1. These are two appeals under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against orders, dated 15-10-1992 passed in a Rent Case No.978 of 1988 Muhammad Raza v. Habib Bank Limited passed by V-Senior Civil Judge and Rent Controller, Karachi South, whereby ejectment application filed by the respondent/landlord against the appellant/tenant was allowed on the ground that appellants/tenants have impaired the value and utility of the demised premises while the issue of default in the payment of rent was decided in the negative holding that appellants/tenants Habib Bank Limited have not committed default in the payment of rent against the said finding Muhammad Raza, landlord/appellant has referred a separate Appeal No.600 of 1992, therefore, both the appeals being against the same order in respect of the same property is being disposed of by this judgment.
2. Brief facts of the case are that respondent Muhammad Raza is the landlord of property hearing Plot NO.MR.1/75,11-B 61-G/3, situated in Karachi, Gali No.3, Karachi South, admeasuring 1123.62 sq. Ft.
3. Of which appellant Habib Bank Limited is the tenant at the rate of Rs.1,500 per month under registered lease deed dated 21-2-1969 initially for the period of ten years from 1-5-1967 to 30-4- 1977 which renewed period also expired on 30-4-1987 and the respondent Muhammad Raza filed ejectment application against the appellants/ tenants Habib Bank Limited on the ground that they have infringed the condition of lease and failed to maintain the said property thereby impaired the value and utility of the said premises, consequently, the premises was declared dangerous by the K.D.A. Thereby the respondent/landlord required the said premises for demolition so as to comply with the K.D.A.'s decision therefore, the appellant/ tenant was called upon to vacate the premises and further that the appellant/ tenant Habib Bank Limited has committed default in the payment of rent for the months of March and April, 1987.
4. The appellant/tenant Habib Bank Limited filed written statement wherein they denied to have impaired the value and utility of the property in question and further denied to have made any default in the payment of rent for the months of March and April, 1987 as the rent was paid through pay slips issued by the appellants/tenants Habib Bank Limited and same were sent to the respondent/landlord through registered post A.D. Which letter was acknowledged and further rent for the month of May, 1987, was also sent through pay slip to the respondent/landlord through registered post A.D. But the said letter was returned undelivered therefore, on 2-6-1987 rent for the May, 1987 was sent through money order which was also refused by the respondent/ landlord thereafter rent for the months of May, 1987 to December, 1988 was deposited with the Rent Controller in Miscellaneous Rent Application No.923 of 1987.
5. On the pleadings of the parties learned Rent Controller settled the following issues:--
(1) Whether the opponent has impaired the value and utility of the demised premises?
(2) Whether the building in question has been declared as dangerous?
(3) Whether the opponent has committed default in the payment of rent?
(4) What should the decree be?
6. The respondent/landlord has filed an affidavit of his attorney A.I Raza who has produced photo copy of notice dated 15-3-1987, photo copy of lease deed dated 13-2-1969 executed between the parties, photo copy of general power of attorney executed by respondent in favour of A.I Raza as Exh.5. The appellant/tenant filed an affidavit-in-evidence of Shaikh Saeed Ahmad, attorney of the appellant/tenant Habib Bank Limited who has filed photo copy of notice dated 5-3-1987 as Annexure "A", its reply dated 5th April, 1987 Annexure "B", Bank's voucher, dated 31-3-1987 Annexure "C", pay slip dated 20-4-1987 as Annexure "F" and acknowledgement of receipt Annexure "E", counterfoil of pay-slip, dated 20-4-1987 Annexure "G" and acknowledgement receipt Annexure "H", pay slip for the month of May, 1987 Annexure "I" and envelope marked as Annexure "J", photo copy of power of attorney executed in favour of Shaikh Saeed Ahmad by the Board of the appellants/tenants and photo copy of money order coupon` No.206 of 2-6-1987. Both the deponents were cross---examined by the learned counsel for parties. Leaned Rent Controller after recording the above evidence and hearing the learned counsel for parties allowed the eviction application of the respondent/landlord on the ground that appellant/tenant Habib Bank Limited have impaired the value and utility of the building while the issue of default was answered in negative, therefore, F.R.A. No.572 of 1992 was filed by the Habib Bank Limited/appellant/tenant against the finding on Issue No. l while the respondent/landlord Muhammad Raza filed F.R.A. No.600 of 1992 against the finding of Rent Controller on Issue No.3.
7. I have heard the learned counsel for parties, perused the record and proceedings of the case and the case-law cited by the respective counsel for parties.
