1. ' Through this First Rent Appeal the impugned judgment dated 26-7-1995 passed by the learned VIIth Senior Civil Judge and Rent Controller (South), Karachi passed in the proceedings of Rent Case. No,1278 of 1994 allowing the eviction application of respondents and directing the appellant to vacate and hand over peaceful possession of the demised premises to the respondent has been challenged.
2. ' The brief facts of the case of respondent are that appellant is his tenant in respect of Shop No,4, Kuda Centre, built on Plot No, M.R.4/17, Ali Akbar Street, Achi Qabar, Jodia Bazar, Karachi at the agreed rental of Rs.165 per month exclusive of electricity and other charges, but the appellant failed to pay rent to the respondent with effect from 1-1-1994, therefore, on the ground of default in payment of rent he on 18-9-1994 instituted against appellant eviction proceedings seeking eviction of appellant from the said case premises.
3. ' In his written statement the appellant took the plea that as per practice he had offered to pay advance rent of the demised premises to the respondent for the period of January to June, 1994, amounting to Rs.990; but the respondent did not accept the same and demanded exorbitant higher rent to which the appellant did not accede. On failure of the respondent to receive the tendered rent, as aforesaid, the appellant on 9-3-1994 sent a sum of Rs.990 through money order, which was not accepted by the respondent and money order was returned, therefore, on 7-4-1994 he sent another money order which was also refused so again on 13-4-1994 third money order for the said sum of Rs.990, being the amount of rent from 1-1-1994 to 30-6-1994 at the agreed rate of Rs.165 per month was sent to the respondent by the appellant but it was also not accepted. In the said circumstances the appellant filed an application in the Court of VIIth Senior Civil Judge and Rent Controller (South) Karachi being Miscellaneous Rent Case No,773 of 1994 (Muhammad Iqbal v.
4. Liaquat Dawood Kukda) under the provisions of section 10 of the Sindh Rented Premises Ordinance, 1979 seeking permission of the Court to deposit arrears and future rent of the demised premises in favour of respondent and after relevant orders having been passed on the said miscellaneous Rent Case a sum of Rs.1,980, the appellant on 18-5-1994, under Court orders, deposited with the National Bank of Pakistan City Court Booth, Karachi and thereafter has continued to deposit due rent in the said proceedings.
5. ' The respondent filed his own affidavit-in-evidence in the matter and was cross-examined by the Advocate of the appellant, when he denied that either the rent was sent through money order or that he refused to accept the same. He stated that his address is not shown in the money order coupons, however, he admitted that rent is being deposited in Court in the proceedings of Miscellaneous Rent Case No,773 of 1994 and first deposit was made on 18-5-1994. He denied that the appellant has not defaulted in payment of rent.
6. ' On behalf of appellant besides his own affidavit-in-evidence two supporting affidavits-in- evidence of Muhammad Irfan Naviwala and Ghulam Mohiuddin were also filed. Ghulam Mohiuddin did not appear for his cross-examination; but Muhammad Irfan Naviwala appeared in Court and he was cross-examined. He supported the case of the appellant saying that the appellant had attempted to pay rent to the respondent who did not receive the same; he also stated that he is a relative of the appellant. In this cross-examination the appellant categorically stated that he had tendered the rent due through three money orders, returned original coupons whereof have been produced in the matter as Exhs.O/1 to 0/3. He further stated that since money orders were not accepted by the respondent, therefore, he under the Court orders passed on his Miscellaneous Rent Case No,773 of 1994 on 18-5-1994 deposited the rent in Court and continues to do so.
7. ' The file of Rent Case No,1278 of 1994 reveals that on 17-4-1995 on behalf of appellant an application, duly supported by affidavit, under section 20 of the Sindh Rented Premises Ordinance, 1979 was filed before the learned Controller with the prayer that concerned postman who went to respondent to deliver the money orders sent by the respondent and the C.O.C. Of the Court to produce R&P of M.R.C. No,773 of 1994 be summoned as Court witnesses. In rebuttal to such application the respondent filed his counter-affidavit opposing the prayer for summoning the concerned postman and the C.O.C. Of the Court and the learned Controller vide order dated 16-7- 1995 dismissed the said application of the appellant.
8. ' The only point involved in the appeal is whether in the circumstances of the case the appellant committed wilful default in the payment of rent for the month of January, 1994 as is alleged/contended by the respondent. The learned Controller in passing the impugned judgment framed following issues:
1. Whether opponent defaulted in payment of rent?
2. What should the order be?
9. ' While giving reasons for his impugned judgment the learned Controller has referred to the following portion of cross-examination of respondent: ' It is incorrect that opponent offered the rent but I refused to accept the same, and wanted to enhance the rate of the rent. It is incorrect that rent was sent through M.O. But I refused to accept the same."
10. ' From the cross-examination of the appellant the learned Rent Controller picked up the following portion: ' "It is correct that firstly I deposited rent in the Court under M.R.C. 773 of 1994 on 18-5-1994 present affidavit-in-evidence and written statement were filed on my instructions, It is correct that contents of para. 4 of this affidavit-in-evidence has not been mentioned in the written statement."
