1. ' By the order impugned in this appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) appellant has been ordered to be evicted from Flat No,2 situated on Plots Nos.779 and 780, Commercial Area, PECHS, Karachi, on the ground of default in payment of rent.
2. ' Appellant is the tenant of the respondent's Predecessor-in-interest on monthly rent of Rs,400 per month with effect from December, 1984. Since he failed to pay rent from April to June, 1985 (both months inclusive) his eviction was sought by filing Rent Case No,39 of 1985 against him which was resisted on the premises that the respondent herself used to collect the rent at irregular intervals at her choice through her attorney. While denying default in the payment of rent, appellant contended that after March, 1985 he approached the attorney of the deceased landlady who refused to accept the rent for the reason that he was no more attorney. He urged that the said attorney told him that the landlady or any other person on her behalf would come to collect the rent and did not give her address. He reiterated that since none came to collect the rent from him after March, 1985 the rent could not be sent to the landlady but on coming to know about the address of the landlady, he remitted rent for the months of April to July, 1985 by money order dated 28-7-1985, as such there was no default.
3. ' Miring the pendency of the Rent Case landlady expired with the result that her legal representatives were brought on record. In support of the case, respondents led the evidence of Mrs. Tanveer Waheed Kazi, one of the legal heirs and attorney on behalf of other legal heirs, while the appellant examined himself. Affidavit of previous attorney Joseph Dean was also filed in support of the appellant's case but on the failure of the witness to appear for cross-examination his side was closed.
4. ' On assessm ent of evidence and hearing parties' counsel, learned Controller came to the conclusion that the appellant had committed wilful default in payment of rent and was, therefore, liable to be ejected. Accordingly he ordered his eviction vide order dated 30-9-1991 which has been assailed in the present appeal.
5. ' Learned counsel for the appellant vehemently contended that after the Cancellation of power of attorney of the previous attorney, deceased landlady neither sent any notice to the appellant nor notified her address in order to enable him to make payment of the rent. He pointed out that the version of the appellant to the effect that previous attorney of the deceased landlady namely, Joseph Dean had refused to accept rent after March, 1985 was not challenged in the cross- examination, thus, there was no default. There is no doubt that the previous attorney of the landlady may have declined to accept rent for the reason that he was no more attorney the fact remains that the respondent's witness Mrs. Tanveer Waheed Kazi specificity stated that Joseph Dean had mismanaged the affairs of the building, therefore, she took over management thereof and personally informed all the tenants about taking over charge of the building so far collection of rent and other matters and requested the appellant to make payment of the amount fallen due.
6. She asserted that the appellant was fully aware about her address but he did not tender any rent to her or to her mother (deceased landlady) in spite of her repeated requests and, thus, committed wilful default. During her cross-examination, she stated that she used to visit the disputed premises at least twice a month and after March, 1985, she used to collect the rent. She added that she had informed the appellant in presence of Joseph Dean, Lodhi and Jaffar Iqbal for not paying rent to Joseph Dean and that the appellant as well as other tenants had the knowledge of her address and telephone number but appellant 'fever approached her for payment of rent. In the face of these assertions on oath it cannot be said that the appellant was unaware of the address of the deceased landlady or her attorney and unable to pay rent to them. A similar question arose for consideration in the case of Baboo Khan v. Maqbool Ahmed 1984 CLC 2599 in which the view taken was that tenants' plea that he could not trace landlord to pay him rent had no force because in such case he was liable to deposit rent with Rent Controller. Same view was taken in the case of Syed Muhammad Ali v. Mst. Ayisha 1984 CLC 2332 and in the case of Jahangir v. Ashraf Ali Siddiqui 1989 CLC 967.
7. ' It was next contended on behalf of appellant that after =great efforts he was able to find out the address of the deceased landlady and remitted rent to her for four months amounting to Rs,1,600 by way of money order dated 28-7-1985. A photo copy of money order coupon was produced in evidence but learned counsel for the respondents rightly pointed out that the appellant resorts(' to sending rent by money order on this day only after the service of Court notice in respect of ejectment application. In this connection a reference was made to the statement of the appellant's counsel on page 19 of the lower Court record in which he stated that the appellant had received notice of the case through registered post on 28-7-1985. Original postal acknowledgement due receipt on page 25 also supports this statement of the learned counsel who also referred to the Court notice served on the appellant on 28-7-1985 in which figure '28' has been overwritten by '29'.
8. There is considerable force in the submission of the respondent's counsel that the appellant managed to send rent by money order only after the service of notice of ejectment application which could not be considered as valid tender of rent within time. It is, thus, obvious that the appellant realised the consequences of his own act by neglecting to pay rent within time and was persuaded to send rent by money order long after the commission of default which could not be explained by any reasonable hypothesis. In my view subsequent act of the appellant in sending rent would not be sufficient to wash off the default which had already been committed.
9. ' It was further contended on behalf of appellant that the rent for the months of April to July, 1985 was sent to the deceased landlady by money order dated 28-7-1985 but she refused to accept the same. Learned counsel submitted that in the absence of any agreement of tenancy and a fixed date for payment of rent appellant was entitled to a grace period of 60 days after the rent fell due.
