1. ' The facts giving rise to this appeal are that the present respondent had filed the rent case for ejectment of the appellants on the ground of default for the period commencing from May, 1988 till filing of the rent case on 10-10-1990. As against this the case of the present appellants is that the respondent landlady had previously also filed a case for ejectment against them which was compromised on enhancement of rent and that from May 1988 the attorney of the respondent had started demanding enhanced rent and refused to accept the rent. The appellants' case further is that on such refusal they sent the rent through money order on 10-8-1988 which, too, was refused and, therefore, they started depositing the rent in Court in M.R.C. No 791 of 1988. The respondent filed affidavit-in-evidence of her attorney while the appellants filed affidavit-in-evidence of appellant No,1 and produced photostat copies of money order coupon, rent deposit challans, postal receipt and earlier rent case. The only issue settled by the Rent Controller was with regard to default and finding the same against the present appellants the rent case was allowed and the appellants were ordered to hand over the vacant possession to the respondent within sixty days. Being aggrieved the appellants have preferred this appeal.
2. ' I have heard Mr. Shafaat Hussain, Advocate for the appellants. It is an admitted position that at present the monthly rent for the two shops is a total of Rs, 400. It is also admitted that rent for the months of May, June and July 1988 was sent through money order dated 10-8-1988. There is nothing on the record except oral word of appellant No,1 that he had tendered the rent which was not accepted by the attorney of the respondent. The attorney of the respondent in his affidavit-in- evidence has denied this fact. In these circumstances the burden is on the appellants to prove that they had tendered the rent but the same was refused. As under section 10 of the Sindh Rented Premises Ordinance, 1979 it is the duty cast upon the tenant to tender the rent directly to landlord and in case he avoids to accept this he may send the rent through money order or deposit the same in Court. There being no corroborative evidence given by the appellants to prove the fact, there was no occasion for them to tender the rent through postal money order. Again it may be observed that the appellants have produced a photostat copy of the postal money order coupon with the affidavit-in-evidence and not the original. No reason has been given as to why the original coupon was not produced. However, this photostat copy of the money order coupon does not bear any endorsement from postman with regard to refusal of the same by the respondent. This money order coupon also does not bear the round seal of post office. In these circumstances this coupon, too, cannot be said to have been proved by the tenant. Admittedly the rent was deposited in Court for the first time on 4-9-1988 for four months i,e, May to August 1988. The appellants have, therefore, clearly fallen in default even if grace period of sixty days is added to it. The rent for the month of May could be paid within a period of sixty days from the date it became due. This period of sixty days would expire on 30th July, 1988.
3. ' Mr. Shafaat Hussain, learned counsel for the appellants has then submitted that the period of sixty days should be counted from the 10th of the following month i,e, in case of the rent for month of May 1988, the sixty days should be counted from the 10th of following month as provided under section 10 of the said Ordinance and thus, money order sent on 10-8-1988 would be within due time. Even if this contention of the learned counsel is accepted, the sixty days from 10-6-1988 would expire on 9-8-1988 and not on 10th. Therefore, also he would be in default. It may be observed that the said period of sixty days is permitted in the statute by legislature by way of grace as an allowance to bona fide human error, forgetfulness, mistake or inadvertence. In the case of Syed Khadim Ali Shah Bukhari v. Pakistan Burma Shell Ltd. (1986 CLC 1487) Saleem Akhtar, J. (as his Lordship then was) has held:-- "By granting grace period of 15 days or 60 days as the case may be, the legislature has given allowance to bona fide human error forgetfulness, mistake or inadvertence. No sooner it crosses the specified period it no longer remains bona fide error but turns into negligence. Even the continued bona fide error beyond the specified period can be condoned provided the tenant establishes that it was due to reasons beyond his control and brings his case within the principle laid down in Shaheryar Ali Pataudi's case PLD 1985 Kar.
47. The test is that if the default was avoidable it cannot be condoned but if it was not avoidable and had occurred due to reasons beyond the control of the tenant, then discretion should be exercised in his favour."
4. ' In the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance two provisions are enacted with regard to payment of rent and default. Section 10 (1) of the Ordinance reads as under: "10. Payment of rent---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due."
5. ' Section 15 (2) (ii) of the Ordinance provides as under: "15. Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.--
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that--
(i) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(ii) The tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment."
6. (Underlining is done by me)
7. ' A perusal of the above provisions would show that in the first instance section 10 provides the mode of payment of rent and also that the rent for the month for which it is due would not be paid later than tenth of the month next following. This provision by itself would not mean that the rent becomes due for the relevant month on 10th. This period of ten days provided by the Legislature is by way of an allowance in order to provide convenience to the tenant in payment of rent. This provision will not have the effect of overriding the provision of section 15 (2) (ii). This clause (ii) is divided into two parts. The first part deals with the grace period of fifteen days allowed after expiry of time fixed for payment of rent in agreement while the second part deals with a situation where no agreement is made between the parties as to the date or time for payment of rent in such cases a grace period of sixty days is provided from the date for the period for which the rent remains payable as held in the case of Muhammad Baqir Qureshi v. Mst. Razia Bcgum (1981 SCM R 18). Thus it may be said that as regards the grace period allowed by sixty days in the above-cited clause (ii) of the section 15 (2) of the Ordinance the same is to be counted from the date the rent becomes due. In the case of Muhammad Yousuf v. Muhammad Saghiruddin Qureshi (1987 CLC 76).
8. A learned Single Judge of this Court has observed that the rent for the months becomes due on the expiry of each month which would mean the last date of the month and, therefore, period of sixty days is to be counted from the last date of the month for which the rent is due. Similarly in the case of Adam Jee v. Haji Ghulam Ali (1986 CLC 2376), it has been held that extra sixty days provided to pay the rent due were to be counted from period for which rent was payable.
9. ' The object of allowing this grace period of 15 or 60 days in section 15 (2) (ii) of the Ordinance is, as held in the case of Syed Khadim All Shah Bukhari as discussed above. If the analogy of grace period to be counted from the tenth of the following calendar month is to be accepted then it would be inconsistent with the first part of section 15 (2) (ii). For example if the parties by mutual agreement contemplate the rent to be paid by 7th of each month and then the tenant commits default in such payment, he would be entitled to grace period of not only the remaining 23 days of the said month but also the ten days of the following calendar month and a further period of 15 days as provided in the above provision of Section 15 of the Ordinance which would mean that he would be entitled to a total grace period of 48 days. It cannot be the intention of the Legislature.
10. Even otherwise the rent due would mean the rent due for the particular month and it becomes payable on the expiry of the month subject to any stipulation between the parties by mutual agreement or any grace period allowed by law which in the present case would be sixty days as there is no agreement.
11. ' In view of the above discussion, I find no merits in this appeal which is dismissed in limine.