' Appellant/landlord, through instant appeal has challenged the orders of the learned Rent Controller No, IV(S) Karachi, dated 30-5-1998, whereby ejectment of respondent/tenant was declined, holding no wilful default has been committed.
2. Brief facts as averred in the ejectment application under section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Rent Ordinance) are that, appellant let out to the respondent office premises No,701 in Unitowers, Karachi at a monthly rent of Rs,12,895 payable in advance, under an agreement to lease, dated 31-7-1991, which was initially for a period of 3 years, renewable twice, for a similar period, subject to increase in rent by 20% at the time of each renewal. Admittedly rent was increased on completion of first term with effect from July, 1994.
3. Through ejectment application, the appellant claimed ejectment on the ground of two sets of default, one set of default is alleged from April, 1994 right up to February 1995, for which period, it is stated that rent was paid, but much after committing default.
4. For the second set of default, it is pleaded, that since March 1995, no rent has been paid.
5. The respondent, as regard first set of default, has asserted that, rent used to be collected by the rent collector of the appellant, who used to collect the rent in time but used to issue receipt at his own, convenience much later, it is his case that, since the rent was received, without objection, appellant/landlord waived his right, if any, to eject on this score.
6. As regard second set of default, the defence of the respondent is that, rent for the March to May, 1995 was tendered through cheque, dated 11-7-1995, and rent for the months of June to August, 1995 was paid through cheque, dated 16-9-1995 and both the cheques were delivered to Mr. Shaikha, the Rent Collector, who did not issue any receipt for the same, thereafter, rent for September and October, 1995 was tendered personally to the appellant, as well as to their rent collector, who refused to receive the same mala fidely later rent for the said two months was sent through Pay Orders, dated 4-11-1995 and 6-11-1995 , respectively and on its being returned undelivered, same is being regularly deposited in M.R.C. No,,1517 of 1995, as such, it was pleaded that no default, has been committed.
7. One of the appellant examined herself and examined Rent Collector Mr. Sabir, respondent chose to examine one of its director Mr. Inamur Rehman, in support of their respective case.
8. On the pleadings of the parties learned Rent Controller struck down the following issues.
(i) Whether opponent defaulted in payment of rent from March, 1995 to September, 1995?
(ii) What should the order be?
9. On assessing the evidence led by the parties, the learned Rent Controller held that, the opponent has not made wilful default in payment of rent, consequently dismissed the ejectment application.
10. Syed Zubair Shah, Advocate for the appellant, has vehemently argued that the finding of the learned Rent Controller on the issue of default in payment of rent is erroneous and is not based on proper and objective assessm ent of .Evidence and instant case, on facts and circumstances do not warrant exercise of discretion by the learned Rent Controller in favour of the respondent/tenant.
11. In order to appreciate the contentions of both the learned counsel, I will take up the issue of two set of default separately, as claimed by the appellant.
12. Before adverting to the contentions of both the learned counsel, I have noted that the learned Rent Controller while framing issues, has only casted issue on the second set of default, ignoring first set of default altogether, although same was pleaded specifically in the ejectment application; and specific denial was made by the respondent. No doubt, Rent Controller is not bound to formally frame issues as required under the Order NIV of Code of Civil Procedure, 1908, wherein, elaborate procedure is laid down, the parties, also have a right to move to the Court for framing, amending and stricking out the issues before the evidence is led, in contrast, subsection (5) of section 19, of the Rent Ordinance, Cast duty on the Rent Controller to frame issue covering whole gamut of the actual and real controversy arising between the parties and state them briefly in the judgment, such duty is to be discharged carefully, as the parties do not have an opportunity to apply for framing, stricking out and amending any issue pertinent to their respective rights and claims arising out of pleading and failure to frame issues encompassing the whole gamut of actual and real controversy may prejudice the claim of either of the party, and controversy raised may not be effectively determined, appreciated and resolved finally.
12. From the record of the proceedings it appeals, that, first set of default, was not only pleaded by the appellant but evidence was also led on it, likewise respondent controverted in the same manner.