10. According to the learned counsel rent for the month of April was due for payment on 10th of May and allowing a period of 60 days, it could be paid on or before 10th of July, 1985, whereas, it was remitted by money order dated 28-7-1985. Learned counsel conceded that there was a default of 18 days in payment of rent for the month of April, 1985 which deserved to be condoned by the learned Controller as the deceased landlady had created circumstances tending to prevent the appellant from payment of rent. The argument is fallacious on the face of it as under the provisions of section 10 of the Ordinance rent could be sent by postal money order or deposited with the Controller only when the landlord had refused or avoided to accept the rent. In this case, notwithstanding, refusal by previous attorney of the deceased landlady there is nothing on record to show that the appellant had taken steps to find out the landlady or offered rent to her. Moreover, he did not pay rent to respondent's attorney Mrs. Tanveer Waheed Kazi as stated by her. In the absence of any evidence to indicate that the deceased landlady had refused or avoided to accept the rent appellant cannot succeed on the plea that he had sent rent by inordinately belated money order which was sent after receiving. Court notice. Learned counsel for respondents has referred to unreported judgment by a learned Judge of this Court in F.RA. No,426/1988 in the case of Syed Mustafa Ali Shah v. Khawaja Umer Daraz in which it was held that the tenant is only entitled to send the rent through money order or deposit the rent with the Controller if the landlord refuses or avoids to accept the rent and in case rent is sent directly by money order or deposited with the Controller in the absence of refusal or avoidance on the part of the landlord to accept the rent, such remittance of rent by money order or deposit with the Controller shall not be proper tender of rent. In the above case, the case of Ahmed Ali v. Khursheed Ali Khan 1980 MLD 1249 was also referred in which a similar dictum was laid down.
11. ' Learned counsel for the appellant has referred the following cases in support of his argument that the circumstances of the case warranted the exercise of discretion in favour of appellant:--
(1) Inayatullah v. Zahooruddin and another 1987 SCM R 1313.
(2) Ameer Ali and others v. M/s. Burma Oil Mills Limited 1990 SCM R 1327.
12. ' M. Ijaz Khan v. Mrs. Shahida Iqbal Qarni 1994 CLC 932.
13. In the case of Inayatullah, Hon'ble Supreme Court upheld the view of the High Court where High Court had noticed that the landlord had deliberately created difficulties in the way of the tenants by not accepting the rent in the hope that some omission or slip on their part may enable him to carve out a ground for their eviction and found the conduct of tenants not amounting to default. In the present case, however, evidence on record does not show that the landlady had created any problem in the way of the appellant for commission of a default on his part.
14. ' In the case, of Ameer Ali, the view taken was that mere fact that a landlord accepted delayed payment of rent by the tenant on a number of occasions could not be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by 15th of every month. Tenant was, thus, bound to pay rent at the expiry of every month of tenancy. It was further observed that merely because the landlady had in the past condoned the non- payment of rent, unless the same was the result of an agreement or representation on her part, it was no ground for condoning the default of tenant by Court. It was observed that a tenant is obliged to pay rent within the stipulated time and landlord was not supposed, to go after him demanding rent. I am at loss to find as to how this case supports the view of the learned counsel for appellant as there is no evidence for condonation of default.
15. ' In the third case which is a judgment by a learned Judge of this Court rent for four months in lump sum had been paid to the landlord before the institution of the ejectment case which was condoned and considered to be a technical default. In the present case, however, it would appear that no rent had been paid at all and it was only after service of notice of ejectment case that appellant had vainly tried to forestall his ejectment by sending rent by money order without any sincere effort to find out his landlady or to deposit rent in the office of the Rent Controller within time.
16. ' It was lastly urged on behalf of appellant that affidavit-in-evidence before the Rent Controller was sworn on solemn affirmation instead of affirmation on oath which was defective in view of amendment introduced in section 6 of Oaths Act and Order VI, Rule 6, C.P.C. Which require the pleadings to be verified on oath. Reliance was placed on the case of Emirates Bank International Limited v. Super Drive-in Limited and 8 others 1990 M LD 538.
17. ' Learned counsel for respondent, on the other hand, has submitted that this objection was never taken by the appellant before the Rent Controller at any stage therefore he was estopped from raising this objection at the stage of appeal. Suffice it to say, subsection (4) of section 19 of the Ordinance permits evidence before the Controller by producing affidavit of a witness a copy whereof shall simultaneously be supplied to the other party who shall have the right to cross- examine the witness on such affidavit. An affidavit is a declaration of facts made in writing and sworn before a person having authority to administer an oath. In the present case, affidavits of both the parties were duly sworn on oath by an Oath Commissioner, thus, the objection raised at this stage cannot be sustained. This view was taken in the case of Khuda Bukhsh and another v.
18. Tekoomal and another 1986 CLC 1923 and Mrs. Rehana Abrar v. Inamuddin Malik 1989 CLC 616. I am in respectful agreement with the view taken in the above cases on the objection raised is only of technical nature which cannot be allowed to defeat the ends of justice.
19. ' For the foregoing reasons, there is no merit in this appeal which must fail and is hereby dismissed.
20. Appellant is allowed 60 days time to vacate the premises.