' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 29-8-1988 passed by Mr. Iqbal Ahmad, IlIrd Senior Civil Judge and Rent Controller
(East) Karachi, by which he directed the eviction of the appellant from the disputed premises within a period of 30 days.
2. The appellant is a tenant of respondent MRs, Mirat-ur-Ruqayya in respect of residential premises, being Flat No,1 in the building situated on Plots Nos, 779 and 780, Commercial Area, PECH Society, Karachi, at a monthly rent of Rs,300 excluding conservancy, water, electricity and gas charges, payable in advance on first of each English calendar month. He defaulted in payment of rent with effect from 1-4-1985 and was in arrears for three months when the ejectment case was filed against him on 24-7-1985. It is also alleged that the appellant who was collecting rent from other tenants of this building on behalf of respondent during her stay at Islamabad misappropriated a sum of Rs,13,194.
3. The appellant resisted his eviction on various grounds. He has controverted the allegations based on facts. According to him he had paid a sum of Rs,1,600 to MRs, Tanveer Kazi daughter of respondent who used to collect rent on her behalf, being the rent for the months of December, 1984 to April, 1985 and a further sum of Rs,100 as part payment of the advance rent of May, 1985. It was also pleaded by him that a sum of Rs,250 was lying as deposit with the respondent which she had received at the time of inception of tenancy in June, 1973. The appellant claimed to have offered rent to MRs, Tanveer Kazi for the months of May and June, 1985, but she refused to accept the same and consequently he remitted it through money order, which too was refused and it was in these circumstances that he started, depositing the arrears of rent and monthly rent due in the office of Rent Controller.
4. The parties went to trial on the following issues:-
(i) Whether opponent has committed wilful default in payment of rent?
(ii) What should the order be?
5. The respondent examined her daughter/attorney MRs, Tanveer Wahid Kazi (P.W.1), who also produced relevant documentary evidence. To rebut this evidence the appellant examined himself (D.W.-1), and then closed the side.
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided issue No,1 against the appellant and consequently directed his eviction. It is in these circumstances that the present appeal has been filed. During the pendency of this appeal the respondent died and consequently her legal representatives were brought on record.
7. I have heard Mr. Abdul Waheed Kanjoo, learned counsel for the appellant and Miss Rashida Siddiqia, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. Admittedly the rate of rent of the disputed premises is Rs,300 P.M. According to the respondent the rate of rent is Rs,300 P.M. Excluding conservancy, water, electricity and gas charges. The appellant has, however, disputed this position by stating that electricity consumption charges are paid by the tenants of the building, while rest of the above charges were paid by the respondent/landlady. MRs, Tanveer Wahid Kazi (P.W.1) has, however, made the following admissions which support the plea taken by the appellant:-- "It is fact that there is one meter of gas for whole building. It is correct opponent used to pay gas charges from the amount collected as rents. It is correct that there was common bill for gas dues to opponent. The opponent used to collect Rs,50 as gas charges from each tenant separate from rent and he never gave that amount to my mother. On the contrary he used to deduct the amount from rent as gas charges. Above facts I have not mentioned in my ejectment application as well as affidavit-in-evidence. In these three years I have not charged any gas payment but tenants are paying gas charges directly to the company. I have not authorised any body to collect gas charges and to pay to the company."
9. It is thus obvious that MRs, Tanveer Wahid Kazi (P.W.1), who is daughter and attorney of the respondent has tried to magnify the case and to improve upon it to this limited question of quantum of rent.
10. Admittedly there is no agreement of tenancy in writing between the parties. In para 2 of the application for ejectment filed under section 15 of the Sindh Rented Premises Ordinance, 1979, the respondent has pleaded that the rent was payable in advance on first of each English calendar month. The appellant, although disputed this position in para 2 of his written statement, but admitted about this mutual agreement in his cross-examination in the following words:- "It is fact that rent was payable in advance for each month."
11. MRs, Tanveer Wahid Kazi (P.W.1), who is daughter and attorney of the respondent has testified about the defaults committed by the appellant in payment of rent with effect from 1-4-1985. She has, therefore, discharged the burden, which was then shifted to the appellant, who as his own witness (D.W.1) has produced the receipt (Exh.4/C), which reads as follows:-- "Received. Rs,1,600 from Mr. Joseph Dean for rent. MRs, Kazi, 14th April, 1985."
' It is the case of the appellant that this receipt (Ex.4/C) was in respect of rent for the months of December, 1984 to April, 1985, with extra one hundred rupees towards part payment of rent of May, 1985. The appellant, however, took a somersault in his cross-examination by stating as follows:- "I think I had paid the rents in April, 1985 as advance rents for the months of April, 1985 to August, 1985, i,e, 5 months rent amounts to Rs,1,500."
12. Thus, the appellant has taken inconsistent stands at different times. Admittedly there was exchange of legal notices prior to this litigation. The notice sent on behalf of respondent dated 26th June, 1985 (Exh.5/C) is on record. At page 2 of this notice the respondent had alleged default of payment of rent for April and May, 1985. The appellant replied to this notice vide (Exh.A/3), in which he had not taken the specific plea of payment of Rs,1,600 towards rent and an advance of Rs,100.
The receipt (Exh.4/C) does not show that this amount was paid by the appellant towards the rent of the disputed premises. The period for which the rent was paid is also not mentioned in it. In fact the receipt (Exh.4/C) is in the form of acknowledgment. Admittedly the appellant was also a rent collector of the respondent and the record shows that he had not fully accounted for the amount of rents collected by him from other tenants on behalf of the respondent. The explanation furnished by MRs, Tanveer Wahid Kazi (P.W.1) that this amount was received by her towards the satisfaction of amount of rent collected by the appellant on behalf of the respondent, therefore, rings true. A cursory glance at this acknowledgement (Exh.4/C) is enough to show that it was an acknowledgement of an amount of Rs,1,600 collected by the appellant on behalf of the respondent and the appellant has tried to play fast by substituting this document towards the payment of his arrears of rent.
13. Section 15 (2)(ii) of the Sindh Rented Premises Ordinance, 1979, lays down that 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--
(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 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. Admittedly there was mutual agreement between the parties for the payment of monthly rent in advance. Therefore, it means that either the rent should be paid before the commencement of the month or before the expiry of the month, i,e, up to the last day of the month.
So even if it is accepted for the sake of arguments that the appellant had tendered accumulated rent for five months vide (Exh.4/C) on 14-4-1985, he was still a defaulter in payment of rent within the meaning of clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. It may be added that payment of rent after the defaults were committed will not have the effect of erasing the defaults already committed. Likewise the tender of rent by money order or deposit of rent in the office of the Rent Controller long after the due dates will not absolve the tenant from the consequence of defaults already committed.
14. It is not disputed by the appellant that he was collecting rent from other tenants of the building upto March, 1985, which he used to remit to respondent through her son. In such a situation the plea of practice of payment of accumulated rent by him is devoid of any force.
15. Thus, from whatever point of view the matter may be looked at, the appellant has got no case.
The appeal is, therefore, dismissed with no order as to costs. The appellant is, however, allowed two months time to vacate the demised premises.