14. As far as, the first set of default, "whether the respondent/tenant paid rent for the months of April, 1994 to February, 1995, after committing default? If so to what effect?" is concerned, learned counsel argued that since inception of tenancy rent was being paid in advance, as per mutual agreement in accordance with terms of-the Agreement, to lease, and it was since April, 1994 opponent is paying rent after committing default. He has taken me through the record to show that, throughout the tenancy .Monthly rent receipts were being issued right from July, 1991 up to March 1994, but the opponent paid rent for the months of April to June, 1994, on 14-7-1994, rent for the month of July, 1994, was paid against receipt, dated 3-12-1994, like wise rent for the months of August was paid on 30-1-1995, rent for November and December, was paid on 16-3-1995 and lastly rent for January and February, 1995 was paid against receipt, dated 12-6-1995, and above trait of payment of rent sufficiently establishes that the rent for the period from April, 1994 up to February, 1995, was paid after committing, default as such, he argued that respondent is, liable to be ejected.
In support, of his contentions he relied upon PLD 1996 SC 724, PLD 1984 SC 32.
15. Learned counsel for the respondent argued that, the Rent Collector of the appellant used to collect rent at his convenience and more over used to issue receipt even later, he argued that since the opponent had realistic the rent, as such, appellant have waived their rights if any and Rent Controller has rightly exercised the liscretion. He has placed reliance on 1986 3CMR 1857 and 1983 CLC 346.
16. I have considered the arguments of the learned counsel on the issue of first Set of default and perused the finding of the learned Rent Controller, who extensively relied upon the cross of the applicant, who admitted that, "It is correct to suggest for rent collector used to receive rent himself in late". [t was further admitted by the appellant that 'We did not inform the opponent that the tent Collector Mr. Yousuf Sheikha had been removed by us from receiving the same".
17. The evidence of the respondent that he Rent Collector namely Yousuf Shaikha used to collect the rent and issued receipt at its convenience has not been discredited by he appellant, on the contrary, the appellant lad admitted the same, in cross-examination.
18. From the evidence of the parties it cannot be held that tenant has made late payment in rent as from evidence it has come on record that Rent Collector, used to collect the rent and issued receipts at his convenience, there is no cavil to the proposition that tenant under the Rent Ordinance is obliged to pay rent as and when the same become due and payable in accordance with provisions of section 10 of the Rent Ordinance, 1979, and on his failure to discharge his obligation, to face the consequences, as envisaged under section 15(2)(ii) of the Rent Ordinance, in the instant case, no doubt, the receipts issued are of much later date and prima facie it appears that rent has been tendered beyond the time fixed under section 10 of the Rent Ordinance but, the veracity of the date of issuance of rent receipt has been sufficiently discred by the respondent, and the appellant in cross-examination, had admitted at one point, that "It may be that our rent collector used to obtain the rent with late" and at other, she admitted "It is correct to suggest that our rent collector used to receive rent himself in late" although she denied a suggestion that "we did not issue rent receipt in time." In my view, since consequence of failure to pay rent as and when it becomes due are serious, and once the tenant is able to discre dit the assertion of landlord regarding delay, payment of rent he cannot be saddled with consequences of default, case-law cited by the appellant regarding first set of default are distinguishable, consequently appellant must fall, as far as first set of default is concerned.
19. Now I will advert to the contentions of the learned counsel for the appellant, pertaining the Second set of default, covered by the issue framed by the Rent Controller.
20. It is contended that no payment of rent since March, 1995 has been made. The respondent denied the allegations and stated that he tendered the rent for the months of March to May, 1995, through cheque, dated 11-7-1995 and rent for June to August, 1995, through cheque, dated 16-9- 1995, to the rent collector, Yousuf Shaikha, who did not issue receipts.