8. Learned counsel Mr. Muhammad Saleem Iqbal for appellant/tenant has argued that there was no evidence on record to show that the appellants/tenants have committed any act whereby the value and utility of the building in question has been impaired therefore, the finding of the learned Rent Controller was erroneous. He has further argued that the appellant/tenant Habib Bank Limited as per practice tendered rent through pay-slip by registered post A./D. For the months of March and April, 1987 which was received by the respondent/ landlord while rent for the month of May, 1987 was sent as per pay-slip to the respondent/landlord through registered post A./D. But it was returned undelivered thereafter rent was tendered through money order which too was refused therefore, the rent was deposited in Miscellaneous Rent Application No.923 of 1987 with the Rent Controller hence there was no deliberate and wilful default in the payment of rent. He has further argued that there was no provision in the Rent Ordinance whereby on the ground of building being dangerous eviction of the tenant could be ordered. He has placed reliance upon Zainab Bai and 2 others v. Shafiuddin PLD 1987 Kar. 116 in support of his contentions.
9. Learned counsel, Miss Mehrunnisa for the respondent has argued that the appellant/tenant Habib Bank Limited has infringed the condition of lease deed para. 5(b) by not maintaining and repairing the said property thereby impaired the value and utility of the premises and further that the appellants/tenants Habib Bank Limited have failed to pay and tender rent for the months of March and April, 1987, therefore, have committed default in the payment of rent She has further argued that the appellants/tenants Habib Bank Limited knew that the respondent's account with their bank was closed and the alleged pay slip could not be credited in the respondent's account but in spite of that fact, the appellants/tenants did not tender the rent to the respondent therefore, the finding of the Rent Controller on the issue of default in payment of rent was erroneous and not based on proper appreciation of evidence on record. She has placed reliance upon 1991 CLC 1068 in support of her contentions.
10. Section 15(2)(iii)(c) states that the Rent 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 that the tenant without the written consent of the landlord has infringed the conditions on which the premises was let out. Section 15(2)(iv) of the Rent Ordinance states that Rent Controller can 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 that the tenant has committed such acts as are likely to impair the material value or utility of premises.
11. "I do not know if the opponent (tenant) has made any alteration and addition in the premises in question. I cannot say if the opponent (tenant) has made the demised premises in dangerous condition by changing its structure. It is the fact that bank's premises is situated on its ground floor.
12. There are two-three floors situated on the premises in question. I do not know if the tenants are residing on the first and second floor of the building ... No Architect had examined the premises in question and declared it to be dangerous."
13. The appellants/tenants in the written statement have denied the allegations of the respondent/landlord that they have infringed condition of lease or they have impaired the value and utility of property in their possession and the same statement was reiterated by Shaikh Saeed Ahmad in his affidavit-in---evidence. In the cross-examination the only admission which was sought from the attorney of the appellants/tenants that the demised premises was included in the public notice of the K.D.A., K.B.C.A. As per Exh.A/3 to Exh.A./6 but he denied that the building was in dangerous condition and further stated that their Survey Engineer had examined the premises in question and had informed that the premises in question was not in dangerous condition. No other evidence has been produced by the respondent/landlord except the evidence reproduced above.
14. There is no evidence on record from the side of the respondent/landlord to show that any act contrary to para. 5(b) of the lease deed has been committed by the appellants/tenants Habib Bank Limited. There is nothing to show that the appellants/tenants have caused any damage to the fittings, fixtures and installation of the premises or have done any act whereby the said premises has been damaged: No other clause to the lease deed was pointed out whereby it could be said that the appellant/tenant has infringed the condition of lease deed. On the contrary learned counsel for appellant referred to para. 6 of the lease-deed whereby the respondent/landlord was to distemper the premises and get the same painted every third year and to carry out necessary repairs that might be required or deemed necessary to the building which has been leased out.
15. The respondent/landlord has not produced any evidence on record to show that the appellants/tenants have committed any act whereby it could be said that the building has been damaged and thereby its value and utility has been impaired. The respondent/landlord's attorney has stated in the cross-examination that he did not know if appellant/tenant has made any alteration or addition in the premises and could not say if the appellant/tenant has made the building in question in dangerous condition by changing its structure. The attorney of the respondent admitted that neither architect has examined the premises in question nor declared it to be dangerous. The respondent/landlord has failed to produce any evidence to show that the appellant/tenant has impaired the value and utility of the building. The allegations made in the ejectment application are vague and no material particulars have been stated so as to the acts which could constitute the factors towards the impairing the value and utility of premises. There is absolutely no evidence to show that the appellants/tenants have committed such acts which have materially impaired the value and utility of the premises or that they have infringed conditions on which premises was let out therefore, the respondent/landlord has failed to prove the Issues Nos. l and 2 hence findings of the learned Rent Controller were erroneous and were not based on proper appreciation of evidence which are hereby set aside.
