1992 PLP 2495 (CLC)

(iii) Whether opponent is a nuisance? (iv) What should the order be? The respondent Badiul Hassan filed his affidavit‑in‑evidence and also produced the judgment of the High Court passed in F.RA. No.812/82 on 19‑9‑1985. The appellant also filed his affidavit‑in‑evidence and did not. produce any document in support of his case. Both the parties were cross examined also. The learned Rent Controller found the Issue No.2 against the present appellant while the issues Nos.l and 3 were answered against the respondent/landlord. Accordingly, the ejectment application was allowed. Hence this appeal. I have heard Mr. Abrar Hassan, the learned counsel for the appellant while none has appeared on behalf of the respondent. Mr. Abrar Hassan, the learned counsel for the appellant after taking me through the above facts and various orders passed in the previous litigation has submitted that after the judgment was announced by the High Court on 19‑9‑1985, the appellant offered the rent to the respondent but he refused to accept the same and, therefore, the appellant continued to deposit the rent in the High Court as he was doing earlier during the pendency of the appeal and under the orders of the High Court passed therein. He has further submitted that the appellant had paid the rent till date and, therefore, in the first instance. there was no default and the default, it any, would be only of technical nature for which the appellant is. not to be burdened with the penalty. In support of his contentions, he has placed reliance on the following cases; A. Malik Aman v. Khawaja Abdul Aziz (1991 SCMR 68). B. Abdullah Ghangro and another v. Mst. Tahira Begum and another (1988 SCMR 970). C. Major (Retd.) A.S.K. Samad v. Lt: Col. (Retd.) A. Hussain (1987 SCMR 1013). I have gone through the above‑cited three judgments of the Hon'ble Supreme Court. It may be observed that in all the said three cases, the facts showed that an order under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) was passed and the same was not complied with. In these three cases the defence was that during the pendency of the rent proceedings the tenant was depositing the rent in Court of Rent Controller as the landlord had not accepted the rent. In these circumstances, it was held that the default, if any, would be technical nature and, therefore, the tenant was not to suffer the punishment therefor, but the facts in the present case are somewhat different. In this case previously there was a litigation between the parties which admittedly came to an end on 19‑9‑1985 when the landlord's case was dismissed. It is also admitted that during the pendency of previous litigation, the rent was being deposited by the tenant in the High Court. The present rent case was filed subsequently by the landlord on the grounds mentioned therein. As the previous litigation had come to an end it was an obligation, rather duty cast upon the tenant to have offered the rent to the landlord and it is only when the landlord refuses or avoids to accept the rent from the tenant, the tenant could have resorted to ,q the other modes of payment, i.e. the remittance through money order or deposit in the Court of Rent Controller. It would be advantageous to reproduce the provisions of section 10 of the Ordinance here which show as to what was mandatorily required of a tenant: `

10. Payment of rent.‑‑(1) The rent shall in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the 10th of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord 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 be 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." Subsection (2) of the above section 10 of the Ordinance shows that primarily it is the duty of the tenant to pay or at least offer the rent to the landlord. In the case of Ghulam Nabi v. Muhammad Sachal 1986 CLC 2858 Syed Abdul Rahman, J., has held that under section 10 of the Ordinance, a tenant is to seek the landlord to pay him the rent wherever he resides. Even the above provision itself is very clear on the point. Subsection (3) of the above‑said section 10 of the Ordinance provides that it is only in case the landlord has refused or avoided to accept the rent that the tenant can send the same by postal money order or deposit with the Rent Controller within whose jurisdiction the premises is situate. This provision, therefore, shows that the burden is on the tenant to show that he had offered the rent to the landlord; and that landlord had refused or avoided to accept the same. In the present case the appellant has filed his own affidavit‑in‑evidence where in paragraph 14 13 he simply states that he had tried to pay the rent to the landlord who did not accept the same and as such he continued to deposit the rent with the Nazir of the Court (Rent Controller). As against this, his statement in the cross examination is otherwise. it would be advantageous to reproduce a portion of his cross‑ examination which reads as under:‑‑ Q. Neither you have been depositing the rent in Court nor you have been paying the same to the applicant? Ans. I have been paying the rent to the applicant. I have got all the receipts of the rent paid to the applicant. But I do not have them at present in Court. I have not filed rent receipts with my affidavit." From the fact that the appellant did not produce any receipt of the rent deposited by him in Court, it can safely be concluded that the appellant has failed to prove his case. Also in the case of Syed Hamid Hussain v. Mst. Humaira Riaz 1986 CLC 1873 Munawar Ali Khan, J. (as his Lordship then was) has observed that in case the tenant did not offer the rent to the landlady in the first instance, he cannot be justified in remitting !.the rent either by money order or by depositing the same in Court In view of the above facts and case‑law, it can certainly be observed that primarily it is the duty of the tenant to offer the rent to landlord and only in case the landlord refuses or avoids to accept the same, the tenant can resort to other modes of payment of rent as provided in subsection (3) of section 10 of the Ordinance. However, the burden to prove that the landlord had refused or avoided to accept the rent is on the tenant. In the present case except for his own oral words, which also is contradicted in cross‑examination, there is no other evidence on the record to support the said contention of the learned counsel for the appellant. Even the receipts for the rent which he claims to have been depositing in Court had not been produced to support his, contention. In these circumstances, I hold that the tenant has failed to discharge the burden of proof. Accordingly I do not find any reason to interfere with the findings of the learned Rent Controller which are maintained. In this view of the matter, this appeal is dismissed with costs. The appellant shall hand over the vacant possession to the respondent within a period of 60 days from the date of this judgment. A.A./M‑1695/K Appeal dismissed.