' JAVED IQBAL, J---This appeal by leave of the Court is directed against judgment dated 11-12-1995 passed by learned Single Bench of the High Court of Sindh, Karachi in F.R.A. No,84 of 1992 preferred on behalf of the appellant whereby the judgment of learned IInd Senior Civil Judge/Rent Controller (Karachi South) dismissing the eviction application of appellant was upheld.
2. Briefly stated the facts of the case are that the appellant filed an eviction application with the averment that a godown on Survery No,151/1, Sheet No,SB-I, Dawood Pota Road, Saddar, Karachi (hereinafter referred to as the demised property) was rented out to respondent at the rent of Rs,59 per month but the respondent failed to pay rent since 1-10-1984 and accordingly on the ground of default eviction was sought. The eviction application was contested hotly and the assertion of appellant about default made therein was repudiated strenuously. The learned Rent Controller after recording the evidence pro and contra and completion of procedural formalities dismissed the eviction application with the conclusion that no default whatsoever was committed. Being aggrieved an appeal was filed by the appellant which met the same fate, hence this appeal.
3. Leave to appeal was granted by means of order dated 3-3-1997, the operative portion thereof is reproduced hereinbelow for ready reference:-- "2. In support of the above petition Mr. Fakhruddin G. Ebiahim, learned Senior Counsel for the petitioner has urged as under:--
(i) That the Courts below without having the relevant counterfoils of the two alleged money orders sent by the respondent containing an endorsement of refusal by the petitioner concluded that factually the petitioner refused to accept the money order.
(ii) That the Nazir's report dated 17-7-1993 (at page 71 of the paper book) indicates that there were number of defaults including for the month of October, 1984."
4. It is mainly argued by Mr. Fakhruddin G. Ebrahim, learned Advocate Supreme Court on behalf of appellant that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and it escaped notice that the respondent failed to produce original rent receipts of landlord, Bank challans of Court deposits and remained unsuccessful to prove that the appellant had refused to accept the money order. It is urged with vehemence that the forged bank receipt (Exh. C-2) has been taken into consideration which should have been discarded having no evidentiary value at all. It is urged emphatically that the report dated 17-7-1993 of Nazir was never taken into consideration which makes it abundant clear that no rent whatsoever was deposited by the respondent and more so, number of defaults were mentioned specifically default for the month of October, 1984.
5. Mr. H.A. Rahmani, learned Advocate Supreme Court appeared for respondent and contended that the concurrent findings derived by the learned Rent Controller and upheld by the learned High Court hardly call for any interference being based on an in depth scrutiny of the entire evidence and free from any illegality or infirmity. It is next contended that no default was committed and the entire amount for the alleged period of default was deposited which could not be mentioned in the relevant ledger/register for the reason best known to the concerned Court officials which aspect of the matter has been examined in depth by the learned Rent Controller and High Court by resolving unanimously that the rent in question was deposited and no default was committed by the respondent. It is also contended that money order was sent to the landlord which was proved in accordance with the provisions as contained in section 10 of the Sindh Rented Premises Ordinance, 1979. It is argued that Shop No,7 which was lying vacant could have been used for the intended purpose which was never shown as non-suitable.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law as contained in the Sindh Rented Premises Ordinance, 1979 and record of the case. The prime contention of Mr. Fakhruddin G. Ebrahim, learned Advocate Supreme Court revolves around the report of Nazir which was considered and discarded with cogent and convincing reasoning by observing that the amount was deposited in ledger No,48/85 and not in 487. The said conclusion was derived after having a thorough scrutiny of the relevant ledger by the learned Rent Controller. The non-mentioning of incorrect ledger number may be due to hiadvertence, accidental omission, sheer negligence and inefficiency or for some other extraneous consideration but the respondent, by no stretch of imagination, can be held responsible for it. We have not been persuaded to agree with the submission of Mr. Fakhruddin G.
Ebrahim, learned Advocate Supreme Court that the relevant registers/ledgers are kept by the Nazir of the Court and thus the reports submitted by him could not have been discarded for the reason that learned Civil Judge/Rent Controller is the ultimate custodian of all such record and report of Nazir cannot be considered as sacrosanct merely for the reason that relevant register/ledger was in his custody. For the omission and lapse on the Court or its official cannot be attributed to the litigants who do not figure in such matters. It is noticable that the respondents have produced all the original receipts including photo copies of bank receipts dated 6-1-1990 and 8-1-1992 which were duly proved by the bank officer namely Muhammad Younus whose statement cannot be brushed aside without any lawful justifiable cause which is badly lacking. It is worth mentioning that receipt dated 8-1-1992 was entered in the relevant ledger/register which is being maintained by Nazir. No convincing or cogent evidence could be led showing that the said receipts were forged or fake. Mr. H.A. Rahmani learned Advocate Supreme Court for respondent has mentioned time and again that no default whatsoever has been committed and at first instance two money orders were sent on 10-11-1984 and 17-12-1984 but on the refusal of appellant the amount was deposited with the learned Rent Controller. It was obviously for the respondent to show money order forms dated 10-11-1984 and 17-12-1984 coupled with two money order receipts having the same dates and thus successfully discharged his burden in accordance with the mode as prescribed in section. 19(3) of the Sindh Rented Premises Ordinance, 1979. We have carefully examined the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 which is reproduced hereinbelow for ready reference:-- "(3) Where he 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 situated."
