1. ' The present appeal under section 21(1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) filed against the order of ejectment passed by the learned Rent Controller No,VII, Karachi South, dated 3-4-1998 in Rent Case No,768 of 1996 allowing the application and directing the appellant to hand over the vacant and peaceful possession of demised premises within two months to the respondent. The respondent filed rent application as landlord of the building known as Madina Manzil constructed on Plot No,R.Cl1/16-1-3, Ranchore Lines Gazdarabad, Karachi and the appellant as tenant of the respondent since 1989 in respect of the Flat No,3-B of the said building at monthly rent of Rs,75 per month excluding electricity and other charges. The respondent after receiving monthly rent from the appellant used to issue rent receipts to him. After payment of rent to the respondent up to April, 1994 the appellant failed to pay the monthly rent to the respondent as such he committed wilful default in payment of monthly rent. In view of the default in payment of rent the respondent prayed for ejectment of the appellant from the demised premises. After service the appellant filed written statement before the Rent Controller mentioning therein that he is not a simple tenant of the demised premises but a tenant on Pugree basis which is very common, ages old and traditional practice in the city and he has paid in advance a sum of Rs,80,000 as Pugree at the time of inception of the tenancy with an agreed quantum of rent of Rs,75 per month. That the appellant used to pay tender the monthly rent very regularly and punctually and when the respondent-landlord refused to accept the rent, the appellant/tenant started depositing the rent with the Rent Controller in Miscellaneous Rent Application No,536 of 1994 without fail vide Court A/c. No,3/220 Ledger No,60 of 1994 of which the respondent-landlord has due notice and he has malafidely mentioned the default from May, 1994 and the appellant did not commit any default in payment of rent. The appellant filed original receipts of payment of rent in miscellaneous rent case which is Annexure "A-1", page 31 and the appellant also filed copy of the same as Annexure "A", page 17 to the R and P and he also filed photostat copy of the receipt, dated 1-5-1994 issued in the name of the owner. Muhammad Zahoor & Sons which is Annexure "B", page 33 of the appeal showing payment of Rs,150 for the months of March and April, 1994 in the name of Muhammad Aslam the appellant.
2. ' Before the learned Rent Controller the respondent filed his affidavitin-evidence which was cross- examined by the parties. The respondent Haji Muhammad Zahoor also filed photostat copy of receipt showing payment of rent, dated 21-3-1989 for the months of April to June, 1989 for amount of Rs,195 and receipt, dated 1-5-1994 for the months of March and April, 1994 for Rs,150. The appellant also filed his affidavit-in-evidence who was also cross-examined by the learned counsel for the other side.
3. ' After hearing the parties the learned Rent Controller passed the impugned judgment. I have heard Mr. S. Zaman Shah learned counsel for the appellant who contended that the appellant is not a wilful defaulter and the learned Rent Controller has failed to appreciate the factual position. That the appellant after refusal of rent by the landlord deposited the rent in the miscellaneous rent case as such is not a wilful defaulter. Learned counsel for the appellant cited the following case-laws:--
(1) Mrs. Hamida Malik v. Mrs. Riffat Jehan Begum 1985 M LD 121.
(2) Mst. Sara Bai v. Messrs Anis Corporation and Firm 1985 M LD 1093.
(3) Munawar Hasan v. Badiul Hassan 1992 CLC 2495.
4. ' I have also heard Mr. Syed Muhammad Haider, learned counsel for the respondent who pointed out that the appellant has not complied with the provisions of section 10(3) of the Ordinance inasmuch as neither he tendered the rent to the respondent nor the rent was remitted by the postal money order and the appellant deposited the rent without notice to the respondent in the miscellaneous rent case as such he is wilful defaulter and the ejectment order passed by the learned Rent Controller does not call for any interference. Learned counsel for the respondent referred the following caselaws:--
(1) Azeemuddin (deceased) through his Legal Heirs v. Mst. Hamida Begum and 2 others PLD 1993 Kar.
5. 50.
(2) Messrs Bamboath & Co. v. Messrs G.B. Construction Co. 1995 M LD 816.
(3) Riazuddin v. Gul Khan Ahmed Qureshi 1906 CLC 1003.
(4) Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381.
(5) Sultan Ahmad v. Syed Kazim Raza Abidi and 3 others 1998 CLC 663
(6) Muhammad Hussain v. Badiul Hasan Civil Petition No,517-K of 1992 .
(7) Muhammad Muslim (deceased) through his Legal Heir Muhammad v. Mst. Zubaida Begum and others Civil Petition No,208 K of 1996.
6. ' Before I discuss the case-law cited by the learned counsel for the parties it would be pertinent to refer to the evidence recorded by the learned Rent Controller particularly the admission of the appellant in cross-examination to the counsel for the respondent which reads as follows:-- "It is fact that I had not paid any Pugri amount to applicant. Vol. Says that I paid the Pugri amount to one Muhammad Hanif, who was previous tenant of the applicant."
7. "It is fact the I have not sent rent to the applicant through postal money order. It is fact that without sending rent through postal money order to the applicant, I started to deposit rent in M.R.C. No,536 of 1998. I am depositing rent in M.R.C. Since 1993, at the rate of Rs,75 per month. It is incorrect to suggest that I started depositing the rent in M.R.C. Without any reason, on his own will."
8. ' It would also be pertinent to refer here section 10(3) of the Ordinance which reads as under:-- "(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."
9. ' Now I discuss the case-laws cited by the learned counsel for the parties hereinabove as to follows:--
(1) 1985 M LD 121: ' In this matter Agreement of Tenancy was not in existence and the tenant failed to make payment of rent within statutory period of sixty days and default otherwise was found to be only technical in nature.