16. Next issue is in respect of default towards the non-payment of rent for the months of March and April, 1987. The respondent/landlord has stated in the ejectment application that the appellant/tenant Habib Bank Limited has failed to pay rent for the months of March and April, 1987 and the said statement has been reiterated in paras. 6 and 8 of affidavit-in-evidence of A.I Raza while in para. 10 he has stated that the rent for the months of May and June, 1987 was deposited on 4-7-1987 which was also late and could not cover the default. The attorney of the respondent has denied to have received rent till April, 1987 but admitted to have received rent up to February, 1987.
17. He has stated that he did not know if appellants/tenants have sent rent for May, 1987 through pay- slip on 23-5-1987 by registered post A./D. And could not say if respondent/landlord have refused to accept the rent for May, 1987 and further stated that if it would have been sent the same would have been refused. He has also denied that appellants/tenants have sent rent for March and April, 1987 through pay-slip to the respondent/landlord and one enveloped letter A.D. Has come in the name of respondent/landlord and same was received by him but could not say if it contained pay-slip. The respondent's attorney however, admitted that the appellant/tenant has sent rent for May, 1987 on 2-6-1987 through money order but respondent refused to accept it. Respondent's attorney was confronted to A.D. Receipt on record to which he replied that he could not say if the same pertained to those pay-slips. The appellants' attorney in paras. 7, 8, 9 and 10 of affidavit-in- evidence has stated that appellant/tenant paid rent for the months of March and April, 1987 to the respondent/landlord through pay-slip which were duly acknowledged when the pay-slip for the month of March, 1987 bore No.966936 dated 31-3-1987 and for the month of April, 1987 bore No.966941, dated 20-4-1987 which were sent through registered post A./D. And rent for the month of May was sent through pay-slip but it was refused and was returned undelivered, then rent for the month of May, 1987 was sent through money order but it was refused and on refusal, rent was deposited in Miscellaneous Rent Case No.923 of 1987. Attorney of the appellants has produced photo copy of a voucher dated 31-3-1987 Annexure "C" issued by the appellants/tenants in respect of two pay-slips numbers 966935 and 966936 each for the sum of Rs.1,500 total amount becomes Rs.3,000, photo copy of postal A.D. Receipt dated 31-3-1987 Annexure "E" addressed to Mr. Muhammad Raza and photo copy of voucher dated 20th April, 1987 mentioning numbers 966940 and 966941 in respect of pay-slip each for Rs.1,500 total amount of Rs.3,000, counterfoil of pay-slip Exh.7, dated 31-3-1987 for the sum of Rs.1,500 being rent with No. PAG 966936 and counterfoil of pay-slip Annexure "G" dated 20-3-1987 with No.PAG 966941 for the sum of Rs.1,500, photo copy of postal receipt A.D. Dated 20-4-1987 Annexure "H" addressed to respondent, photo copy of pay-slip Annexure "I" with No. PAG 966962 for the sum of Rs.1,500 dated 2-6-1987, photo copy of front side of envelope addressed to respondent dated 23-5-1987, money order coupon No.2063 dated 2-6-1987 for the sum of Rs.1,500 addressed to respondent. The appellant's attorney in the further cross- examination has stated that:-- "I have verified the account as per direction of this Court. It is correct that account number is 94-81.
18. This account was closed on 19-4-1987."
19. He was confronted to Annexure "I" filed with his affidavit and stated that it was not receipt but it was the pay-slip and admitted that the pay-slip issued by the bank is deposited in the respondent's account and the pay-slips were not deposited in the account because the account was already closed and further denied that rent for March and April, 1987 was not paid to the respondent/landlord as the pay-slip was to be signed by the landlord also and thereafter it was deposited. He has admitted that rent for the month of May, 1987 was deposited in the Court on 4th July, 1987. He was also confronted to Annexure "G" counterfoil of pay-slip dated 20-4-1987 which he stated was not credited by the respondent as would appear in their record as still outstanding. He has further stated that amount of counterfoil of pay-slip dated 31-3-1987 has not been received by the respondent/landlord from the appellant's/tenant's account and it was outstanding there.
