1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against an order dated 17-5-1995 passed in Rent Case No, 294 of 1992 (M/s. Karimi 13i Works v. L.Rs, of deceased Muhammad Yousuf) whereby an application filed by the respondents under section 15 of Rent Ordinance was allowed and the appellants/tenants were ordered to vacate the premises within 60 days from the date of impugned order.
2. ' Brief facts of the case are that the respondents filed eviction application against the predecessor- in-interest of present appellants under section 15 of Rent Ordinance on the grounds (i) default in the payment of rent and electricity charges for the months of April and May, 1987, (ii) infringement of the terms of tenancy agreement whereby shop was being used for other purpose than for which it was rented out and (iii) impairing materially the value and utility of shop premises. The appellants/tenants filed written-statement wherein they denied the assertions of the respondents made in the eviction application and stated that their predecessor-in-interest Dr. Muhammad Yousuf died on 10-7-1987 and they tendered rent for the month of April, 1987 on 4-5-1987 but it was refused and then rent for the month of June, 1987 was tendered on 1st June, 1987 but again it was refused, therefore, on 6th June, 1987 rent was sent through postal money order being rent for the months of April, May and June, 1987 but the same was also refused thereafter, rent was deposited in M.R.C. No, 545 of 1987 on 6-7-1987. It is further submitted that the electricity charges were directly payable to Karachi Electric Supply Corporation and not to the respondents. So far the use of the shop premises it was stated that the same was being used as medical and general store by Respondent Waqar Yousuf.
3. ' Respondent Ghulam Moinuddin filed his affidavit-in-evidence who produced agreement of lease Exh.A/1, two electric bills Exh.A/2 and Exh.A/3, appellants filed affidavit-in-evidence of Mst.
4. Sadrunnisa widow of Muhammad Yousuf and attorney for the L.Rs, of deceased Muhammad Yousuf who produced photo-copy of notice dated 19th July, 1987, photo-copies of registered post receipt, registered A.D. Receipt, rent, bill, money order coupon, postal money order receipt, payment of rent in the bank and payment slip of KESC Exh.D/2 to Exh.D/8, special power of attorney, filed affidavit-in evidence of Iqbal Yousuf. The deponents who filed affidavits-in-evidence were cross-examined by the respective adversary counsel for the parties. After recording the above evidence and hearing the counsel the impugned order was passed.
5. ' Contention of learned counsel for the appellants is that there is no deliberate and wilful default on the part of the appellants as rent for the month of April, 1987 was tendered on 4th May, 1987 and rent for the month of May, 1987 was tendered on 1-6-1987 but when it was refused, rent was sent through postal money order on 6-6-1987 being rent for the months from April to June, 1987 but when the postal money order was refused, rent was deposited in M.R.C. No,545 of 1987 amounting to Rs,360 for three months from April to June, 1987 on 6-7-1987 and further that on 10th of April, 1987 the original tenant, the predecessor-in-interest of the present appellants, also expired consequently there was delay in the tender of rent and further that as the electricity charges were payable to the KESC, therefore, nonpayment of the same would not entail the penalty provided for default in payment of rent under section 15(2)(ii) of Rent Ordinance. He has placed reliance upon
(i) Muhammad Shafi v. Mst. Zohra Kliatoon (1983 CLC 346), (ii) S. Feroze-ud-Din Baweja v. Shahid Hussain (1994 M LD 2248) and (iii) Badruddin v. Muhammad Yousuf (1994 SCM R 1900) in respect of his contention.
6. ' Learned counsel for the responders has argued that as per terms of agreement Exh.A/1 the rent was payable in advance in the first week of every calendar month and as per admission of the appellants/tenants, rent for the month of April, 1987 was tendered out 4-5-1987 (though it was not tendered), it would amount to default, so also rent for the month of May, 1987 as per admission of the appellants was tendered on 1-6-1987, (though it was not tendered) it would amount to default, as rent for the month of April, 1987 was payable at least by 22nd April, 1987 and rent for the month of May, 1987 was payable by 22nd May, 1987 but having not been paid or tendered, it amounted to default. He has placed reliance upon Abdul Rauf v. Shah Nawaz (1997 CLC 646) in support of his contention. His further contention is that as per terms of agreement, the shop premises was to be used for medical and general store and not for residential or any other purpose, but it was lying closed and was being used for parking the motorcycle, therefore, there has been violation of term of agreement, ' I have heard the learned counsel for the parties, perused the record and proceedings of the case and the case-law cited by the learned counsel for the parties.
7. The admitted position as per agreement of tenancy Exh.A/1 is that monthly rent was payable in advance in the first week of each English calendar month. The appellants admit that rent for the month of April, 1987 was not paid in the first week of April. 1987, so much so it was even not paid till 22nd April, 1987, so also rent for the month of May, 1987 was not paid in the first week of May, 1987 till 22nd May, 1987 as required under section 15(2)(ii) of Rent Ordinance where fifteen days period of grace is to be added to a date mutually agreed in the agreement. However, rent for the month of April, May and June, 1987 was sent through postal money order on 6th June, 1987 for which the respondent Ghulam Moinuddin in his cross-examination has shown his ignorance whereas appellant Mst. Sadrunnisa in para.4 of her affidavit-in-evidence has stated that postal money order for sum of Rs,360 being rent from April to June, 1987 was sent to the respondents on 6-6-1987 and this statement of Mst. Sadrunnisa was not challenged in the cross- examination by the learned counsel for the respondents. The above statement of appellant Mst.
