This appeal is directed against the order dated 19-8-1993 passed by IInd Senior Civil Judge and Rent Controller, Karachi (South) in Rent Case No. 1433 of 1990 directing the ejectment of the appellant from the rented premises within a period of 60 days from the date of the order.
2. Briefly stated the facts which lead to this appeal are that the respondent named above filed rent case against the appellant alleging therein that he is the landlord of the above named appellant in Flat No. l on the first floor of Plot No.M.R.58, A.I Akber Street, Mithadar, Karachi at the rate of Rs.120 per month as per compromise entered in Rent Case No.483 of 1985 on 27-11-1986. The opponent/appellant failed to pay monthly rent from March 1989 to May 1989 as such he (Respondent) filed Rent Case No.883 of 1989 on the ground of default, which is pending trial. He further alleged that after filing of Rent Case No.883 of 1989 by him, the opponent/appellant on 27- 7-1989 filed Miscellaneous Rent Case No. 1022 of 1989 under section 10 of Sindh Rented Premises Ordinance, 1979 and after necessary permission, lie started depositing the rent in Court. The opponent/appellant has even failed to deposit the rent a6cording to the direction of the Honourable Court as it is clear from the report of the Nazir. In the last he alleged that the opponent/appellant again deliberately defaulted in payment of rent from October 1989 to March 1990 as such he has made himself liable to ejectment.
3. The opponent/appellant filed his written statement stating therein that Rent Case No.483 of 1985 was filed on absolutely false and fabricated grounds, but in order to end the litigations, he agreed to the enhancement of rent and the rent case was ordered to be dismissed as withdrawn. The filing and pendency of another Rent Case No.883 of 1989 was not denied. He also admitted the filing of Miscellaneous Rent Case No. 1022 of 1989 and depositing of the rent in Court, because the applicant/respondent refused to accept the rent tendered by him and then also refused to accept the same sent through money orders. In his written statement he disclosed that he deposited the following rent in Court:-- On 27-7-1989 Rs.720 rent for March 1989 to August 1989.
On 30-10-1989 Rs.720 rent for September 1989 to February 1990.
On 3-5-1989 Rs.720 rent for March 1990 to August 1990.
On 16-9-1989 Rs.720 rent for September 1990 to February 1991.
4. In support of his case the applicant /respondent filed his affidavit in evidence along with copy of compromise application and order thereon in Rent Case No.483 of 1985 and the copy of application under section 8 of Sindh Rented Premises Ordinance, 1979 in Rent Case No.483 of 1985 and closed his side, while the opponent/appellant filed his affidavit-in-evidence alongwith photo copies of money orders dated 14-5-1989 as Exh. O/1, dated 8-6-1989 as Exh.0/2 and dated 8-7-1989 as Exh.0/3 and a rent deposit receipt in Court in Rent Case No. 1022 of 1989 dated 27-7-1989 as Exh.0/4. Both the parties were cross-examined by the other party.
5. That the Rent Controller after determining the following points directed the ejectment of the tenant as mentioned above:--
(1) Whether the opponent is wilful defaulter in payment of rent?
(2) Whether the applicant is entitled to relief claimed?
(3) What should the order be?
6. I have heard Mr. K.A. Wahab, the learned Advocate for the appellant and Mr. A.R. Mirza, the learned Advocate for the respondent and with their valuable assistance have gone through the entire record.
7. Mr. K.A. Wahab argued that the landlord has alleged two defaults i.e. One for the period from March 1989 to May 1989 and the other for the period from October 1989 to March 1990. For the first one, he argued that this period is subject-matter of the Rent Case No.883 of 1989 which is still pending before the Rent Controller, as such the same could not be considered and discussed in the present case. He also stated at Bar that Rent Case No. 883 of 1989 is decided in favour of the tenant/appellant. For the second default he submitted that the rent for the month of September 1989 to February 1990 amounting to Rs.720 w-,s deposited in Court in Rent Case No. 1022 of 1989 on 30-10-1989 and the rent for the months of March 1990 to August 1990 amounting to Rs.720 was deposited in Court on 3-5-1990; and copies of such challans/receipts are available on the record of the rent case at pages 11 to 17. The perusal of the said documents show that the appellant/tenant has deposited the rent for the said period in Court in time, as such he has not committed any default as alleged by the landlord. In support of his contentions, he cited the law reported in (1) 1989 CLC 106 Wazeeruddin v. Khalid Masood, (2) 1989 CLC 247 Mirza Yawar Baig v.
Usman Ghani (3) 1989 CLC 294 Babu v. S.M. Rafi and (4) (1989 MLD 2609 Fareed Ahmed v. Fikree Development Corporation. He further argued that apart from the period of alleged default from October 1989 to March 1990 no evidence could be looked into as it will be beyond the pleadings but the learned Rent Controller has committed illegality in looking into and considering the evidence led by the applicant/respondent in respect of other periods, which were not at all pleaded in the rent case.
8. Mr. A.R. Mirza in reply submitted that the Rent Controller has passed the ejectment order against the tenant/appellant, which does not call for interference. According to him the opponent/appellant committed defaults for the period (1) from March 1989 to May 1989 by depositing it in Court on 27-7-1989 and-(2) from September 1989 to March 1990 by depositing the same in Court on 30-10-1989 for September 1989 to February 1990 and on 3-5-1990 for March 1990.
According to him the rent for the month of September 1989 was deposited on 30-10-1989 instead of 10-10-1989; and for March 1990 he deposited on .3-5-1990 instead of 10-4-1990, as such clear defaults were committed. In support of his above contention he cited following cases:--
(1) 1989 CLC 247, Mirza Yawar Baig v. Usman Ghani.
(2) 1989 CLC 71, Ghulam Sakina v. Khaliq Bari.
(3) 1991 M LD 1340, Sultan Ahmed v. Khalid Hassain.
(4) F.R.A. No.203 of 1987, M/s. Sterling and others v. M/s. P.N.S.C.
(5) F.R.A. No.417 of 1989, Fazal Illahi v. Miss Abida Riyasat.
9. I have considered the arguments of the learned Advocates of the patties and have gone through the law cited by them in support of their contentions.
10. In the Rent Case No. 1433 of 1990, in paras. (4) and (5), the applicant claimed that the opponent has not deposited the rent according to the directions of the Honourable Court and that the opponent deliberately against defaulted in payment of rent for the months of October 1989 to March 1990. It is very strange to note that in the affidavit-in-evidence the applicant travelled beyond this pleadings in the rent case and the learned Rent Controller has also considered the same. For the purpose of decision of its appeal, the relevant period of default to be considered will be from October 1989 to March 1990. The admitted position is that the appellant deposited the rent in Miscellaneous Rent Case No. 1022 of 1989 as under:
(1) Rs.720 on 27-7-1989 for the period from March 1989 to August 1989.
(2) Rs.720 on 30-10-1989 for the period from September 1989 to February 1990.
(3) Rs.720 on 3-5-1990 for the period from March 1990 to August 1990.
(4) Rs.720 on 16-9-1990 for the period from September 1990 to February 1991.
11. Since there was neither any rent agreement between the parties nor any) date was fixed for the payment of rent, as such the tenant/appellant was entitled" to deposit the rent within the grace period of 60 days from the date on which the rent became due. Keeping in view the above legal position, it became crystal clear from the above details of deposits, that the appellant has not committed any default, as determined by the Rent Controller, who appears to have completely overlooked the above legal position and also travelled beyond the pleadings, hence I have no option but to allow the appeal 'and to set aside the impugned order and dismiss the Rent Case No. 1433 of 1990, with no order as to costs.