WAJIHUDDIN AHMAD, J.-This is a landlords appeal. Eviction before the learned Controller. Was sought on the ground of default in payment of rent. On facts, it was pleaded by the appellant- landlord, State Life Insurance Corporation of Pakistan, that the respondent, tenant in relation to shop premises No. 15 in State Life Building No.1, Dundas Street, of Zaibunnisa Street, Saddar, Karachi, was a chronic defaulter, not having paid rents for the period January, 1985 to April, 1985. The tenant, in defence, pleaded that the landlord habitually collected rents for 2, 3 or even 6 months at a time against trills issued in advance and otherwise too used to issue receipts without mentioning even the period for which the rent was paid. Such payments, through cheques, were accepted by the Landlord applicant on account. At times, allegedly, even receipts were not issued. As to the claimed period of default, it was maintained that for the months January to March, 1985, a consolidated bill was issued, which was payable after the expiry of March, 1985, as that month was included in the bill. The tenant avowedly made out a cheque for six months on 26.03.1985 (inclusive of 3 months in advance) but such could not be paid as the proprietor of the tenant fell ill. A letter dated 18.3.1985 was, allegedly, received by the tenant on 30.03.1985, intimating that the landlord was discontinuing the practice of issuing bills from the lst of April, 1985, and that due rents should be paid not later than the 10th of the next following months. In such circumstances, the tenants proprietor, recovering from sickness, went to the landlords office on 08.04.1985 to pay the billed amount as well as three months rent in advance but the concerned clerk refused to accept the same. The Real Estate Manager of the landlord was thereupon contacted but declined to issue instructions and on the contrary allegedly demand-4 ex-orbitant rent. Another attempt was made on 09.04.1985 by the tenant but is pleaded to have aborted. Hence, the tenant despatched a money order* on 09.04.1985 registered letter on 14.04.1985 to the Chairman of the landlord-corporation. The money order was refused and returned on 27.04.1985, where-upon the tenant filed Misc. Rent Case No. 1758 of 1985 and made necessary deposit for a period of six months ending June, 1985. May 01, being Labour Day the Misc. Rent Case had been submitted on 02.05.1985 and Friday falling on 03.05.1985 deposit was made on 04.05.1985.
2. In evidence, the landlord examined Peer Khan son of Bar ah Khan, Assistant Manager, Real Estate Division of the corporation, who produced a photostat copy of the General Power of Attorney dated 22.11.1982, issued by Agha Nasir Ali, (purporting to be Executive Director of the State Life Insurance Corporation of Pakistan and holder of a General Power of Attorney dated 10.01.1982), in favour and in the name of M Jafar Hussain Siddiqul, an officer of the corporation. Jafer Hussain Siddiqul had signed and affirmed to the rent application. He also produced a memorandum of authority in his own name issued by Nazir Ahmad Jafri, authorising him to appear as a witness, some receipts, most for more than a month at a time, the referred notice of the landlord dated 18.03.1985 and the tenants letter dated 14.04.1985 to the Chairman of the landlord-corporation. He, in essence, subscribed to the averments in the application but admitted that rent, as per practice, was not accepted in cash. He conceded that bills were issued for payment to tenants but that, he added, was only by way of courtesy. Looking at the receipts produced by him he was unable to state as to what period were covered by them. The receipts were silent regarding the periods of payment. He denied the attempts at payment by the tenant but, as said, produced the tenants letter dated 14.04.1985, incorporating the referred attempts. No reply was admittedly joined to such letter. The tenants proprietor from his side only examined himself, reiterating his allegations. He produced the allegedly prepared cheque dated 26.03.1985, a medical certificates, money order receipt and coupon and a chalian indicating deposit in the referred Misc. Rent Case.
3. Before the Controller a plea was raised from the side of the tenant that, on proper accounts being taken, in actual fact, rent for the month of January, 1985, would be found to have been already paid. In support was referred the phraseology in the rent receipts, issued from time to time, one of which (Ex. A/12) has been produced by the learned Controller in the impugned order and runs thus:- "Received from Siddique Tailors Rs. 100/-. The sum of Rs. One hundred only by cash/cheque/draft No. 098995 drawn HBL Elp. St Br. On account of rent on A/c."
4. The learned Controller has brushed-aside such plea, as having been taken belatedly. It appears to me that the contention was unceremoniously repelled without congent reasons. As already noted, the tenant had clearly pleaded and, later, even averred on oath that the landlord "passed receipts without mentioning therein the rate of rent and/or the months/period for which the rent was paid." (Para 3, Affidavit-in- Evidence). The landlord thus was clearly put on notice to reveal the accounts, receipts issued under its authority being silent as to essential particulars. At any event, there was no bar for the leamed Controller to go into the matter on the material available before him. This could even have been done at this stage or on remand of the case. However, I am not inclined to complicate the proceedings by opening that chapter at this stage. In the view I take, the matter is capable of being decided without invoking the referred details.
5. Assuming that the rent was due for the period January, 1985, onwards, since Undisputedly there is no written agreement of tenancy, such in terms of Section 15 (2) (ii) of the Sindh Rented Premises Ordinance, 1979, could be paid within 60 days from the date it fell due. Reading Section 10 with the said provision in the Ordinance, the rent for the said month of January, 1985, could be paid by and inclusive of April 10, 1985, that is to say, within 60 days as visualised in Section 15 (2) (ii) plus a further 10 days, in the absence of a contrary agreement, as enacted in Section 10 of the Ordinance.
Thus, for want of an agreement providing otherwise, a total grace period of 70 days was available to the tenant and rent for the month of January, 1985, could lawfully be offered by and inclusive of April, 10, 1985: SHEZAN LIMITED VS. ABDUL GHAFFAR, 1992 SCM R 2400.