11. ' From the impugned judgment it is crystal clear that the learned Controller has based his judgment on the fact that the appellant, for the first time, deposited the arrears of rent in Court on 18-5-1994, whereas the rent for the month of January, 1994 should have been paid or deposited within the grace period of sixty days and he has failed to show any valid reason or explanation for delayed payment/deposit. The learned Controller placed reliance on the case of Muhammad Subhan and another v. Mst. Bilquis Begum through legal heirs and three others (1994 SCM R 1507)
(2) and Mst. Razia Sultana v. Muhammad Hussain Khan, (1991 CLC 632). In the said Supreme Court judgment it has been held that in case where no valid reason or ground had been pleaded or proved to explain the delay in payment of rent even after grace period of 60 days and also 10 days the Rent Controller can rightly refuse to exercise his descretion in favour of tenant. The crux of the other cited judgment, 1991 CLC 632, is that "where tenant had been negligent in performance of his contractual or statutory obligations in payment of rent and landlord had tolerated default for some time, by accepting rent paid at irregular intervals that could not in any way, be deemed to have established a practice of payment of rent at sweet-will of tenant or that tenant would be allowed to take advantage of his own negligence".
12. ' Learned Advocate for the appellant submitted that admittedly the appellant is an old statutory tenant of respondent as no tenancy agreement was ever executed between the parties. It is argued on behalf of appellant that as per practice the appellant in the first week of January, 1994 had gone to pay the rent to the respondent, who avoided to receive the same and infact demanded that rent should be increased. Again in the first weeks of February and March 1994, attempts were made to pay the rent but the respondent avoided to receive the same, therefore, the appellant tendered to respondent a sum of Rs.900 through money order dated 9-3-1994, which money order was returned to the appellant. On 7th and 13th April, 1994 a sum of Rs.990, being amount of rent for six months, from 1-1-1994 to 30-6-1994 at the agreed rental of Rs.165 per month was tendered through different money orders; but the same were also returned to appellant. The original money order coupons are on record as Annexures/Exhs. 0-I to 0-3. It has further been submitted that since the three money orders sent by the appellant to respondent were not accepted and returned, therefore, the appellant in order to perform his statutory obligation filed against respondent application under section 10 of the Sindh Rented Premises Ordinance, 1979, being Miscellaneous Rent Case No,773 of 1994, seeking permission of learned 7th Senior Civil Judge and Controller (South) Karachi to deposit rent in Court and on grant of such application he on 18- 5-1994 deposited with the National Bank of Pakistan City Court Booth, Karachi a sum of Rs.1,980. It has been submitted by the learned Advocate that since the appellant is statutory tenant of I respondent, therefore, keeping in view the provisions of section 13(2)(ii) the appellant could pay rent within the grace period of sixty days from the due date of payment of rent and as such the rent for the month of January 1994 having become payable on 10th February, 1994 could have been paid upto 10th April, 1994 and in fact the appellant attempted to pay due and future rent vide three money orders dated 9-3-1994, 7-4-1994 and 13-4-1994. It is also urged that since money orders were returned, therefore, Miscellaneous Rent Case No,773 of 1994 was filed and after obtaining permission of the learned 7th Senior Civil Judge and Controller, South, Karachi an amount of Rs.1,980 was deposited in the National Bank of Pakistan, City Court Booth, Karachi and as such no default has been committed. In support of the case of the appellant learned Advocate placed reliance on the case of Sir E.H. Jaffar & sons Ltd. v. Sultan Karam Ali and others (1995 SCM R 330), wherein it has been held that: ' "In absence of mutual agreement between the parties, tenant could pay rent for a month by 10th of the month following the month for which same was due; tenant would, thus, commit no default if he pays rent for a month within 70 days from first day of the following month for which rent was due. Where tenant upon receipt of monthly rent bill from landlord used to pay rent, clause in agreement of tenancy providing for payment of monthly rent in advance would cease to operate and statutory period of sixty days became applicable---Tenant having paid rent within such statutory period would not be deemed to have committed default."
13. It is incorrect that opponent offered the rent but I refused to accept theIn view of the principle laid down in the aforesaid reported decision (1995 SCM R 330) and from the facts of the case narrated hereinabove it is amply clear that the appellant made all possible attempts to pay the rent to the respondent through money order and on his failure to receive the same appellant deposited rent in Court in accordance with the provisions of section 10 of Sindh Rented Premises Ordinance, 1979.
14. ' Learned Advocate for respondent submitted before this Court that there being no proof of tender of rent either personally or through money orders and/or refusal of respondent to receive the same the appellant had failed to prove the legal tender. He also submitted that since the first deposit was made on 18-5-1994 as is held by the learned Controller, therefore, a clear default in tender/payment of rent is evident. To the Court question about the appellant's application for summoning postman and the C.O.C. Of the Court and dismissal of such application by the learned Controller, the answer of the learned Advocate for respondent was that since he was not appearing for the respondent before the Court of learned Controller, therefore, he is not in a position to make any submissions in that behalf.
15. I am of the view that in the circumstances of the case, the appellant had proved that first he made personal attempts to pay the rent to the respondent and on his failure to accept the same appellant tendered rent through money order and ultimately deposited the same in Court hence, no wilful default has been committed by the appellant and the learned Controller erred in holding that deposit of rent in Court on 18-5-1996 being beyond statutory grace period of sixty days was wilful default. The learned Controller, for the reasons known to him, has totally ignored to refer in his impugned judgment the aspect of tender of rent through money orders. The facts of the two cases relied upon by the learned Controller in passing the impugned judgment are distinguishable from the facts of this Appeal. In my humble opinion the facts of the reported judgment, 1995 SCM R 330, are more akin to the present case.
16. Above are the reasons for the short order dated 24-4-1998 whereby I had set aside the impugned judgment dated 26-7-1995 passed by the learned 7th Senior Civil Judge and Rent Controller, South, Karachi, in Rent Case No,1278 of 1994 and allowed the appeal with no order as to costs.