' The respondent filed two applications for ejectment against the appellant in respect of two shops on the ground floor of building bearing No,2-C, Commercial Area, Defence Housing Authority, Karachi. Both the cases were identical and, therefore, the impugned order is also the same. This judgment will dispose of both the appeals. The allegation against the appellant was that he has defaulted in payment of rent. The learned Controller held that default has been committed and ordered for the ejectment. It was alleged that the appellant has stopped payment of rent from November, 1984 which was denied by him. It was pleaded by the appellant that upto September, 1984 he was pressing the respondent to execute a formal agreement of lease but she deliberately avoided to do so. She wanted to sell the premises but when the appellant expressed his intention to purchase the same, she stopped to acknowledge the monthly rent for the month of September, 1984. The rent was sent by money order which was accepted but after October, 1984 she refused to accept the rent tendered through money order. The respondent changed her residence but did not inform the appellant of the same. The appellant continued to tender rent through money orders which were returned back either due to the respondent's refusal or due to change of residence. The rent was not deposited in Court as required but such deposit was made after an order was passed for deposit of tentative rent under section 17(8) of the Cantonments Rent Restriction Act. On the basis of the money order coupons and receipts two statements have been submitted to connect them with the period for which rent was remitted from time to time. According to the respondent in most of the cases remittance receipts have not been produced and from the money order coupons it seems difficult to connect them with the month for which rent is alleged to have been paid. The question arises whether in spite of such tender the appellant could be in default.
According to Mr. Khalid Ishaque, the respondent had changed her residence and shifted to a new address in November, 1984 but it was not communicated to the appellant. In these circumstances the rents remitted from time to time were returned. The learned counsel has referred to 1987 SC 1313 and 1987 CLC 378, where it was observed that where the landlord creates default and does not accept the rent it will amount to a technical default and ejectment should not be granted. On the other hand Mr. Moinuddin, the learned counsel has contended that the remittance has not been established and rent from September, 1984 to March, 1985 was not remitted every month. The consolidated amount of Rs,2,800 is alleged to have been remitted on 2-11-1985, therefore, there is a clear default. Ex.17 is the money order coupon and read with Ex.20 it seems to be remittance of rent from September, 1984 to March, 1985 remitted on 2-11-1985. This was the rent for seven months which was refused. In such a situation it should be examined whether rent of September, 1984 to March, 1985 was remitted earlier or not. The respondents' attorney admits to have received rent upto November, 1984. The appellant must first establish remittance for rent from December, 1984 to March, 1985 before remitting it yin a consolidated -form. The appellant has relied on- Exs.3, 4, 5 and 7 to show that monthly rents were remitted. Thereafter under Exs.08 Rs,2,800 was remitted on 19-5- 1985 towards rent for November, 1984 to May, 1985. Again by Ex.09 Rs,1,600 was remitted but the date of remittance is not legible. Thereafter rent for July, 1985 to August, 1985 was remitted by Ex.10 and 11. On 1-9-1985 the appellant remitted Rs,2,000. By Ex.013 the rent for October, 1985 was remitted on 3-10-1985 and thereafter by Ex.15 remitted Rs,2,800 on 1-9-1985, which would have been for the previous months. Ex.16 is the remittance for September, 1985 and Ex.17 is the consolidated rent for September, 1984 to March, 1985 remitted on 2-11-1985. Therefore prior to sending this money order rent was remitted from time to time which was refused or returned. This shows that the appellant was tendering rent prior to remitting consolidated rent.
2. Mr Moinuddin has referred to S.M. Zaffar, Ziauddin, PLD 1981 Lah. 271, where it was held that refusal of landlord from accepting rent does not absolve the tenant from payment of rent. He must pay the entire rent successively every month. The present case is distinguishable on facts. In the referred case the tenant had stopped payment of rent. But here rent was remitted every month and after few months the consolidated amount was also remitted. In these circumstances, the learned Controller should have exercised discretion in favour of the appellant as the default seems to be technical and due to change of address which was not intimated to the appellant. The impugned order is set aside and the appeal is allowed.