' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the order dated 24-12-1999 passed by the Rent Controller and III-Senior Civil Judge Central, Karachi in Rent Case No,509 of 1993, ordering eviction of the appellant/tenant from the rented shop.
2. Relevant facts of the case are that on 1917-1993 the respondent/landlord filed an application under section 15 of the Ordinance seeking eviction of the appellant/tenant from the Rented Shop No, 28 over Plot No, ST-5, Block 14, Federal "B" Area, Karachi on the grounds of non-payment of rent from October 1992 to June, 1993 and subletting.
3. The appellant/tenant in his reply denied the allegations of non-payment of rent and subletting and stated that due to the bad conduct of the respondent towards his tenants, generally the tenants had to visit his house several times for payment of rent and because of these problems created by the respondent and his refusal from issuing rent receipts the appellant started tendering rent to him through money order and thereafter from the month of October, 1992 he is depositing rent in the office of Rent Controller vide M.R.C. No, 741 of 1992. The appellant further stated that he has not sublet the rented shop to any one and the allegations in this regard are false and baseless. The appellant also pleaded payment of Rs, 2,75,000 towards Pugree of rented shop at the inception of tenancy.
4. On these pleadings of parties, at the stage of evidence the respondent examined himself and produced photocopy of rent receipt dated 22-9-1992 as Exh. A/1 and also two photographs of the rented shop as Exhs.A/2 and A/3. He was cross-examined by the counsel for other side and thereafter his side was closed.
5. From the appellant's side the appellant filed his own affidavit-in-evidence and produced photocopy of letter dated 3-11-1992 as Exh.0/1, postal receipt of this letter as Exh.0/2 and one photograph of the rented shop as Exh.0/3. He was cross-examined by the counsel for the respondent and thereafter side of the appellant was closed.
6. The Rent Controller framed following points or determination in the matter:
(1) Whether the opponent has committed wilful default in payment of rent from October, 1992 onwards?
(2) Whether the opponent has sublet the portion of the premises in question to other person without the consent of applicant?
(3) What should the order be?
7. On assessm ent of oral as well as documentary evidence adduced by the parties, the Rent Controller answered Points Nos.1 and 2 in the affirmative and allowed the ejectment application vide impugned order dated 24-12-1999.
8. I have heard Mr. Zahid Hamid, Advocate for the appellant and Mr. K.A. Wahab, Advocate for the respondent.
9. Mr. Zahid Hamid argued that the findings of the Rent Controller on both the points of default and subletting suffer from misreading of evidence. With reference to point of default, learned counsel contended that the appellant in para.6 of his written objections specifically stated that after remitting rent to the respondent/landlord through money order he started depositing rent from October, 1992 regularly in M.R.C. No,741 of 1992 and thus committed no default in payment of rent.
To justify such deposit of rent, the appellant's counsel referred to the letter dated 3-11-1992 and the postal receipt of this letter dated 4-11-1992 to show that it was due to the conduct of the respondent, as highlighted in the said letter that the appellant was compelled to follow the alternate course of depositing the rent in Court. Referring to the provisions of section 10 of the Ordinance he further contended that the language of this section clearly indicates that refusal by the landlord in not a condition precedent for exercise of option of deposit of rent in the office of Rent Controller by the tenant. He further argued that the mode of tender of rent through money order and deposit of rent in Court are at par and it is the choice of the tenant to follow any of these two modes. Coming to the facts of the case with reference to the question of default, learned counsel also referred to the certified true copy of statement of account in M.R.C. No,741/1992 to show that rent from the month of October, 1992 onwards was regularly deposited in the office of Rent Controller in favour of respondent/landlord without commission of default in payment of rent for any month and rather in advance and after passing of rent order in the present rent proceedings on 28-5-1994 the appellant is now regularly depositing rent in the present rent case and thus committed no default in payment of rent for any month.
