' JAVED IQBAL, J.---These petitions for leave to appeal are directed against the judgment, dated 17- 9-1999 passed in R.F.As. Nos.171 and 173 of 1998 by learned Single Judge of the High Court of Sindh, Karachi, whereby order, dated 6-3-1998 passed by learned Senior Civil Judge/Rent Controller (IV), Karachi, dismissing the eviction application filed by the petitioner has been set aside. As the above three petitions arise out of the common judgment, we propose to dispose of them by this single order.
2. Briefly stated the facts of the case are that respondents being landlord and owners of Nelson Chambers, I.I. Chundrigar Road, Karachi, filed an eviction application under section 15 of the Sindh Rented Premises Ordinance, 1997, regarding three tenements being office No.5, 2nd Floor, Nelson Chambers, LI Chundrigar Road, Karachi (hereinafter referred to as "property in dispute") against Reckitt & Colman of Pakistan Limited (petitioner) to whom it was rented out at a monthly rent of Rs.10,925 p.m. On the ground of default allegedly committed during the period w.e.f. October, 1994 to March, 1995. The petitioner contested the eviction application and filed written statement and alleged default was denied in a categoric manner. The parties led evidence to substantiate their respective claims and on conclusion of trial the eviction application was dismissed by the learned Controller vide order, dated 6-3-1998. Being aggrieved an appeal was preferred by the respondents which has been accepted vide impugned judgment.
3. It is mainly contended by Mr. Munib Ahmed Khan, Advocate Supreme Court that the evidence which has come on record has not been appreciated in its true perspective by the learned Appellate Court which resulted in serious miscarriage of justice. In support of the said contention it is argued that letter, dated 26-3-1995 written by Shoaib Anwar Ali of M/s. Lotia Estate indicating details of cheques and evidence of Shoaib Anwar Ali were ignored without any rhyme or reason. It is further contended that the appellate forum failed fo appreciate the main contention of the petitioner that change in ownership of the property in dispute was never brought to their notice, and thus, the default which in fact was technical in nature occurred but the rent due was sent in time by means of cheque and accordingly the acceptance of eviction application in appeal by the learned High Court is not in accordance with law. It is also pointed out that petitioner being multinational company has been paying rent regularly and only some delay was occurred in payment of rent which cannot be equated with that of default but the said aspect of the matter went unnoticed resulting in serious prejudice. It is contended that the cheque was not only received by the respondents but it was sent back vide covering letter, dated 26-3-1995 which smacks of mala fides. It is argued that Mr. Shoaib Anwar Ali (attorney for respondents) was appointed on 23-2-1995 who was not well conversant with the prevalent factual aspects of the controversy, and thus, his statement should have been discarded. It is urged vehemently that default, if any, was technical in nature. And could have been ignored.
' Mr. A. Aziz Khan, Advocate-on-Record appeared on behalf of respondents has supported the impugned judgment by arguing that no illegality or irregularity whatsoever has been committed and the entire evidence has been appreciated with great care and caution hence the question of injustice does not arise. It is contended that change of ownership was brought to the knowledge of petitioner in time and moreso, that the default committed was intentional and deliberate.
5. We have carefully examined the order, dated 6-3-1998 passed by learned Senior. Civil Judge/Rent Controller (IV), Karachi, and impugned judgment. The entire evidence has been thrashed out with the eminent assistance of learned counsel. After an indepth scrutiny of the record the A irresistible conclusion can be drawn that it is neither a case of misreading of evidence nor non-reading of evidence and the Appellate Court has scrutinized the evidence with diligent application of mind and the conclusion as derived is in accordance with law and settled norms of justice. In our considered view no lawful justifiable cause is available warranting interference in the impugned judgment. We have not been persuaded to agree with Mr. Munib Ahmed Khan, Advocate Supreme Court that the default was technical which occurred due to change of ownership for the simple reason that change of ownership was brought to their notice vide letter, dated 13-11-1993, contents whereof were never challenged but on the contrary same were admitted by Mr. Ahmad Wahid who appeared on behalf of petitioner while answering one of the questions during cross- examination and in his own words "it is correct to suggest that since November, 1993 to September, 1994 we used to pay rent in the name of Lotia Estate. It is correct to suggest that we did not pay rent from October, 1994 to March, 1995 to Lotia Estate". The said admission negates the version that petitioner was not aware regarding the change in ownership. It is worth mentioning that the factum of payment of rent through cheques could not be proved as neither the cheques were got exhibited properly nor the dates of tendering the cheques were mentioned showing that due rent was in time. Petitioner has also failed miserably to prove that respondents had shown any reluctance or refused to receive the rent pertaining to the months of January and February, 1995 and thus, the petitioner could not discharge his obligation. Even if it is admitted for the sake of argument that the rent was sent by means of cheques but once the default is committed that cannot be wiped out by subsequent payment and the penalty which has been incurred by reason of such a default cannot be staged off by subsequent payment of rent. In this regard we are fortified by the dictum laid down in PLD 1964 Karachi 206, 1973 SCMR 243, PLD 1967 Pesh. 223, PLD 1961. Lah.
788. It is well-entrenched legal position that the "rent sent by cheque being not valid tender, would not wash out effect of default". (1986 CLC 393 and 1985 CLC 241). The contention as agitated on behalf of petitioner that being a multi-national firm the question of default does not arise which was being paid regularly seems to be fallacious because "mere fact that during long period of tenancy, tenant defaulted in payment of rent by few days only will not warrant exercise of such discretion in his favour unless default is due to reasons beyond tenant's control" (PLD 1985 Karachi 47 and 1980 CLC 664). The excuse that change of ownership was not informed or the rent tendered was, received by an unauthorized person or there was no such lapse in past would not make the default unavoidable or for a cause for which the defaulter cannot be held responsible, in this regard reference can be made to 1980 CLC 680. The main contention of Mr. Munib Ahmed, Advocate Supreme Court is not persuasive that the default was technical for the simple reason that "the word "default" connotes an act done in breach of a duty or in disregard of an order or direction". (PLD 1967 SC 530). It transpires from the scrutiny of the record and as discussed above that the petitioner failed to honour his commitment and no cogent explanation could be furnished inferring that the default was not wilful but technical as contended. The question as to what amounts to "default" has been discussed in various authorities and it is well- established legal position as observed by his lordship Mr. Justice Hamoodur Rehman (as he then was) in case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 wherein it was observed that the most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible". In view ofthe criterion as laid down hereinabove the default committed in the case in hand cannot be equated with that of technical default. Another contention raised on behalf of the petitioner pertains to the appointment of Shoaib Anwar Ali (attorney for respondents) on 23-2-1995 hardly renders any assistance to the case of petitioner being irrelevant. Indeed it has nothing to do with the controversy.
6. Looked at from whatsoever angle, no ground for grant of leave to appeal against the impugned judgment has been made out and, accordingly, the petition being devoid of merit is dismissed. The petitioner is directed to hand over the vacant possession within a period of six months subject to payment of rent for which consent has been given by the learned counsel for respondents and in case of failure the property in dispute shall be got vacated without notice.