' Appellant being aggrieved by the order passed by the 3rd Senior Civil Judge/Controller (South)
Karachi, dismissing his rent case has preferred this appeal. Briefly the facts are that the present appellant had filed the Rent Case No,5462/81 subsequently re-numbered as 1186/85 under section 15 of Sindh Rented Premises Ordinance, 1979. The case of the appellant is that the respondent is their tenant in respect of Godown No,O.B./24 on monthly rent of Rs,125 payable in advance by 5th of every calendar month' but the respondent has been irregular in payment of rent. It is further claimed that the rent for the months of May and June 1981 was paid on 8-8-1981 and also that the rent for the months of July, August and Septemebr 1981 were tendered through Cheques No,AKK 244426, 244427 and 244428 dated 26-10-1981 drawn on Habib Bank Ltd. Received by the appellant on 5-11-1981. The rent for the months of October, November and December, 1981 had not been tendered till the time of filing of the rent case i,e. 16-12-1981. The respondent resisted the appellant's case and filed his written statement wherein he pleaded that the rent was being collected by the appellant according to his own will and no time for payment of monthly rent was fixed. He denied that the was in default in payment of rent and claims that he had been the tenant since May 1964 and regular in payment of his rent. It is further the case of the respondents that the appellant had adopted the practice of collecting rent through his representative for which he used to send the bills in advance which later were signed by the appellant on the dates much later than the dates on which the actual payments were made. He further claimed that the rent for the months of May and June was paid on 2-6-1981 through cheques at the time the representative of the appellant came to collect the same. With regard to rent for October, ' November and December, 1981 the respondent contended that the same were paid through cheques dated 30-11-1981, 5-12-1981 and 19-12-1981 and as such no default has been committed. In the written statement, however, nothing is said by the respondent with regard to payment of rent for the months of July, August and September. The learned Rent Controller, on these pleadings of the parties framed. The following points for determinations:-
(1) Whether the opponent has committed default in payment of rent as alleged;
(2) What should the order be?
2. Shaikh Siddiq Ahmad, Mahar Elahi and Shaikh Sultan Ahmad filed their affidavit-in-evidence on behalf of the applicant and submitted the two receipts as Exh.A/1 and three original cheques as Exhs.A/3, A/4 and A/5. On behalf of the respondent Sohail Abdul Ghani filed his affidavit-in- evidence and produced 15 receipts as Exh.O-2 to 0-16. Lie has also produced 2 cheques books containing counter-foils as Exhs.O/17 and 0/18 and lastly he produced a money order coupon from as Exh.O/19. The learned Rent Controller arrived at the conclusion that the rent for the months of May to September 1981 was duly paid and there being only one day's default in payment of rent for the month "f October, 1981, condoned the same and dismissed the rent case. The appellant, therefore, preferred this appeal.
3. I have heard the learned counsel for the parties. It may be observed that the fact mentioned in the application under section 15 of the Ordinance to the effect that rent for the months of July, August and September was tendered through cheques dated 26-10-1981 has not been denied.
Learned counsel for the respondent has placed on record before the Rent Controller the cheque book containing the counterfoils (Exh.O/18). It contains the counterfoils of cheques No,244426, 244427 and 244428. These counterfoils show that the cheques were issued on 26-10-1981, each for Rs, 125 being rent for the months of July, August and September, 1981 respectively. The original cheques have also been placed on record by the appellant as Exhs.A/3, A/4 and A/5. These 3 cheques contain an endorsement on the reverse showing that the same were received by the appellant on 5-11-1981. Mr. S.A. Majid, learned counsel for .The appellant, from these facts has argued that the rent for the month of July 1981 would be payable latest by 10th of August and allowing the grace period of 60 days was provided in the Ordinance, the same would fall due on 29-9-1981. From this learned counsel for the appellant has further submitted that even if it be considered that same was tendered on 26-10-1981, the respondent would be in default for payment of this month's rent. He has further pointed out that this aspect has not been considered by the Rent Controller but merely because these cheques were tendered, Rent Controller has wrongly held that this rent was tendered within time. Mr. Rahmat Elahi, learned counsel for the respondent has not been able to meet this aspect of the case but he has submitted that because the cheques were sent and accepted by the appellant, it would be deemed that he has waived his right to sue on the ground of default and it amounts to waiver on his part. He has further submitted that it had been the practice of the appellant to accept the rent through cheques at his own will and whenever he sent the money to collect the same. He has further submitted that by this act and conduct of the appellant and by the fact that the appellant had not encashed the cheques issued on 26-10-1981, he has deliberately caused obstruction in way of the tenant in order to create grounds for ejectment. He has placed reliance on the cases Inayatullah v. Zahiruddin (1987 SCM R 1313), Mrs. Hameeda Malik v. Rifat Jahan Begum (1985 M LD 121) and Iftikhar Hussain Khan v. A. Karim (1984 M LD 520). The record of the case shows that the respondent himself has produced the rent receipts for the period of January, 1980 to April, 1981 which all show that the rent was being paid every month in cash. These receipts also show that these were issued in the form of bills one day in advance of commencement of each calendar month and then the same was signed by way of receipt by the landlord on the date when the rent was being received. This fact goes to belie the contention of the respondent that the practice was that the appellant used to receive rent through cheques which was the established practice. On the contrary this shows that the payment through cheques was made first time from May 1981 as alleged in the rent case. In this view of the matter the above-cited case-law would not be applicable to the present case as there is nothing on record to suggest that any efforts were made by the respondent to pay the rent which were thwarted by the appellant. The very fact that the rent for the month of July 1981 was tendered through cheque on 26-10-1981 itself goes to show that the default had been committed by the respondent. The mere fact that this cheque was received by the appellant would not absolve the respondent of the penalty. In the case of Tar Muhammad Jano & Co. v. Tahir Ali and others (1981 SCM R 93) it has been held by the Hon'ble Supreme Court as under: "7. We are not impressed by this contention. When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due.. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reasons for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incure the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
' It may further be observed that receipt Exh.A/1 shows that the cheque dated 2-6-1981 pertaining to the payment of rent for the month of May 1981 was received by the appellant on 8-8-1981, which too is beyond the period of 60 days, as the rent for the month of May 1981 would be payable, considering concession of 60 lays, on 30-7-1981_ It is further pointed out by the learned counsel for the appellant that subsequently the respondent started paying the rent in the Court in Misc. Rent Case No,511/82. The statement of account has been produced in the present case by the Advocate for the present respondent which shows that the payment of rent was made in the Court for the period commencing October, 1981 and till today no attempt has been made by the respondent to make payment of rent for the months of July, August and September.
4. In view of the above discussion it is established that the respondent has committed default regarding payment of rent for the month of July 1981 and also for the subsequent months of October, November and December as there is nothing on record to show if cheques for these latter months were delivered to the appellant. I, therefore, allow this appeal, set aside the order of the Rent Controller and allow the appellant's application under section 15 of the Ordinance directing respondent to hand over the vacant possession of the godown No,O.B/24 to the appellant within 2 months of the date of this order. There will be no order as to costs.
Appeal,accepted.