10. On the point of subletting, Mr. Zahid Hamid contended that mere production of photographs Exhs.A/2 and A/3 was not sufficient for the Controller to hold that the appellant had sublet the rented shop, especially when these photographs filed by the respondent were challenged by the appellant having been obtained through camera technique. He lastly contended that the rented shop was taken on rent by the appellant on Pugree basis as clearly admitted by the respondent in his cross-examination and in such circumstances the order of eviction passed against the appellant is extremely harsh and unjust and liable to be set aside. To fortify his submissions on the point of default learned counsel referred the case of Muhammad Masood Bhatti v Moinuddin Khan (1998 CLC 703) and on the point of subletting he relied upon (1) Wali Muhammad v Dr. Tajamul Hussain (1992 CLC 2253); (2) Messrs Jameel Sons & Company v Muhammad Aslam and 3 others (1992 M LD 1014) and (3) Abdul Mateen v Muhammad Hussain (late) through Legal heirs and another (1997 CLC 216).
11. Replying to the above submissions Mr. M.A. Wahab submitted that the respondent never refused to accept rent from the appellant and in such circumstances there was no justification for the appellant to deposit rent in Court and thus such deposit cannot be construed as a legal or valid tender/payment or rent in favour of respondent. He, however, did not dispute that the appellant had been depositing rent of the rented shop in Court in M.R.C. No,741 of 1992 and such deposit of rent in Court was made regularly and without any delay as is evident from the certified true copy of Ledger No,217 of 1992 of Rent Case No,741 of 1992.
12. On the point of subletting, learned counsel contended that the appellant in his cross- examination has admitted that the business of Kundan Broast was being run in the rented shop by his tenant and thus, the point of subletting was proved. In support of his arguments, learned counsel relied upon the following cases:
(1) Azeemuddin (deceased) through his Legal Heirs v Mst. Hamida Begum and 2 others (PLD 1993 Kar. 50).
(2) Haji Kassam through Legal Heirs v Syed Rahim Shah (1997 M LD 3240). Fazal Elahi v Gul Khan Ahmed Qureshi (1997 SCM R 945).
13. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the case record.
14. From the material available on case record it is evident that rent up to the month of September, 1992 was paid to the respondent and thereafter the appellant started depositing rent in M.R.C. No, 741 of 1992 and continued to deposit rent in Court regularly until the time of passing of rent order in the present rent proceedings on 28-5-1994, and thereafter rent is being regularly deposited in the present rent proceedings. If all these deposits are taken into account as valid tender/payment of rent then no default in payment of rent has been committed by the appellant/tenant for any month. This factual position has also not been disputed by the learned counsel for the respondent before me. In this background of the matter, on the issue of default, the only point for consideration left in this case is that whether such deposit of rent in Court made by the appellant could be considered as a valid tender/payment of rent in favour of respondent or not. In order to appreciate the correct legal position in this regard, it will be useful to reproduce here section 10 of the Ordinance which is relevant for this purpose: "10. Payment of rent. ---(1) The rent shall, in the absence of any date of fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the months for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord rent, who shall acknowledge receipt thereof in writing.
(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.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall the produced and accepted in proof of the payment of rent: Provided that nothing contained in this section shall apply in the case pending before the Controller on the commencement of this Ordinance."
(Underlining is for emphasis)
15. A plain reading of above-quoted provision of law would show that use of word "or", which is normally used in disjunctive sense, in sub-rule (3) of section 10 of the Ordinance at two places is significant. In the first place use of word "or" in-between the words "refused" and "avoided", which carry different meanings, denotes a situation where a tenant can make a valid and legal tender of rent to the landlord despite, as such, there is no refusal of landlord from accepting rent from his tenant but the tenant could show that the landlord by his conduct avoided to accept rent. In the second place use of word "or" in-between the two modes of payment of rent prescribed under sub-rule (3) viz. To pay rent by postal money order and deposit with the Controller, visualizes a situation which puts both the modes at par and thus, gives an option to the tenant to follow any of the two modes for tender/payment of rent to the landlord. However, such a construction and interpretation of section 10(3) of the Ordinance giving both options to the tenant may lead to a situation where the tenant may exercise such options for causing harassment and inconvenience to the landlord which may defeat the spirit of subsection (2) of section 10 of the Ordinance. Thus, to give a more pragmatic and rational interpretation to the above provision of law and to check and restrict such discretion of the tenant to a reasonable extent, the real test for examining the validity or otherwise of tender/payment of rent would be dependent on examination of overall conduct of the landlord and tenant in each case and the satisfaction of the Controller that whether tender of rent by money order or deposit of rent in the office of Controller, as the case may be, was justified and bona fide or the same was mala fide aimed at causing harassment and inconvenience to the landlord. In the former case, same will be considered as valid tender/payment in the later case as invalid.
