This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the order, dated 23-4-1997 passed by the learned 'Ind Senior Civil Judge/Rent Controller, Karachi Sout whereby Ejectment Application No,594 of 1990 was allowed.
2. Ejectment was sought by the respondent solely on the ground of default in making payment of rent from 1-7-1988 to March, 1990. The appellant contested the claim and denied the alleged default. His case is that the tenancy is old and the respondent used to collect/receive rent periodically at her convenience. Furthermore, whenever rent was offered to the respondent the same was returned on the plea that for one tenant namely the appellant a separate clerk could not be appointed to receive rent or to issue the rent receipt. The appellant also alleged in his written statement that the respondent failed/neglected to prove amenities as well as proper security arrangement. It was also alleged by the appellant that the area where the shop in dispute is situate in a "Pugri" area and he had paid Rs,1,10,000 as "Pugri" to the respondent but he allegedly wanted to let out the premises in question to some other tenant at higher rate.
3. The sole issue of default was answered in affirmative on the basis of evidence led by the parties.
The appellant examined himself while Yousuf the attorney of the respondent filed his affidavit in evidence.
4. I have heard learned counsel for the parties at length and perused the record.
5. Learned counsel for the appellant submitted that the learned Rent Controller failed to take into consideration the case/defence of the appellant that the respondent had been receiving the rent at her convenience and that too periodically but this fact was also not given due consideration. He further submitted that even if it is admitted for argument sake that there was a default then in that case the respondent had a fresh cause of action for which she should have initiated suitable action according to law. Lastly he submitted that the tentative rent order was passed in favour of the previous/outgoing landlord and no fresh rent order was passed in favour of the present respondent/landlord, therefore, when intimation was received by the appellant about the change of ownership the rent was tendered to the present respondent as provided by law and on her refusal the same was tendered regularly through money order. Thus, neither there was any violation of tentative rent order nor the appellant was obliged to seek permission of the learned Rent Controller to remit/tender rent to the incoming landlord on receipt of notice of the change of ownership. Learned counsel for the respondent supported the impugned order and submitted that after filing of the ejectment application the appellant failed to deposit or pay rent as required by law. He also referred to evidence of the appellant wherein he admitted in cross-examination that he had not deposited rent w,e,f, August, 1995. He also submitted that the case of the appellant as disclosed in the written statement is not based on the plea that rent was increased, therefore, he did not pay rent to the landlord but his case is that he has gone to pay rent at the rate of Rs,220 per month but the same was not accepted by the respondent. On the question of acceptance of rent periodically the learned counsel for the respondent submitted that in spite of service of bills the appellant used to pay current as well as arrears of rent in lump sum and in support of this plea he referred to four receipts.
6. On careful examination in the light of evidence on record I find no force in the submission of the learned counsel for the appellant. So far the question of lump sum payment of rent is concerned in my humble view the appellant has failed to prove this plea and even otherwise such payment cannot be approved as being the tenant he was supposed to pay/tender the rent strictly according to law, particularly when the bills were sent to him regularly by the respondent. Although there is no evidence to substantiate the allegation that the respondent refused to accept the rent even in that case the appellant could have tendered the rent through money orders but he did not do so and in his statement he admitted that he did not send money order to deposit the rent in Court till the tentative rent order was passed on 13-1-1991. The other important features emerging from the evidence led by the parties have been carefully examined by the learned Rent Controller particularly the fact that instead of depositing the rent in accordance with the tentative rent order he started sending money orders to the ex-landlady, thus, there is hardly any doubt that the appellant deliberately violated and disobeyed the tentative rent order as has been rightly held by the learned Rent Controller. I also find no force in the submissions of the learned counsel for the appellant that after the change of ownership in the name of Mst. Khatoon Bai it was mandatory that fresh tentative rent order should have been passed or that in case of default the respondent could have filed another rent application on a fresh cause of action.
7. The upshot of the above discussion is that the impugned order being just and proper require no interference and the appeal having no merits is dismissed with costs. The appellant is directed to hand over vacant and peaceful possession of the demised premises to the respondent within 60 (sixty) days but this would be subject to payment of rent regularly according to law.