8. Sadrunnisa is also stated in her legal notice dated 19th July, 187 which was not replied by the respondents. It is also an admitted position that rent for the months of April, May and June, 1987 was deposited in M.R.C. No,545 of 1997 on 6-7-1987. So far the tender of rent personally by appellant Akhtar Yousuf for the months of April, May and June, 1987, the same has been denied by the respondents and the said Akhtar Yousuf, who is said to have tendered, has not been produced before the Rent Controller and his affidavit-in-evidence has not been filed so as to face the test of cross-examination. Exh.D/6 postal money order receipt and Exh.D/5 postal money order coupon did prove that amount of Rs,360 was sent to one Ghulam Moinuddin by one Akhtar Yousuf, the same being rent for the months of April to June, 1987. The above admitted fact would show that the appellants did not tender rent for the month of April, 1987 by 22nd April, 1987 and for the month of May, 1987 by 22nd May, 1987 in terms of para.1 of tenancy agreement, therefore, there would be default in the payment of rent for the said two months period. So far the rent for the month of June, 1987 it having been tendered by 6th June, 1987, through postal money order would be within the due date, therefore, there could not be said. To be a default in the payment for the said month. So far the delay in the tender of rent for the month of April, 1987, it has not been denied by the counsel for the respondents that the original tenant the predecessor-in-interest of appellants expired on 10th April, 1987, therefore, there could be a justification for the appellants to have delayed the tender of rent due to shock and grief of the family of the appellants but so far the rent for the month of May, 1987 there could not be said to the justification in making tender of rent after the due date viz 22nd May, 1987, consequently non-payment of rent within due date for the month of May, 1987 would be a wilful default in the payment of rent. In the circumstances the contention of learned counsel for the appellants has no merit that there was no wilful default in the payment of rent at least for the month of May, 1987.
9. ' So far the non-payment of electricity charges it is stated by the counsel for the appellants that it was paid as per Exh.D/8 but it would not prove the entire payment of arrears of electric charges.
10. However, as per para.13 of tenancy agreement, the appellants/ tenants were to make payment of electricity bill directly to Karachi Electric Supply Corporation on the due dates, consequently non- payment of electricity charges could not be pressed into service for the commission of default in the payment of rent. Reference may be made to Badruddin v. Muhammad Yousuf (1994 SCM R 1900) in para.15 of page 1907 has held:--- "We may also point out that if under the terms of the tenancy a tenant is liable to pay directly the electricity and/or gas charges to the company concerned and there is no liability on his part to pay the same to the landlord, in that event, the landlord cannot press into service the ground of default on the ground of nonpayment of electricity and/or gas charges though he may be entitled to press into service the breach of the terms of the tenancy for seeking ejectment, if on account of default in payment of electricity and/or gas charges, the company concerned disconnects the supply and thereby impair the utility and the value of the demised premises."
11. ' In the instant case also the electricity wills were to be paid directly to the company, therefore, non-payment of it cannot be pressed into service towards the commission of default in the payment of rent. However, reach of the said terms of tenancy would be ground for eviction within the meaning of section 15(2)(iii)(c) of Rent Ordinance as held in the above noted case. In the circumstances, the contention of learned counsel for the appellants has merit that non-payment of electricity charges could not be pressed into service towards the default in the payment of rent in the circumstances of instsnt case.
12. ' Next contention of learned counsel or the appellants is that the learned Rent controller has erred in holding that there has been infringement of the terms of tenancy agreement whereby the shop premises was used for other purpose than for which it was out.
13. The respondents in the eviction application have stated that the shop was noted out for the purpose of carrying out the business of medical and general store but the appellants were not using for the same but were parking the motorcycle in it and have kept the shop closed. This statement is reiterated in the affidavit-in-evidence of Ghulam Moinuddin and his veracity in the said respect could not be shaken so much so that the affidavit-in-evidence of Waqar Yousuf who was said to be carrying on business of medical and general store was not filed consequently he was not tendered for cross-examination to deny the testimony of Ghulam Moinuddin in his affidavit-in evidence in the said respect. Besides above Exh.A/2 is the electric bill for the months of May, 1991 showing the arrears of Rs,1,625.70 and Exh.A/3 is the electric bill for the month of September, 1992 showing the arrears of Rs,2,960.91 in respect of same consumer number of which payment slip Exh.D/8 has been filed by the appellants. In view of the above documentary evidence it could safely be said that the appellants failed to pay electricity charges directly to KESC in time, therefore, there was infringement of para.13 of tenancy agreement.
14. ' In view of aforesaid evidence I find that there is no merit in the contention of learned counsel for the appellants that the shop was being used for which it was let out and further in view of evidence there has been infringement in respect of terms and conditions of tenancy agreement whereby the appellants failed to pay electricity charges to K.E.S.C. In time.
15. ' In view of aforesaid evidence and reasonings I find no merit in this appeal which is hereby dismissed. However, three months period is given to the appellants to vacate the premises subject to deposit of rent.