(2) 1985 M LD 1093: ' In this case the tenant deposited rent due in Court on refusal of previous landlord to acrept the same. Existing landlady failed to withdraw such rent deposited in Court by tenant although she agreed to do so after receiving reply to notice served on tenant by landlady under section 13-A of the Ordinance, 1959. Conduct of tenant in depositing rent in Court, showed bona fide desire to pay rent in Court was found bona fide so far payment of rent was concerned.
(3) 1992 CLC 2495: ' In this matter it was observed that tenant was under obligation to offer rent to land'_'rd and only in case of his refusal to accept the same,' tenant could have resorted to other modes of payment i,e, remittance through money order or deposit in Court of Rent Controller.
10. ' Now I would consider the case-law referred to by the learned counsel for the respondent as follows:--
(1) PLD 1993 Kar. 50: ' The dicta laid down in this case was to the effect that the disputed rent of premises admittedly neither was offered by tenant to landlord personally nor same was tendered by tenant through money order. The mere deposit of rent in the Court of Rent Controller at the subsequent stage to create a safeguard against penalty likely to be imposed for non-payment of rent, would be of no avail to tenant.
(2) 1995 M LD 816: ' The observation of the lordship in this case is that tenant could deposit rent of premises with Rent Controller in miscellaneous case only when landlord had refused or avoided to accept rent. Before depositing rent with Rent Controller of the area, tenant should have sent the rent to landlord by postal money order after tendering same personally to landlord. Tenant having failed to pay rent landlord personally or through Postal Money Order, mere deposit of rent in miscellaneous case by itself, would not amount to compliance of section 15(2)(ii) of Ordinance, 1979.
(3) 1996 CLC 1003: ' The rule laid down in this case was to the effect that eviction on ground of default would be unexceptionable when tenant resorted to practice of depositing rent in Court to cause harassment of landlord.
(4) 1996 CLC 381: ' The learned Judge of this Court in this case observed that tenant is not entitled to deposit rent in Court when he did not tender rent to landlord. Deposit of rent in Court in such case would not be valid payment of rent.
(5) 1998 CLC 663: ' In this case it was found that tenants had themselves admitted in cross-examination that after payment of rent for specified month they had not paid any rent to landlord either personally or through money order. Tenants also failed to send any notice to landlord that they had started depositing rent in Court on failure of landlord to accept the same. Wilful default in payment of rent having been substantially proved through the mouth of tenants themselves. They were rightly found to be wilful defaulters by Rent Controller, and they were rightly found defaulter in payment of rent.
(6) Civil Petition No,517-K of 1992: ' Their Lordships of Supreme Court observed that it was incumbent upon the petitioner to tender rent to the landlord as is mandatorily required under the law. If landlord refuses to accept the rent, then rent can be tendered by money order and failing there rent can be deposited in the last resort in the Court. In this case petitioner was unable to prove or show that he tendered rent to the landlord which was refused or sent any order to him. On this point findings of the two Courts below are concurrent and against the petitioner. Resultantly leave in this case was refused by their Lordships of the Supreme Court.
(7) Civil Petition No,208-K of 1996: ' In this case also their Lordships of the Supreme Court have observed that when neither the rent amount was paid or sent directly to the respondents after the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 nor was it received by the respondents through money order and refused, it could not be regarded as valid tender of rent in terms of section 10 of the Ordinance.
11. ' I have gone through the material placed with the case and minutely perused the rent application, written statement and the documents filed by the parties. I have also gone through the evidence recorded by the learned Rent Controller. I have also given my careful thought to the cross- examination done by the counsel for the parties. It is not disputed that the appellant was inducted as tenant by the respondent which is proved through the receipts produced by the parties in evidence referred to hereinabove. The mode of payment was that the appellant used to make payment of rent to the respondent and obtained receipts in the name of Muhammad Zahoor & Sons, when all of sudden the appellant did not pay the rent personally to the respondent. On the plea the respondent refused to accept the rent and if there was any refusal then it was incumbent upon the appellant to have remitted the rent to the respondent through postal money order and on refusal of the same thereafter he should have deposited with the Rent Controller with notice to the respondent and nowhere in evidence it- has come on record that the respondent refused to accept the rent. It is also not proved by the appellant that he remitted the rent to the respondent through the postal money order which was refused whereas admission of the appellant in cross- examination to the effect that he did not send the rent to the respondent through postal money order and without sending rent through postal money order to the respondent he started depositing rent in Miscellaneous Rent Case No,536 of 1994. He also admitted that after receiving rent the respondent used to issue rent receipts to him. So far as payment of Pugree amount it has been held that this is an illegal transaction which has never been appreciated by the Courts.
12. Moreover the appellant has admitted in cross-examination that he did not pay any Pugree amount to the respondent wheres he paid the amount to one Muhammad Hanif who was previous tenant of the respondent.
13. ' With due respect to the case-law cited by the learned counsel for the appellant I am of the considered opinion that for the facts, circumstances and reasons the same is not relevant and helpful to the case of the appellant. Whereas the case-law referred to by the learned counsel for the respondent in my humble opinion is very much relevant and applicable to the facts of the present case. Moreover, the appellant has not complied with the provisions of section 10(3) of the Ordinance: ' For the facts, circumstances, reasons and case-law mentioned hereinabove I am of the opinion that this appeal is devoid of merits and substance which must fail and the same is hereby dismissed with no order as to costs. However, the appellant is given six months' time to hand over peaceful and vacant possession of the demised premises to the respondent from the date of the order. On 28-1-1999 after hearing the parties the appeal was dismissed by short order. Above are the reasons for the same.