1. Appellant has been ordered to be evicted from Office Rooms Nos. 1 and 2 of a building situated on Plot No.810-C, Commercial Area, P.E.C.H. Society, Karachi on the ground of default in payment of rent for the months of July to September, 1987 (both months inclusive).
2. Appellant is the tenant of the respondent in the demised premises on a monthly rent of Rs.1,650 by virtue of an agreement of tenancy dated 24-2-1987 effective from 1-8-1987 and valid for a period of 11 months. Respondent filed an eviction application against the appellant on the ground of default in payment of rent for the aforesaid period which was resisted by the appellant who in his written statement admitted the tenancy and the rate of rent but according to him it was only a formal agreement not covered by the provisions of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). He explained the default by stating that after the payment of rent for the month of June, 1987 he went to perform Umra and thereafter to perform Hajj. He had offered rent for July, 1987 vide cheque dated 23-8-1987 and rent for August, 1987 through cheque dated 1- 9-1987 to the respondent through a neighbouring tenant, namely, Obaidullah with whom he had left these cheques before proceeding to Saudi Arabia. He asserted that these cheques were given by Obaidullah to the respondent who refused to accept the same. Subsequently he tendered rent to the respondent through two money orders dated 12-9-1987 but the respondent refused to accept with the remarks: "The sender is defaulter tenant and to cover his default he has sent the money orders, hence refused as it involved legal action against him". He further pleaded that he had paid a sum of Rs.30,000 to the respondent at the time of commencement of tenancy by way of fixed deposit and after the refusal of money orders he had deposited rent w.e.f. July, 1987 on wards in M.R.C. No. 825 of 1987.
3. Both the parties in support of their respective cases appeared as their own witnesses.
4. Upon assessm ent of evidence learned Controller settled the sole issue with regard to wilful default in payment of rent on the part of the appellant and finding it in affirmative directed his eviction vide judgment dated 17-4-1990 which has been impugned in this appeal.
5. Alongwith the memo. Of appeal, appellant moved C.M.A. No.710 of 1990 under section 21(3) of the Ordinance seeking permission to produce two receipts dated 8-2-1987 indicating payment of Rs.1,650 and Rs.30,000 towards rent and security deposit respectively and a receipt for payment of Rs:3,300 dated 8-3-1987 towards rent. This application was ordered to be heard alongwith the main appeal.
6. Learned counsel for the appellant after arguing C. M. A. No. 710 of 1990 at quite some length conceded that receipts for payment of Rs.30,000 and Rs.3,300 dated 8-2-1987 and 8-3-1987 respectively were not necessary for determination of the point under controversy but he pressed for permission to take into consideration the receipt dated 8-2-1987 indicating ,payment of Rs.1,650 towards rent for the month of February, 1987. Learned counsel for the respondent strenuously opposed the allowing of additional evidence at this stage on the ground that it would amount to filling the lacuna as the appellant had failed to plead this payment or to produce this receipt in his evidence before the Controller. On a careful consideration of the matter, I am of the view that this receipt cannot be allowed to be produced by way of additional evidence as it was no where pleaded in the written statement that the appellant had paid rent for February, 1987 when he was not the tenant, nor was it confronted to the respondent during his cross-examination. In my view allowing of this receipt would amount to permitting additional evidence at appellate stage beyond pleadings and introducing a new plea of fact thereby taking the respondent by surprise as he had no opportunity to explain this payment in his evidence before the Controller. No doubt, the procedure for production of evidence prescribed in Code of Civil Procedure is not applicable to the proceedings before the Controller under the Ordinance, the general principles of law relating to evidence are attracted in the circumstances. At any rate, for the purpose of effective adjudication of this appeal it is not at all necessary to allow the production of this receipt which would involve determination of disputed facts at this belated stage, I would, therefore, dismiss C.M.A. No.710 of 1990.
7. Adverting to the issue of default, learned counsel for the parties have referred to, the agreement of tenancy produced before the Controller Annexure 'A', paragraph 4 whereof relates to the payment of rent. For the sake of convenience and proper understanding of the controversy between the parties it is reproduced as under:--- "That the tenant shall pay monthly rent in advance before the 10th of each succeeding month regularly till the termination of tenancy."
8. It would appear that this paragraph is self-contradictory inasmuch as initially it recites that monthly rent shall be payable in advance and in the same sentence it says that the tenant shall pay the rent before the 10th of each succeeding month regularly till the termination of tenancy. In view of a doubt as to the intention of the parties I am inclined to resolve the benefit of doubt in favour of the tenant and as non-compliance with a condition for payment of rent within the stipulated period entails penal consequences, therefore, it has to be strictly construed. It would thus be fair and reasonable to hold that the monthly rent was payable before the 10th of each succeeding month. No doubt, the appellant had paid the rent up to June, 1987 in advance but this circumstance by itself would not be enough to deprive him of the benefit of a confusion regarding the date of payment of rent in the agreement of tenancy. Non-payment of rent for this period being not in controversy, burden heavily lay on the appellant to show that the respondent had refused to accept the rent before he sent the rent by money order and deposited it in the office of Controller. The case set up by the appellant was that while leaving for Saudi Arabia he had left two cheques for payment of monthly rent with his neighbouring tenant Mr. Obaidullah but this would be of no assistance to him as the said Obaidullah was not examined in support of his case in order to establish that he had actually offered the rent by way of cheques to the respondent which was allegedly refused. In the absence of evidence of said Obaidullah, production of cheques and hearsay evidence of the appellant is of no significance and this circumstance by itself would not amount to payment of rent within the meaning of the term.
9. Thus rent for the month of July, 1987 due for payment on 9th August could be paid up to 24th August after allowing a grace period of 15 days to the appellant under clause (ii) of subsection (2) of section 15 of the Ordinance but the appellant in this case for the first time remitted rent by money order on 12-9-1987. There was thus a default of 19 days which he has failed to account for. In the first instance, appellant has not been able to explain the delay of 19 days in the payment of rent within time and secondly in my view the appellant could neither send the rent by money order nor deposit it in the office of the Controller in the absence of evidence to indicate that the respondent had refused or avoided to accept the rent. No doubt, the rent sent by money order was refused by the respondent but as observed earlier it was sent long after it had fallen due and for a valid reason that the appellant had already committed default which could not be covered by sending the rent by a belated money order. I have already held in F.R.A. No.611 of 1991 decided on 29-1-1995 that in the absence of any evidence to show that the landlord had refused or avoided to accept the rent, a tenant is not entitled to send the rent by money order or to deposit it with the Rent Controller. The language and spirit underlying the provisions of subsection (3) of section 10 of the Ordinance are a clear guideline on the point which do not permit of any other view.
10. There is no controversy as regards the remittance of rent for the month of August, 1987 which fell due on 9th September and allowing a grace period of 15 days it could be paid up to 24th September whereas the money order was sent on 12-9-1987 but as observed earlier the mode of tendering rent in this manner could only be availed of after establishing refusal or avoidance by the landlord to accept the rent which is entirely lacking in this case.
11. No other point was urged in support of this appeal which is without any merit. The finding of the learned Controller on the issue of default, does not warrant any interference. Appeal is accordingly dismissed but the appellant is allowed 90 days' period to hand over vacant possession of the disputed premises to the respondent subject to deposit of rent.