6. As seen, it is the tenants case that a cheque for the period January, 1985 to June, 1985, was prepared on 26.03.1985 but could not be sent due to alleged sickness of proprietor of the tenant- firm. However, allegedly, rent was tendered in cash on 08.04.1985. Tenant's letter dated 14.04.1985 reciting such tender was never responded such less repudiated and, on the contrary, it has been said that cash paymet per practice, is not acceptable. Now practice cannot over-ride the law.
Section of the Ordinance expressly contemplates three modes of payment: primarily direct payment, by necessary implication, in cash to the landlord and upon his avoidance or failure, payment through money order or deposit before the Controller. In place of cash payment, which is the norm, payment may also be tendered by cheque but only if that mode is in vogue between the parties or is acceptable to the landlord without objection: HABIBUR REHMAN KHAN VS. MEHROMAL, NLR 1993 Civil 267 (SC). If due cash payment was offered on 08.04.1985 and then again on 09.04.1985, such was tendered within the time prescribed by law and default could not be pinned on the tenant. Pre-ponderance of evidence suggests that such tenders were made.
7. Next, the tenant is stated to have sent a money order for the same period of six months (as was covered by the above cheque) on 09.04.1985 which was returned, as refused on 27.04.1985. This mode of payment again was in consonance with Section 10 ibid. The despatch of rent through money order was questioned in the cross-examination of the tenant's proprietor and he was queried that the money order was not despatched to the correct address, the witness denying the suggestion. A postal money order receipt, as postulated in Section 10
(4) of the Ordinance has peculiar connotations. If produced, it is to be accepted in proof of the payment of the rent .-ZOHRA MASUD VS. AFTAB AHMAD, PLJ 1993 Kar. 275. Precedents making it relevant for a sender to also examine the postman, if despatch is denied, cannot in routine be applied to money order despatches in contemplation of Section 10 (4). If allegation is that the money order was Mala Fide sent to a wrong address such has to be precisely and expressly made so as to make it incumbent on the sender to prove his Bona Fides by summoning appropriate evidence. This was not the position in the instant case. The evidential value of the postal money order in the face of express language of Section 10 (4) in the Ordinance was thus not displaced.
Section 10 (4) of the Ordinance is in these terms: "(4) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of rent."
8. This is not all. Under Qanoon-e-Shahadat, 1984, a presumption attaches to official acts and, unless rebutted, such are deemed to have been regularly performed: Article 129, Illus (e). Once a person produces money order receipt and coupon bearing requisite postal marks indicative of relevant despatch of money a presumption of tender follows, In the context of Section 114 of the Evidence Act, 1872, equivalent to Article, 129 ibid, similar view as to despatch of a notice was taken by the Supreme Court in MOHD SHARIF VS.MAQBOQL AHMAD, 1974 SCM R 136.
9. Mian Mushtaque Ahmad has referred me to some case law in which examination of the postman is visualised. The question has already been touched in passing. Suffice is to say that even if Section 10 (4) was not in place, examination of the postman would be necessary only when the above cited presumption under Article 129 of the Qanoon-e-Shahadat had been displaced by relevant evidence in rebuttal and serious doubt stood duly cast about the genuineness or Bona Fides of despatch of rent through money order.
10. Lastly, it has been urged by Mian Mushtaque Ahmad for the appellant-landlord that there was delay in making the application for deposit of rent (M.R.C.) and that such deposit of rent alone could constitute payment, which being the position, the tenant is claimed to be in default. It must be stated straight-away that deposit of rent is a payment made by the tenant in the last resort and unless it is shown that such was affected maliciously the period (S) of time consumed in refusal or avoidance cash and tenders through money order (S) should provide allowance of a reasonable interval of time, permitting the tenant to engage an advocate, if any, to have due application prepared and to submit it for appropriate orders: SHAFIQUR REHMAN VS SAEED AHMAD, 1991 M LD 1393. As already noted, the tenant does not seem to have lost any time whatsoever between the date of return of the money order and the date of submitting such application. To my mind, a larger period of time could normally have been consumed in that process, which the tenant, on account of his anxiety and consequent promtitude, has been able to curtail to a fraction.
11. In conclusion, may be noticed a specific plea of Mr. Faizuddin Ansari, for the tenant-respondent to the effect that the only witness examined by the landlord before the Controller was unable to produce any satisfactory token of authority to appear as such witness, more relevant because the landlord is a corporation and has to act through delegating its functions. On this argument, it is urged that the landlords case had gone by default and no evidence in law was tendered from its side. Now, an act, application or appearance in or before a Controller, upon the equitable principles in the Code of Civil Procedure, should either be made by the party itself or by its authorised agent.
Though the concept of pleadings is not covered by Order III CPC, which has relevance here, the rent application seems to have been filed by h duly constituted attorney of the appellant-corporation.
As to-witnesses, they, too, do neither appear nor apply nor act before the Controller within the meanings of Order III aforesaid. All things being equal, anyone, on principle and authority, is a competent witness who is either able to depose to facts from his own knowledge or knowledge acquired from a permissible source. Where law does not make it incumbent to draw an adverse inference, a party, even when plausible, need not examine itself. The witness (es) examined in lieu, however, would remain to be assessed on the strength of their own testimonies. The appellant- corporation in the instant proceedings, therefore, competently examined its own solitary witness.
How far the witness succeeded in proving the appellant's case remains another matter and has been dealt with elsewhere.
12. In view of the above reasons, which are recorded now, this First Rent Appeal was dismissed through a short order passed on May 2,1993.