21. Learned counsel 'for the appellant argued that no such cheques were ever issued. He took me through the evidence of the appellant, who categorically denied in para.4 of her affidavit in evidence the facture of issuance of said cheques by the respondent and in cross-examination categorically denied all such suggestions of having herself or through her rent collector received cheque, dated 11-7-1995 and, dated 16-9-1995.
22. Likewise her witness and Rent Collector Sabir, denied having any knowledge of delivery of said cheques to previous rent collector Yousuf Shaikha and in response to a suggestion that rent for the period of September and October, 1995, through Registered letter, dated 6-11-1995 were returned undelivered he stated "that address mentioned in the envelope was not correct".
23. The respondent's witness stated in cross-examination that "No any receipt of cheque for the period from March to August, 1995 were not issued by Mr. Yousuf Shaikha, the rent collector of applicant. I did not asked from Mr. Yousuf Shaikha, through any letter or from the land lady for issuance of rent receipt in respect of the cheques, dated 11-7-1995 and 16-9-1995. I did not try to pay rent personally to the applicant. I do not remember the month when I offered the rent to the rent collector and he refused to accept the rent. I have enquired and verified from the bank authorities that two cheques, dated 11-7-1995 and 16-9-1995 have not been en cashed in favour of the applicant".
24. From the record it is established that the respondent admittedly deposited the rent covered under above referred two cheques for the period from March, 1995 to August, 1995 i,e, for six months altogether, pursuant to the tentative rent order, dated 16-10-1997, passed an application under section 16(1) of the Rent Ordinance, i,e,, after more than two years.
25. It was vehemently argued by the appellant that, the learned Rent Controller, while passing tentative Rent Order, held that "payment through cheques has not been established, prima facie" and directed the respondent to deposit the rent covered by the cheques, and placed reliance on 1990 CLC page 711.
26. It was argued that, the said position did not change, even after the evidence and the respondent failed to prove the delivery of said two cheques, as such, there was no justification to arrive at a different conclusion. Section 10 of the Rent Ordinance, provides modalities to be adopted by the tenant, where the landlord, for any reasons refuses or avoided to accept the rent. Provision of section 10 of the Rent Ordinance, is a complete answer to meet such situation and to avoid the consequence of default. This provision embodies the principle that debtor should seek creditor and not vice versa. Protections available to the tenant under section 13 of the Rent Ordinance, that "No tenant shall be evicted from the premises in his possession" is only available provided, he discharges his obligations and duties as enjoined upon him under the Rent Ordinance, and once it is proved, that tenant has failed to discharge his obligation and duties including failure to pay the rent in the manner and time set forth, in Rent Ordinance, the protection will no more remain available, on the contrary failure to discharge the obligation by the tenant, will give corresponding right to the landlord to claim ejectment of such tenant.
27. Recourse to section 10 of the Rent Ordinance is to be made by the tenant promptly and diligently, tenant should not sit idle and await ejectment notice, such an attitude would only reflect his contumacious conduct, it may be remembered that law favours diligent and not the delinquent.
28. In the instant case, record shows that the respondent has not taken any prompt and diligent action and failed to discharge his duty to pay the rent, in the manner and time as required of him in accordance with the provisions of section 10 of the Rent Ordinance, wilful default as regard second set of default, under the facts and circumstances of the case, stands proved and established. It is now settled-law that non-payment of rent is a negative fact and initial burden is on the landlord to establish that the tenant has not paid rent as required under section 15(2)(ii) of the S.R.P.), 1979, and once the landlord steps in the witness-box and states on oath that he has not received the rent due for a particular period, then the burden of proof would shift to the tenant who would be required through convincing and affirmative evidence to, prove that rent for that particular period has been paid.
29. Above view is supported by PLD 1982 SC 465, 1990 CLC 711 and 1997 CLC 216.
30. In instant case, the appellant had categorically stated that she has not received rent for a period from March, 1995 till the date of filing of ejectment application i,e,, 8-10-1995, respondent asserted that he had paid rent for the disputed period through two cheques referred to above, to the rent collector, but no receipt was obtained. He further asserted that rent for the month of September, 1995 was tendered personally and on refusal, rent was sent through Registered Post, which was returned undelivered and consequently started depositing rent in M.R.C. No,1517 of 1995 and first deposit for the months of September and October, 1995 was made on 3-12-1995.
