P L D 1986 Karachi 67 (PLP)

5. In support of his case the appellant examined himself (Exh. 1) and filed affidavit in evidence of his own father and Attorney Abdul Aziz (Exh. 2). On behalf of respondents, affidavits in evidence of Fazal Elahi Sheikh (Exh. 3) and Khurshid Rashid a partner of respondent 2 were filed and all the witnesses and deponents were cross‑examined by their respective counsel.

6. I have gone through the evidence of the aforesaid witnesses with the help of the learned counsel for the parties who produced certified copies of the depositions which were returned to them after perusal. It is also not necessary to refer to their depositions in detail as Mr. Muhammad Sharif the learned counsel for the appellant has confined his arguments to the question as to the date when monthly rent is payable. In this regard he has relied on two letters, dated 11th February, 1974 (Exh. 1/1) and, dated 21st October, 1974 (Exh. 1/2). Before I discuss the letters I may state that it is admitted and agreed by the learned counsel for the parties that a cheque, dated 26‑7‑1977, for Rs. 3,300 being the rent for three months was sent by the respondents to the appellant which was refused and thereafter on 7th August, 1977 the rent for three months was deposited in Court in Rent Case No. 2437 of 1977. It is also agreed that the terms containing the agreement, dated 10th September, 1971 (Exh. 1/4) do not contain any date for payment of advance rent. Therefore, the only point raised by Mr. Muhammad Sharif learned counsel for the appellant for consideration is whether there is any agreement fixing the date for payment of rent. In this regard Mr. Muhammad Sharif learned counsel for the appellant has relied on two letters as aforesaid. It would be convenient if the contents of both these letters are quoted in extenso hereinbelow :‑ Letter. dated 11th February, 1977 "I am in receipt of your letter of 7th instant and have been pleased to note that you have taken over the building 50‑Banglore Town from your mother. I have also received a letter from your mother confirming of this transfer. As you have stated correctly that I have paid Rs. 6,000 as six months' advance to enable you to carry out certain repairs and painting etc. of the house. It was agreed by your mother that I can continue to stay in the said house as long I wish to. I am pleased to reconfirm that I have no intention to shift to any other place immediately. Should there be any such move I shall of course let you know in time. I shall henceforth be pleased to pay monthly rent regularly within the first week of every month. Should you desire to draw a lease deed on the terms and conditions as specified in the original agreement except advance rent clause. I shall be glad to enter into one with you. Would you, therefore, come over to my office during office hours to sort it out." Letter, dated 21st October, 1974 "I. wish to acknowledge the receipt of your letter, dated 10th September, 1974. Agreeing to your request the house rent stands enhanced to Rs. 1,100 per month, with effect from 9th September, 1974. As such, the house rent for the months of September and October, 1974 comes to Rs. 2,

200. A sum of Rs. 287 was spent by me for the purchase of Curtain Rails as accepted and confirmed by you. Accordingly, the Cheque No. 084986, dated 21st October, 1974 for Rs. 1,913 drawn on United Bank Limited, Saleh Muhammad Street Branch, Karachi, is enclosed herewith, the receipt of which may please be acknowledged. Henceforth, you will receive cheque for monthly rent on or about 10th of every month. There are, however, some urgent repairs needed which I am sure you will depute someone to come and do the needful. Thanking you I remain."

7. The perusal of the first letter would show that respondent 1, in this letter has stated that henceforth he would pay monthly rent regularly in the first week of every month. He has also expressed his readiness and willingness to enter into fresh lease agreement on the terms and conditions as specified in original agreement except advance rent clause. This letter was not replied to at all by the appellant.

8. In the other letter he has stated that henceforth the appellant would receive cheque for monthly rent on or before the 10th of every month. It is admitted position that this letter was also not replied to] nor the offer was otherwise accepted. The necessary ingredients to constitute it an agreement are missing. At best these letters contain' promise to pay rent as stated but the same is without consideration because to constitute an agreement there should be reciprocal promises forming the consideration for each other.

9. In this regard, the argument of Mr. Abdul Hafeez Lakho learned counsel for the respondents was that this offer was made by Sheikh Fazal Elahi not on behalf of opponent 2, who were the real tenants, under the agreement, dated 10th September. 1971 and who were a registered partnership firm as stated by Khurshid Rashid, the partner of respondent 2 in his affidavit. He further pointed out relevant cross- examination of the partner of the respondents. It reads : "Pak. Global Corporation is a firm. It is registered one under Partnership Act. I do not remember the number of registra tion, but can be produced. Our firm was registered in year 1971 or 1972. In the beginning Mrs. Rafakat Shaheen, Mr. M. A. Zafar and Mr. Khurshid Rashid were the partners. ' Presently, there are two partners namely Mrs. Rafakat and Mr. Khurshid Rashid as Mr. M. I. Zafar is dead."

10. Without going into this question, I am of the view that the terms contained in the two letters could not be considered to be agreement within the meaning of section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959, for respondent 1 in the first letter expressed his willingness B to enter into an agreement on the terms and conditions agreed to earlier vide (Exh. 1/4), but admittedly no such agreement was entered into. Indeed the attorney of the appellant in his cross‑examination admitted that "It is correct to say that applicant Shahid Nawaz and the Opponents have not entered into flesh agreement of tenancy but there were exchange of letters". Moreover, it is an admitted fact that no letters in reply to (Exhs. 1/1 and 1/2) were produced in evidence.

11. Even otherwise, in the circumstances of this case even if there was a default in the payment of rent I would not consider it to be a wilful default for two reasons. Firstly, respondents had sent the rent by cheque, dated 26th July, 1977 which was refused and thereafter, they stated depositing the rent in Court. The first deposit was made on 7th August, 1977 within 60 days of the expiry of the month of June, 1977. It may be worth mentioning that payment of rent by cheque was the usual mode of payment. Secondly, it was pleaded that the appellant had been receiving rent in lump sum for two months or three months which pleas was also not denied. I may state that this also supports the contention of Mr. Abdul Hafeez Lakho learned counsel for the respondents, that the rent was payable within 60 days and on the expiry of the month and not in advance as claimed.

12. In any case, on the facts and circumstances of this case the discretion has to be exercised in favour of the respondents.

13. I may record that Mr. Lakho also submitted that the tenant was respondent 2 and not respondent

1. But I do not consider it necessary to go into this question. The finding of the Controller on the issue of default is correct and he has rightly dismissed the application.

14. For all the aforesaid reasons I dismiss this appeal, leaving the parties to bear their own costs. A. A. Appeal dismissed.