shop in question. He has not given any notice to the opponent before filing the present application.
13. Masood Illahi rent collector of the respondent has deposed that he did not issue notice to the opponent nor to Javed to whom the shop in question was sub--let. He had refused the money order. The opponent used to pay rent in his office every month. Then money order was received after filing of his case. He did not remember that when this case was filed. He had refused to accept rent for August, in September, 1983 and also he refused to accept rent for August and September 1983 sent on 19-10-1983 as one Javed was sitting in the shop. He has admitted that the opponent is depositing rent in Court from November, 1983. He has denied a suggestion that they have filed this case in order to enhance the rent.
14. The appellant has supported the contents of his written statement in his affidavit in evidence. He has also produced the money order coupon, showing that the rent for August and September, 1983 was sent on 15-10-1983. He has also produced receipts regarding payment of rent in Court. In cross-examination he has deposed that the rent collector of the respondent used to sit in the same building. He had taken the above shop on rent from 1-1-1983. He paid rent from January, 1982 to July, 1983 to the rent collector and obtained receipt. According to him, he paid rent for July and August to the landlord himself. He never paid rent to the landlord before that. The rent collector refused to accept rent for the month of August 1983, hence he went to the owner personally. He has admitted a suggestion that he had not offered rent for August, 1983 to the rent collector and it may have been missed in mentioning the same in my written statement and affidavit. It may be inadvertent mistake. He sent rent for August, 1983 by money order on 15-10-1983. He has denied a suggestion that the landlord had gone to him before filing of this case to enhance the Pagri and rent. Again stated, that it is written in the affidavit that application has asked him to enhance rent and Pagri before filing of this case. From the above evidence produced by parties it is clear that the rent for August, 1983 was offered by the appellant to rent collector Masoodullah, in September, 1983 but he refused to accept the same, as according to him, the opponent had sub-let the premises to one Javed. It is also an admitted position that the opponent had sent rent of August and September, 1983 by money order but the same was refused by Masoodullah rent collector of the respondent. It has also been admitted by the respondent and his rent collector that appellant had deposited rent for August and September, 1983 in the Court in the month of November, 1983, the appellant has produced- M.O. Coupons as Exhs. O/1, O/2 receipt for 3 months rent Exh. O/3. It will be worthwhile to mention here that the ejectment application was filed on two-fold grounds i.e. Sub- letting and default. As far as the ground for sub-letting was concerned, the same was decided - against the respondent. However, the ejectment was allowed on the ground of default only.
15. 1987 CLC page 442, it was observed by this Court that:- "The rent was offers tl by the tenant to landlord's rent collector and same was not accepted by hint, case of wilful default nr>t proved against tenant, and the Rent Controller held, was justified in exercising discretion in favour of tenant in not ordering the ejectment.'
16. 1984 CLC 2769, it was observed by this Court that:- "The appellant's refusal to accept rent from the respondent being without justification, would not entitle her to seek ejectment of the respondent on the ground of default in payment of rent. This finds further support from well-known maxim of law `no man can take advantage of his own wrong'. Accordingly the appellant who refusgd"to accept rent cannot be permitted to take advantage of her refusal and sue the respondent for ejectment on the ground of default in payment of rent."
17. 3.In the case of Inayatullah v. Zahiruddin, 1987 SCMR 1313, wherein the High Court had observed that:-- "In cross- examinati-s, ;?n:: petitioner/respondent had admitted that the"X _rent of two months was sent to him by the tenant through money order and the same was returned by him as refused and unpaid however, he has not uttered a single word about the alleged wilful and deliberate 5 --'' default. This shows that the respondent deliberately created di!-culties , ins the way of the appelrant by not accepfng the. Rent m the hope that same omission or slip on the part of the appellant may enable him to crave out a ground for their eviction. And the appellants realised the situation and being conscious of their .Liability continued to pay rent properly. The conduct of the appellants indicates no element of negligence on their part. As soon as respondent refused to receive the rent, the appellants reasonably adopted the alternate prescribed mode of tendering the rent by way of deposit in the Court and, therefDre, appeal of tenants was allowed and the order of Rent Controller was set aside:'
18. The landlord filed appeal before Hon'ble Supreme Court and their Lordships were pleased to agree with the observations of the High Court, and the appeal was dismissed.
19. As far as the decision in the case of Fayaz Ahmed Khan v. Dr. Aqeet Ahmed, 1987 CLC 364, relied upon by the learned counsel for the respondent was concerned it was observed that:- "Once it was proved that the tenant had failed to pay rent by the specified time, payment made subsequently to the landlord, would not entitle him to get application for eviction dismissed on the ground that the rent had been paid."
20. "That the rent was sent by money order in the month of April, 1980 or deposited in Court after default was committed is of little significance. The tender of rent contemplated under section 15(2)
(ii) of the Sind Rented Preniises Ordinance, 1979, should be within 15 days of the agreement or within 60 days of the rent becoming due."
21. There is no cavil with the principles laid down in the case of Fayaz Ahmed Khan and Malik-un-Nissa Begum. However looking to the facts and circumstances of the case it is clear that the rent was offered to the rent collector of the respondent and he refused to accept the same, on the ground that the shop in dispute had been sub-let to one Javed which fact the landlord could not prove before the Rent Controller, and issue regarding sub-letting was decided against him. Neither any cross-objection was filed nor this point of sub-letting was taken up in this Court by the learned counsel for the respondent. It is, therefore, clear that Masoodullah A rent collector of the respondent had refused to accept rent on false pretext and, as such, the same was sent by the appellant by way of money orher. Of course, the rent for August and September was sent on 26th September, and 19th October, which was refused and, therefore, it was deposited, in Court in November, 1983, as admitted by the respondent and his rent collector. There was delay of few days in depositing the rent but it was the respondent and his rent collector who avoided to accept the rent and their conduct shows that they had deliberately created difficulties in the way of the appellant on the false pretext by not accepting the rent in the hope that some omission or slip on his part may enable them to crave out a ground for eviction. From the circumstances of the case, and the admissions made by the respondent and his rent collector Masoodullah it is proved that it was not a case of wilful default. In the above circumstances and the B case-law cited by the learned counsel appearing for the appellant, I feel inclined to exercise discretion in favour of the appellant, as it was not a case of wilful default. I, therefore, allow this-appeal, set aside the order of the Rent Controller and dismiss the ejectment application with no order as to costs.