1986 PLP 717 (CLC)

The respondent instituted the above Rent Case alleging default without specifying any period or the month for which the default was alleged. The application was made on the basis of a compromise which was arrived at between the parties in First Rent Appeal No.26/80 disposed of by this Court on 15‑1‑1981. It was alleged in the rent application that the above compromise has been violated by the appellant without specifying the specific period for which default was allegedly committed by the appellant. It will be pertinent to reproduce here paragraph 6 of the application wherein the allegation with regard to default /violation of the compromise entered into between the parties was alleged. It reads as follows:‑

16. That the opponent has not only committed default in the payment of rent regularly in the Miscellaneous Rent Case No. 3053/68 and also as required under the law. It is respectfully submitted that the opponent has also failed to pay the arrears of rent within thirty days and has further failed to pay the monthly rent to the applicant as directed by the Honourable High Court of Sind and as required by the law." The appellant in his written statement denied that he has committed default as alleged in the application and took the plea that he deposited rent upto April, 1981 ‑in Miscellaneous Rent Case No. 3053/78 and, thereafter, as the landlady /respondent refused to accept the rent he started depositing rent with the Rent Controller from May, 1981 onwards The fact that the rent was deposited by the appellant upto April, 1981 in Miscellaneous Rent Case No. 3053/78 and future rent was deposited in another Miscellaneous Rent Case No. 2997/81 was not disputed before the Rent Controller. It was however, alleged before the Rent Controller by the respondent that in spite of the deposit of the aforesaid rent in the Court it amounted to default. The Rent Controller after considering the evidence and the contentions of the parties reached the following conclusion:‑

"The opponent has stated that he had deposited the rent for the month of May and June in fresh Rent Case No. 2997/81 in the name of the applicant because the opponent did not receive rent amount from him on his personal approach. The opponent has stated that when opponent approached the landlady for payment of rent for the month of May and month of June and when landlady refused to receive the rent then the opponent deposited rent in fresh Miscellaneous Case No. 2997/81. In the absence of date of deposit of rent in Miscellaneous Rent Case No. 2997/81 for May and June, 1981 and in the absence of producing the rent account. It is evident that opponent did commit a default in payment of rent and has made himself liable for ejectment. I, therefore, answer this issue that opponent has committed default in payment of rent for the month of February, 1981." The conclusion reached by the Rent Controller is neither correct in law nor on the facts of the case. It is an admitted position that prior to the present Rent Application 3403/82 the landlady instituted Rent Case No. 2690/78 against the present appellant. It appears that prior to the institution of Rent Case No. 2690/78 the appellant moved in application for deposit of rent by way of Miscellaneous Application No. 3053/78 in which he was permitted to deposit the rent as well as future monthly rent. The Rent Case No. 2690/78 was dismissed by the tent Controller on 11th December, 1979 but in spite of dismissal of Rent case on merits the appellant continued to deposit monthly rent in the Miscellaneous Rent Case No. 3053/78 and it is not disputed that upto 25th February, 1981 he had deposited rent for the period ending April, 1981. From the order of Rent Controller passed in Rent Case No. 2690/78 First Rent Appeal was filed in this Court which was disposed of on 15‑1‑1981 by consent order which recorded the compromise entered into between the parties which reads as follows:‑

"l. That the respondent abovenamed accepts the appellant as her landlady and she is entitled to withdraw the rent deposited in the Court of the Rent Controller by the respondent who shall also pay the arrears of rent, if any, and continue to pay the monthly rent regularly in future. The arrears, if any shall be paid by the respondent within thirty days hereof.

2. That the respondent accepts hereby by virtue of this writing the notice under section 13‑A of the Sind Rent Restriction Ordinance, 1979, and waives notice thereunder by registered post and shall not claim any further notice and will be estopped and likewise any past defaults on the part of the respondent in payment of rent will not be used by the appellant against him.

3. That this settlement is without prejudice to the rights of the respective parties to initiate any legal proceedings against each other, if any, of them so desires, before the Controller or otherwise. The above cited appeal may be disposed of in terms of the above compromise, with no order as to costs. Sd/‑ S.M. Saieed Sd/‑ Yousuf Rafi Counsel for respondent Counsel for the appellant." It is an admitted position that after 15th of January, 1981 the appellant deposited rent in Miscellaneous Rent Application No. 3053/78 on 25th of February, 1981 which covered the rent upto April, 1981. It is also an admitted position that thereafter he started depositing rent from May, 1981 and onwards in the Miscellaneous Rent Case No. 2997/81. The dates of deposit made in the two Miscellaneous Rent Cases are shown in the statement of accounts which was produced before the Rent Controller at p. 69 of the R & P. The correctness of the deposit and their dates as mentioned in the statement is not disputed before me. It is, however, contended by Mr. Yousuf Rafi the learned counsel for the respondent that First Reference Appeal No. 26 of 1980 having been disposed of by consent order dated 15‑1‑1981 the deposit of future rent by the appellant in the Miscellaneous Rent Case No. 3053/78 constituted default in payment of rent on his part as the appellant had undertaken in the compromise to pay rent directly to the respondent after the date of the compromise. I have already reproduced the compromise arrived at between the parties in First Rent. Appeal No, 26/80 and although it is written in the compromise that from the date of the order the appellant will pay rent but it is not specified that the payment shall be made to the respondent directly. Apart from it the liability for payment of rent cannot in these circumstances be said to have not been discharged when the tenant has deposited the rent before expiry of the statutory period with the Rent Controller concerned. In the present case it is not disputed that the deposit of rent made on 25th February, 1981 covered the rent for the months of February, March and April, 1981 and, therefore, there was no default within the meaning section 15 as the rent for these months was not only paid within time but was deposited in advance. Thereafter the rent was deposited in a fresh Miscellaneous Rent Case No. 2997/81 from 14‑7‑1981 onwards for the period from May, 1981 and future rent. The dates on which the deposits were made were within the time allowed by law to a tenant t pay the rent and, therefore, it could not be said to be a default on the part of the appellant. In these circumstances I am unable to agree with the Rent Controller that default on the part of the appellant was proved for the months of May to July or from February to April, 1981. 1 accordingly accept this appeal, set aside the order of the Rent Controller. The rent application instituted by the respondent for eviction of the appellant stands dismissed. There will, however, be no order as to costs. A.A. Appeal accepted,