20. Amount mentioned in Annexure "G" counterfoil of pay-slip dated 20-4-1987 was also paid by the bank to the respondent and it was responsibility of the respondent either to encash this amount or not;. He has stated that he has no receipt to show about the payment of tills amount as shown in Annexure "G". He has stated that he has paid rent through pay-slip for March and April, 1987 to the respondent and pay-slip itself was a cash slip.
21. From the perusal of the evidence on record it would appear that as per admission of the appellants' attorney Account No.94-81 of the respondent was closed on 19-4-1987. It is also admitted position that the respondent/landlord sent notice dated 15-3-1987 to the appellant/tenant to vacate the premises as the lease period was to expire on 30-4-1987 and that they have infringed the conditions of the lease therefore, it was duty of the appellant/tenant to be cautious in making payment of rent to the respondent. The respondent/landlord's attorney has stated in his affidavit-in-evidence that the rent for the months of March and April, 1987 was not paid while on the other hand appellants/tenants have stated that to have paid it through pay-slips photo copy of which have been produced on the record the receipt of which has been denied by the respondent/landlord. The pay-slips only showed that it was issued by the appellants/tenants.
22. No record has been produced to show that the same were issued in the name of respondent/landlord and also credited or entered in the Account No.94-81 of the respondent. It was duty of the appellants/tenants to discharge the onus by producing the relevant record from their office to show that payment of rent for the months from March, 1987 to May, 1987 after the issuance of pay slips was credited in the account of the respondent/landlord with their branch but the respondent failed to produce any record in support of their statement that the rent for the months of March and April, 1987 was paid or tendered.
23. Section 10 of the Rent Ordinance runs:-- "10. Payment of rent.--(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate.
(4) The written acknowledgement, 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 the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance."
24. The above provision of Rent Ordinance states that the tenant has to pay rent not later than the 10th of next following month for which the same is due and rent shall be paid to the landlord who would issue acknowledgement receipt thereof in writing but where the landlord has refused or avoided to accept the rent, the rent be sent by postal money order or be deposited with the Rent Controller within whose jurisdiction the premises is situated and the written acknowledgement postal money order receipt and the receipt of Controller would be a proof of payment of rent. There is no mode to tender, rent by pay-slip under the said provision of law. The appellant's attorney has himself admitted that pay slip is not a receipt and has also admitted that account of the respondent/landlord was closed on 19-4-1987 which they themselves had closed in their branch therefore, there was no question of making deposit in the account of respondent after the above date. If the amounts of pay slips which the appellants issued in favour of respondent were not received for payment within reasonable time they should have been cautious and careful by tendering the rent through money order or by making deposit with the Rent Controller but no such efforts were made. The rent for the month of March should have been paid not later than 10th of April, while the rent for the month of April, 1987 should have been paid by 10th of May, 1987 but in the instant case rent for the said months was neither sent through money order nor deposited with the Controller except the rent for the month of May, 1987 which too was deposited on 4th of July, 1987 in Miscellaneous Rent Case No.923 of 1987 as admitted by the attorney of the appellants/tenants when the rent for the month of May, 1987 should have been deposited by 10th of June, 1987. This would show that even rent for the month of May, 1987 was not paid/tendered/deposited within fifteen days after the expiry of period fixed in the agreement as required by section 15(2)(ii) of Rent Ordinance therefore, on the face of it there has been default in the payment of rent for the months of March, April and May, 1987. The evidence adduced by the respondent/landlord on the point of default is consistent with the pleadings and no evidence in rebuttal has been produced so also the testimony of the respondent/landlord could not be shaken in the cross-examination by the learned counsel for appellant. There is a clear admission on the part of the appellants/tenants in respect of default in payment of rent for the months of March to May, 1987. Accordingly, the finding of Rent Controller on the point of default is erroneous and is based on misappreciation of evidence on record, therefore, it is reversed and set aside.
25. So far the Appeal No.600 of 1992, the same has been filed by appellant's attorney Muhammad Raza to whom relief of ejectment was granted in view of finding on Issues Nos. l and 2 against the tenant/Habib Bank Limited by the Rent Controller, therefore, his F.R.A. No.600 of 1992 against the finding of default would be incompetent. Reference is made to Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others 1990 CLC 1320 wherein learned Judge in Chamber held that landlady's appeal against the findings on issues of default and requirement for personal use was not maintainable in law, when order of ejectment has been passed on other grounds but the landlady or landlord would be competent to put forward his arguments to negate the findings of Rent Controller which be against him in the appeal filed by the tenant. Accordingly, I have considered the arguments of the learned counsel for respondent/landlord in the appeal filed by the appellants/tenants Habib Bank Limited being F.R.A. No.572 of 1992.