31. The respondent/tenant could not with stand the test of cross-examination, as reproduced in earlier part of the order.
32. The respondent/tenant in this case failed to discharge the burden that lay heavily upon him, to affirmatively prove through convincing evidence that he had paid rent covered by two cheques referred to above, neither; was he able to prove that he had tendered the cheques to the rent collector of the appellant. Respondent could have easily produced or summoned the Rent Collector of the appellant who, as stated by him, is still on visiting terms with him, on the contrary he admitted that the alleged cheques were never en cashed, nor he deposited said rent voluntarily in M.R.C. And it was only when he was directed to deposit the same, under the tentative rent order, rent covered under the said two cheques was deposited.
33. The learned Rent Controller while disallowing the ejectment application, over emphasised the efforts made by the respondent to pay and tender the rent.
34. The learned Rent Controller over looked the fact that such efforts were not sincere, and the payment of rent through cheques was not proved, on the contrary it was admitted by the respondent, in cross-examination, that said cheques were not en cashed, and even then the respondent made no efforts to pay the same and waited until the rent order was passed. It was further admitted in cross that he personally did not tender the rent, as stated by him in written statement and affidavit in evidence and rent in M.R.C. Was deposited, after the service of ejectment application was effected upon respondent, all above shows that respondent has committed a wilful default in payment of rent at least for the period from March, 1994 to August, 1994, covered by two cheques, no evidence worth mention, was produced by the respondent that could dispel the observation of the learned Rent Controller, made in the tentative rent order, "that payment through cheques was not proved" and failure of the Rent Controller to advert to this aspect of the case resulted in finding which cannot be sustained.
35. It is settled-law that, payment or tender of rent after committing default is of no avail to the tenant.
36. The preamble of the Ordinance XVII of 1979, indicates that Rent Ordinance strikes balance between the relationship of landlord and tenant, on the one hand it gives protection to tenant against arbitrary threat of eviction and on the other gives rights to the landlord to seek eviction of such tenant who fails to discharge their obligations in accordance with the provisions of the Ordinance. No doubt, ejectment is subject to the satisfaction of the Rent Controller but, such satisfaction must be based on sound legal principles and on objective appreciation of evidence of both the parties as a whole and same should not be based on more subjective assessment of truncated evidence. In the case in hand the learned Rent Controller has based his finding on the cross-examination of the appellant, where in appellant had categorically denied to- have received the cheques, the Rent Controller, altogether failed to take into consideration the admission of the respondent/tenant that the amount of cheques was not en cashed, and the fact the respondent deposited the said Rent pursuant to Rent Order passed after two years of default, such course is neither safe nor, in consonance with settled legal principles, evidence as a whole of both the parties is to be assessed and considered objectively with even hand to arrive at a just conclusion.
37. Learned counsel, for the respondent in the last, vainly argued that, the lease agreement, sought to be relied upon by the appellant is neither registered under section 17 of Registration Act, as required under section 5 of the Rent Ordinance, nor it is drawn on proper stamp paper.
38. In view of the fact that, tenancy is admitted and the appellant, has successfully established default, independently of the terms and conditions of the lease agreement, I am not inclined to advert to the consequence of such deficiency as pointed out and keep the questions alive to be answered in some other proceeding where it may be of direct relevance.
39. In the result, the appeal was allowed by short order, dated 3-5-1999, learned counsel for the respondent requested for one years time, to enable the tenant to make alternate arrangement, the counsel for the appellant agreed to the grant of such time, which was allowed, however, subject to payment of rent regularly in terms of tentative rent order, dated 16-10-1997 passed by the Court below. If, the respondent fails to vacate the premises immediately after the time allowed or on failure to deposit rent, as directed above. Writ of possession be issued without notice.