' An application under section 15 of the Sindh Rented Premises Ordinance, 1979, was filed on 21-4- 1988 by the respondent/landlord for ejectment of the appellant/tenant from the premises in question on the ground of non-payment of rent from November, 1982. The rent was claimed at the rate of Rs,15 per month. In the written statement, the tenancy was admitted but the appellant took up the plea that the rate of rent was Rs,5 per month and Rs,8.25 per month was paid as water charges. It was also the case of the appellant that previously her husband was the tenant and, after his death, she became the tenant. Her case was that she had paid rent upto September, 1982, receipt whereof was acknowledged but when she offered the rent for the month of October, the respondent refused to receive the rent whereupon the appellant remitted the rent through money- order but the same was also returned undelivered and thereafter she started depositing rent in Misc. Rent Case No, 356/83 at the rate of Rs,5 per month and Rs,8.25 per month as water charges. It was also pleaded that during the lifetime of the husband of the appellant an ejectment application was filed by the respondent but the same was dismissed.
2. On the basis of documentary evidence, the Rent Controller came to the conclusion that the rate of rent was Rs,5 per month. On the question of default, the Rent Controller arrived at the finding that default had been committed for which the appellant was liable for ejectment. The relevant part of the impugned ejectment order dated 26-3-1989 is as follows:-- "Admittedly the opponent has not paid the rent after October, 1982 and onwards to the applicant, although she has taken plea that rent was offered by her but applicant refused to receive the same but she has not stated in her affidavit-in-evidence that in which month the above rent was offered and in whose presence she offered the rent. From the perusal of photostat copy of money- order coupon Annexure 'B' it is clear that she remitted the rent on 6-8-1983 whereas the rent for the month of October, 1982, was due against her in the month of November, 1982. In those circumstances, it is clear that the rent was remitted by the opponent through money-order after inordinate delay of about 9 months. If the rent was offered by the opponent within time and applicant refused to receive the same then why the opponent remained silent for about 9 months.
' In view of my above discussion, I am of the opinion that the opponent has committed wilful default in payment of rent.'
3. Being aggrieved by the order of ejectment dated 26-3-1989, the appellant filed this rent appeal. I have heard at length the arguments of Mr. Dawan Bashir Ahmed, learned counsel for the appellant and Mr. Waqar Lodhi, Advocate for the respondent.
4. In the written statement, the plea was taken by the appellant that when the money-order was returned by the applicant, she started depositing the rent with the Rent Controller in Misc. Rent Case No, 356/83 and thereafter she had been depositing monthly rent regularly in the aforesaid Misc. Rent Case at the rate of Rs,5 per month as rent and Rs,8.25 per month as water charges. This plea has been confirmed by the appellant in her evidence before the Rent Controller. The stand taken by the appellant that she had been depositing rent regularly in Misc. Rent Case No, 356/83 has not been controverted. The Rent Controller has also not given any finding against the appellant on this point. However, as is evident from the impugned order, relevant part whereof has been reproduced in the earlier part of this judgment, the Rent Controller has decided the question of default on the basis of the photostat of the money-order which shows that the appellant had remitted the rent on 6-8-1983 whereas the rent was due from November, 1982. According to the Rent Controller, therefore, there was delay in the tender of rent from November, 1982, till August, 1983, when the rent was tendered through money-order. As observed earlier, the ejectment application was filed on 21-4-1988 and, therefore, the default had taken place, according to the impugned order, in respect of period for which the rent had already become time-barred. The question for consideration in this rent appeal is whether the ejectment of a tenant can be ordered in respect of default in the payment of rent for a period which has become time-barred and which cannot be recovered by the landlord on account of the Law of Limitation.
5. Mr. Dawan Bashir Ahmed, learned counsel for appellant tenant has relied upon the following judgments in support of the appeal:--
(a) Ashfaqur-Rehman v. Muhammad Afzal (PLD 1968 SC 230). In this case it was held by the Supreme Court that a Rent Controller acting under section 13 (6) of the Rent Restriction Ordinance, 1959, cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation.
(b) Muhammad Aslam v. Pakistan Steel (1990 CLC 849). A Division Bench of this Court in this decision, agreeing with other judgments in similar matters, declared the order of the Rent Controller under section 16 (1) of the Sindh Rented Premises Ordinance, 1979, for deposit of arrears of rent for more than three years preceding the filing of the rent application as an order without legal authority and remanded the case to the Rent Controller to decide the application under section 16 (1) afresh.
(c) Shah Muhammad v. Muhammad Rafiq (PLD 1990 Lah 76). In this case, a learned Single Judge of the Lahore High Court referred to various decisions of the superior Courts of Pakistan and held that under section 13 (6) of the Rent Restrictions Ordinance, 1959, the Rent Controller could only direct deposit of rent arrears for three years prior to the date of filing of ejectment application and not beyond that period.
' On the other hand, Mr. Waqar Lodhi, learned counsel for the respondent, relied upon a judgment of a learned Single Judge of this Court in the case of Mohiuddin v. Muhammad Din (1986 CLC 543) where it was held that once a default was made by the tenant in the payment of rent, such default could not be washed away by subsequent tender of rent until and unless the landlord accepted the same and thereby waived the default.
6. The point which arises for consideration in this appeal does not relate to orders that can be passed under section 13 (6) of the Rent Restriction Ordinance, 1959, or section 16 (1) of the Sindh Rented Premises Ordinance, 1979, As observed earlier, the question requiring consideration and decision in this appeal is whether under section 15 of the Sindh Rented Premises Ordinance, 1979, ejectment of the tenant can be ordered on the ground that the tenant had defaulted in the payment of rent in respect of a period rent whereof had become time-barred, that is, the landlord could not take legal proceedings for recovering such rent on account of the Law of Limitation. The decisions relied upon by the learned counsel for the appellant are not directly on this point. The decision relied upon by Mr. Waqar Lodhi also does not decide this question.
7. In the instant case, there is no finding by the Rent Controller that them is any default in the payment of rent after August, 1983. Ejectment has been ordered as, according to the Rent Controller, rent from October, 1982, till July, 1983, had been tendered through money order on 6-8- 1983. It may be repeated here that the ejectment application had been filed on 21-4-1988. The landlord, therefore, could not have filed a suit for recovery of this amount in April, 1988, as the rent for the said period had become time-barred. In April, 1988, the rent for the defaulted period was not lawfully due. In my view, therefore, as the rent for the defaulted period was not lawfully due and it could not be recovered through legal proceedings, ejectment of the tenant could not be ordered under section 15 of the Sindh Rented Premises Ordinance, in such a case, on the ground that default had been made in the payment of rent for the period in question. If the rent for the period had become time-barred and it could not be recovered through legal proceedings, the application under section 15 of the Ordinance, 1979, on the ground of default in the payment of such time- barred rent could not be maintained under the law. As observed earlier, in 1983, the appellant started depositing rent regularly in Misc. Rent Case and this has not been controverted by the respondent. As a result, the impugned order is liable to be set aside.
8. F.R.A. No, 362/89 is accordingly allowed and the impugned order dated 26-3-1989 of the Rent Controller ordering ejectment of the appellant on the ground of default is set aside.
There will be no order as to costs.