A cursory glance at the language in which the above subsection is couched will show that it is free from any ambiguity and no scholarly interpretation is called for. It simply means that where a landlord refuses or avoids to receive due rent the same can be tendered by means of money order or in the alternate it can be deposited with the learned Rent Controller in whose domain of jurisdiction the demised property is located. The tendering of rent by means of money order would be in two eventualities i.e, "refusal" or "avoidance" which are not synonymous or interchangeable terms and have been used to cover two different situations. The word "refusal" indicates categoric denial or renouncement in an unambiguous manner by the landlord while the word "avoid" with reference to the context reflects the conduct where the landlord instead of a categoric denial or refusal prefers to remain silent, shows reluctance to receive the rent and becomes unapproachable by keeping himself away to get the issue prolonged "to create the grounds of default". In both the above referred two situations the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 can be invoked. The tendering of rent by means of money order can be proved by producing its receipts, which has been done by the respondent. The only embargo, which can be placed in this particular sphere, is 'that the money order must be sent on a given and correct address. It was never the case of the appellant that money order has been sent on incorrect address. A careful analysis of the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 would reveal that it is not obligatory for the tenant to show and prove that how, when, why and under which circumstances the refusal was made by the landlord.
In this regard we are fortified by the dictum laid down in case titled Fakhar Mahmood Gillani v.
Abdul Ghafoor (1995 SCMR 96) wherein it was. Observed while considering a ,similar proposition that "the rent remitted by money order to the landlord albeit on his correct address shall be deemed to be a valid tender and it has no nexus with the refusal of the landlord to accept the rent.
The responsibility of the tenant is only that he remits the rent through money order and it is not expected of him to follow the postman to its destination". The tenant stands absolved of his responsibility under the law when he tenders the rent due and where it is not accepted by the landlord the tenant cannot be made to suffer. The money order issued by the postal authority in official course of business and produced by the respondent give rise to presumption of remittance especially in absence of any worthy of credence evidence in rebuttal. The eviction application cannot be succeeded merely on the basis of alleged default, which is required to be proved by the landlord. "Default' imports an element of gross negligence, dishonest withholding of rent and something more than mere non-compliance which certainly would imply greater responsibility for satisfactorily establishing "wilful" or "deliberate" avoidance, or "intentional non-performance of obligation regarding deposit of rent by tenant."##T|E## (Habib Bank Limited v. Amanullah 1986 CLC 2917, Muhammad Yamin v. Mashroofullah Khan 1980 CLC 848, Najmuddin v. Zamir Ahmad PLD 1982 Kar. 188, Muslim Commercial Bank v. Karim Bakhtiar PLD 1988 Quetta 1.)"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". Ghulam Muhammad Khan Lundkhor v. Safdar. Ali, (PLD 1967 SC 530). Let we mention, it clear here at this juncture that the landlord cannot be allowed to take benefit and' adopt tactics to make out a ground, for eviction on the allegation that a default has been committed which leads us to the consideration whether in the facts and circumstances of the case any default has been committed or otherwise. A careful analysis of the record would reveal that on 30-1-1985 rent for the period of four months was deposited in M.R.C. No,403 of 1985 and accordingly the question of any default does not arise. The respondent has succeeded to prove the factum of payment of rent by producing all the original receipts as mentioned hereinabove and photocopies of two receipts as already discussed in the preceding paragraphs. It is, however, an admitted fact of the case that entry of a few receipts could not be made in ledger/register No,48/85 by the concerned official of the Court but the same were mentioned in ledger No,487/88 which can be a human error or an inadvertent omission. It appears that the appellant was keen to resort to every device, which he could avail of to secure the respondent's eviction. After having gone through the record of the case we find no scope for interference by this Court for all the two Courts below have held on correct appreciation of evidence produced by the parties .That no default was committed. From all the facts and circumstance as mentioned hereinabove it inevitably follows that respondent had deposited the rent due and thus cannot be held responsible for any default.
7. In the light of foregoing discussion the appeal being devoid of merit is dismissed.