1. ' Heard Mr. Jalib Choudhary, for the appellant as also Mr. Amanullah Khan, for the respondent.
2. ' The present appeal is directed against the impugned ejectment order which is passed on the basis of default in payment of monthly rent.
3. ' Admittedly the first default in payment of rent pertains to the months of May, June, July and August, 1990 while the second default pertains to the months of May and June, 1991.
4. ' Mr. Jalib Chaudhary contended that for the months of May, June, July and August, 1990 the payment of rent was made in cash to the respondent/landlady but no receipt was issued for such payment, while the rent for the months of May and June was sent through money orders which were received under protest by the landlord.
5. ' Mr. Jalib Chaudhary submitted that under section 10 of subsection (2) of the Sindh Rented Premises Ordinance it was the duty of the landlady to issue receipt acknowledging the payment of rents for the months of May, June, July and August, 1990. He further contended that even the landlady did not issue notice to the appellant in respect of non-payment of rent for the aforesaid months. Reliance is placed on PLD 1985 Kar. 741 and 1982 CLC 217. Mr. Jalib Chaudhary also referred to the previous conduct of the landlady whereby receipts were not being issued regularly.
6. So also the rent was being paid for the months together in lump sum. Reliance is placed on 1986 CLC 1778.
7. ' On the other hand Mr. Amanullah Khan submitted that besides the words of the appellant, there was no other oral or documentary evidence to support the contentions that prima facie the rent for the months of May, June, July and August, 1990 was paid in cash to the respondent/landlady. He submitted that since the month of March, 1978 to the month of April, 1990 the respondent/landlady had been regularly issuing receipts to the appellant, he referred to Exh.O/1, which is receipt for the month of March, 1978 and ExhA/2 which is receipt for April, 1990. He further submitted that onus was on the appellant to establish beyond any doubt that the rent for the months of May, June, July and August, 1990 was paid in cash to the respondent/landlady. He further submitted that the previous mode of payment cannot be made an excuse for default in payment of rent. He has placed reliance on:--
(1) 1986 MLD 948 and 368;
(2) PLD 1987 Lah. 47;
(3) 1986 CLC 726 and 1776;
(4) PLD 1982 SC 465;
(5) 1982 CLC 1618;
(6) 1980 SCMR 506 ' and latest decision of this Court reported as 1992 CLC 735.
8. ' 1980 SCMR 506 lays down as under:-- "S.13(2)---Ejectment---Default in payment of rent---Parties cannot contract themselves out of provisions of law--Nor can any party plead a practice contrary to law---Tenant required by law to pay rent by 15th of every month---No contract or practice can whittle down such law---Mere fact of landlord having accepted delayed payment in past, held, cannot be said to have given rise to a practice authorising tenant to make delayed payment in derogation of provisions of S.13, Ordinance, VI of 1959."
9. ' The latest authority of this Court reported as 1992 CLC 735 reads as under:-- "Ss. 10 & 15(2)(ii)---Mode of payment of rent---Default in payment of rent---Tenant had selected mode of payment of rent at his own convenience, sometimes he tendered rent personally to attorney of landlord and sometimes adopted other method and he started depositing rent in Office of Rent Controller without any justification with a view to create problems for landlord--- Such deposits of rent did not constitute valid tender of rent.
10. ' Ss. 5, 10 & 15(2)(ii)---Default in payment of rent--No written agreement of tenancy existed between the parties, tenancy between parties was thus to be governed by oral agreement and rent was to be deposited by tenant within sixty days after it had become due---Tenant admittedly deposited rent at two occasions after expiry of prescribed period of sixty days---Tenant who admittedly had committed two defaults in payment of rent, must suffer consequences thereof.
11. ' S. 15(2)(ii)---Default in payment of rent---Once tenant had committed default by not paying or tendering rent within prescribed period, he would be liable to be ejected notwithstanding subsequent payment of arrears of rent."
12. In view of the above case-law, I have come to the conclusion that the contentions raised by Mr. SA.
13. Jalib learned counsel for the petitioner carry no force. Prima facie there appears no evidence or ground to justify the default in payment of rent for the months of May, June, July and August, 1990, and for the months of May and June, 1991. The view expressed by this Court in the above-quoted authority 1992 CLC 735 is fully applicable to the facts of this appeal.
14. ' Accordingly, the present appeal is hereby dismissed in limine. Three months time is granted to the appellant to hand over vacant possession of the premises in question from the date of the order.