' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, (hereinafter referred to as the Ordinance, 1979) against the judgment, dated 22-12-1998 passed by the 1st Rent Controller, Karachi, (East) in Rent Case No,618 of 1997 through which appellant/tenant was directed to deliver the peaceful and vacant possession of the Flats Nos.1, 2, 3 on plot No,151 Block No .2, P.E.C.H.S., Karachi, (hereinafter referred to as the tenement in question).
2. In the eviction application filed under section 15 of the Ordinance, 1979, it was alleged by the respondent/landlord that the appellant/tenant has committed wilful default in tendering the rent since December, 1992. The rate of rent is admitted which is Rs,1,380 per month. The case of appellant/tenant is that the rent for the month of December, 1992 was firstly sent on 20-3-1993 through money order, which was for Rs,4,140 and the note written by the appellant/tenant shows that these were the rent for the period of December, 1992 to February, 1993. For the second time the rent were again sent through money order on 15-3-1993 was for Rs,8,280 i,e,: rent from December, 1992 to May, 1993. Lastly on 2-11-1993 money order was sent for Rs,9,660 wrongly showing to be rent from November, 1992 till November, 1993. On the money order form it was categorically mentioned by the appellant/tenant that since the landlady has refused to accept first two money orders, therefore, these rents are being sent for the third time through money order. Admittedly, the appellant started depositing the rent in the Miscellaneous Rent Case No,12 of 1994. For the first time, an amount of Rs,93,20 was deposited in the miscellaneous rent case by the appellant/tenant which is the rent for the period of December, 1992 till January, 1994.
3. I have heard learned counsel for the parties. It is argued by Mr. Salahuddin that in view of sending of three money orders and thereafter deposit of rent in miscellaneous rent case, it shows bona fides of the appellant/tenant and in no manner, such conduct of the tenant constitutes wilful and deliberate default. He has placed reliance on section 10 of the Ordinance, 1979, as well as on the case of. Abid and others v. Heer Bai (1987 CLC 692) and the case of Allauddin v. Ghazanfar Ali (1994 CLC 563). Mr. S. Muhammad Haider on the other hand contended that sending of money order on 20-3-1993 for the month of December, 1992 was admittedly after expiry of grace period and this solitary act of default entitles eviction of the tenant. It was further argued that after the so- called refusal of the landlady to accept money orders, tenant was required to deposit the same in the miscellaneous rent case without further delay which was not done and the rent were deposited after the expiry of more than one year. He has placed reliance on the case of Muhammad Wali v.
Mariam Begum (1982 CLC 1789) and Shafiq Ahmad v. Sakhawat Hussain (1989 CLC 1116).
4. Since both the parties are relying on the provision of section 10 of the Ordinance, 1979, it would be necessary for convenience sake to reproduce the same:
(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, 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..."
5. The above provision of Ordinance, 1979, was enacted, perhaps with the view to protect interest of both the landlord and the tenant. Tenants are permitted to send the rent, either by postal money order or to deposit the same with the Rent Controller within whose jurisdiction the tenement is situated. However, there is one pre-condition for adopting such mode of tendering rent i,e, there must be refusal or avoidance on the part of landlord to receive rent. This provision helps tenants in encountering a situation where a greedy or mischievous landlord, for the purpose of seeking mala fide eviction of his tenant may act in a manner leading his tenant to commit default. Therefore, in addition to the term "refused" the legislators have also used the term "avoid". In such circumstances, there may not be a direct refusal on the part of a landlord in not receiving the rent but where it is successfully shown by a tenant that there were reasonable circumstances showing conduct of a landlord in avoiding, either, to receive rent or to issue any discharge or acknowledgment after receiving the rent or there may be a situation where landlord has shifted his place of residence or office where he used to collect the rent, then again this will cover a situation arising out of "avoidance". At this stage, it is difficult to narrate all such situations, suffice it to say that avoidance to receive rent justifies a tenant to resort to section 10(3) of the Ordinance, 1979. In the instant case, the appellant/tenant went on sending rent through money order despite his admission that such money orders were refused by the landlord. A tenant is permitted to send second money order only when his landlord has accepted rent through such method but he is not permitted to repeat tendering of rent through postal money orders, once it has returned un served on whatever ground. The only remedy available to such a tenant is to deposit the rent as provided in subsection (3) of section 10 of the Ordinance, 1979, which was not done in the instant case. The tenant permitted accumulation of rent without any justification and authority and has made himself liable for the consequence of not paying rent within time.
6. In the instant case, the rate of rent is not disputed nor the period for which the rent was to be paid. It is December, 1992, when the reason shown for not tendering the rent within time by the tenant is that it was landlord who manipulated creation of such default and that he avoided to receive the rent for the month of December, 1992 but this is not the correct position as it merged after cross-examination of appellant/tenant. In his cross-examination he has admitted to have paid rent for the month of November, 1992 and in lieu of the same he has received acknowledgement from the attorney of the landlady. He has admitted to have sent first money order for the month of December, 1992 on 20-3-1993 and thereafter, two more money orders with huge gaps and then finally deposited rent in miscellaneous rent case in the month of January, 1994. The spirit of provision of section 10 of Ordinance, 1979 is that where a landlord refuses to receive the rent, tenant is required to send the same either through money order or to deposit the same with Rent - Controller. He is not permitted to go on continuously sending the money orders with gaps when landlord is persistently refusing to receive the same. The moment the Money Order Form was returned un served, the appellant/tenant was legally required to rush to the Court and to deposit the rent with the Rent Controller having jurisdiction in the matter. In the instant case, it has been denied by the landlady that any such money order was sent. In such C circumstances, the landlady has successfully proved commission of wilful and deliberate default on the part of appellant. There is no misreading of the evidence and irregularity in the impugned judgment which require interference of this Court. This appeal is dismissed in limine with no order as to costs along with listed application.
7. Attorney of respondent/landlady is present in Court and with his consent appellant is granted one year's time to hand over the vacant possession of all the three flats/tenement in question to the respondent/landlady on or before 8th March, 2000, subject to continued depositing of rent. It is clarified that if appellant fails to deliver the physical possession of the tenement by the said date, the Rent Controller will issue writ of the possession directly without further notice to the appellant/tenant.