16. Reverting to the instant case it is evident from record that though the appellant/ tenant could not show that the landlord/ respondent refused to accept rent from him. However, other assertions of the appellant justifying his deposit of rent with the Controller of the area through M.R.C. No,741 of 1992 are substantiated from the material available on the case record. The appellant has placed on record a photocopy of letter dated 3-11-1992 with its postal receipt dated 4-11-1992, containing correct address of the respondent, contents of this letter go to show that through this letter the appellant expressed his grievance in the following words: REGISTIRED POST {{URDU TEXT}}
17. Though a photostat copy of this letter was filed by the appellant with his written objections but the respondent in his affidavit-in-evidence did not deny either receipt of this letter or its contents.
In addition to this in the cross-examination of appellant neither the receipt of this letter by the respondent was specially questioned by him nor the contents of the same were disputed. It is also an admitted position that for some time rent of the rented shop was remitted by the appellant through money order for which also the respondent did not express any grievance. Further, the respondent in his evidence nowhere alleged that the deposit of rent in Court by the appellant was mala fide or aimed at causing harassment and inconvenience to him. On the contrary there is admission of respondent in his cross-examination that for the rented shop he received Rs, 2,75,006 as "Pugree" from the appellant and that he has also tiled ejectment cases against his other tenants.
18. In view of the above discussion and upon assessment of evidence available on record it is clear that the appellant succeeded to show that by his conduct respondent avoided to receive rent and thus, the appellant made a bona fide, legal, valid and proper tender of rent in favour of the respondent by depositing the same with the Controller and committed no default in payment of rent. The view taken in the cases referred and relied by Mr. K.A. Wahab is based on different facts and thus, not applicable to the present case. The findings of the Rent Controller on point No, 1 are, therefore, set aside.
19. Reverting to the point of subletting, it will be seen that in para.6 of the rent application the respondent pleaded that the possession of the rented shop was parted by the appellant in favour of tenant of his adjoining Shop No, 29, who was running the business of fast food in the shop under the name of Kundan Broast. The respondent further stated that signboard fixed on the shop however, contained the name of appellant as owner of Kundan Broast. The respondent tried to substantiate such allegation by filing two photographs of the respondent was strongly denied by the appellant in his written objections wherein he stated that he is in actual physical possession of the rented shop and doing his own business therein.
20. At the stage of evidence, the respondent did not examine any independent witness of the area to substantiate his plea of subletting of rented shop in favour of tenant of his adjoining shop. Not only this but he also did not examine the photographer who took the photographs Exhs. A/2 and A/3 though the genuineness of these photographs was specifically questioned by the appellant.
The respondent in his cross-examination also admitted that before filing of rent case he did not serve any notice on the appellant about the alleged subletting of the rented shop to the tenant of adjoining shop. Thus, there was no convincing and satisfactory evidence available on record to show that the appellant parted with the possession of the rented shop or sublet the same to anybody.
21. On the other hand to rebut such allegations the appellant filed photograph Exh. 0/3 showing board of "Shahbaz" on the rented shop, which according to him name of his son and further in his cross-examination he stated that the photographs produced by the respondent were obtained through mere technique and that he is in possession of rented shop and has not sublet the same to anyone. In such circumstances, the findings of the Controller that the appellant sublet the rented shop also suffer from misreading of evidence and thus, the same are hereby set aside.
21-A. For the foregoing reasons this appeal is allowed, the impugned order dated 24-12-1999 passed by the Rent Controller is set aside and consequently the Rent Case No,509 of 1993 filed by the respondent is dismissed with no order as to costs.