1986 PLP 1574 (CLC)

Azhar Ali Siddiqui for Appellant. Muhammad Anis for Respondent. Date of hearing: 4th August, 1985. The appellant Ghulam Muhammad is a tenant of the respondents Messrs Karimi Bidi Works in a residential unit No. 4 in Noor House Building, Block No. 2, Plot No. 10, Drigh Township No. 2, Karachi at the settled rent of Rs.185 per month inclusive of water charges and conservancy charges, but exclusive of electricity charges, since 1‑10‑1977. 13scp;t The duration of initial tenancy was 11 months as per written agreement but it continued thereafter, without any written agreement for indefinite period. It is alleged that the appellant made default in payment of rent from the months of October, 1982. The respondents waited for 3 months but did not get the rent and they filed ejectment case, being Rent Case No. 170/83, on 13‑1‑1983, before the XIth Senior Civil Judge/ Controller, Karachi. The appellant resisted the application contending that he had offered the rent to one of the partners of the respondent, but he was advised to keep it for appropriating it towards repairs of the premises he had desired to be carried out. He further contended that suspecting bona fides of the respondents, he tendered the rent by money order in January, 1983, but it was not accepted and he, therefore, deposited the arrears of the rent with the Controller by filing a Rent Miscellaneous Application No. 412 of 1982. He advanced the plea that the respondents were already holding a sum of Rs.1,000 in advance and there was no default in payment of rent in any case. The parties adduced evidence and the appellant gave evidence himself whereas Ghulam Mohiuddin gave evidence for the respondents. The learned Controller held by the order, dated 31‑3‑1984 that the appellant had made default in payment of rent and ordered that he should vacate the rented premises within two months. The appellant has preferred this appeal against the order of the ejectment so passed against him.

2. Mr. Azhar Ali Siddiqui, Advocate appearing for the appellant, has urged that the appellant had been paying rent regularly all along and it was only in the year 1982 that there were negotiations between the parties for carrying out repairs of the premises and the appellant was told that he should retain the rent money for incurring expenditure over the repairs but it was found that the respondents were interested in enhancement of the rent and they maneuvered the situation in such a way that the appellant was made defaulter in payment of rent and ejectment case was filed against him. He has further urged that the respondents were holding a sum of Rs.1,000 as advance money and the alleged arrears of rent could be adjusted from that advance money. He has also urged that after the expiry of the written tenancy for 11 months, there was relationship of statutory tenancy between the parties and the appellant could technically be held defaulter in payment of rent for only one month i.e. the month of October, 1982. Relying upon the provisions of section 15(2) (ii) of the Sind Rented Premises Ordinance, 1979, he has urged that the rent for the month of October, 1982 had become due on 1st November, 1982 and default in payment thereof commenced after the expiry of 60 days and likewise the rent for the month of November, 1982 fell due on 1st December, 1982 and that for the month of December, 1982 fell due on 1st January, 1983 and the default in payment thereof was to commence after the expiry of 60 days of the day the rent had fallen due for each month. According to him, by simple mathematical calculation, there was no default in payment of rent for the months of November and December, 1982 by the time the ejectment application was filed on 13‑1‑1983. The learned counsel for the appellant has cited the cases of Muhammad Yusuf v. Abdullah P L D 1980 S C 298; Messrs Adam Ltd., Karachi v. Messrs General and Rubber Trading Company Karachi P L D 1984. Kar. 106: Muhammad Shafi v. Mst. Zohra Khatoon 1983 C L C

346. In support of his submission that the arrears of the rent could be adjusted from the security deposit of advance money placed with the landlord, he has cited a case, Meharban Ali v. Haji Muhammad Qasim P L D 1976 Lah. 1052 to advance the argument that the ejectment may not be ordered unless default in payment of rent has been deliberate, he has yet cited another case of Tar Muhammad v. Adam 1979 C L C 854 to convass the argument that the tenant having paid rent uninterruptedly for a long duration of tenancy would not commit default in payment of rent in normal circumstances.

3. On other hand Mr. Muhammad Anis, learned counsel for the respondents has contended that it is not disputed that the rent was not paid for the months of October, 1982 to December, 1982. He has further contended that there is only a word of the appellant that he had orally offered rent to the respondents and they had told him to retain it for the purpose of repairs he desired to be carried out to the house and there is totally denial of that fact from the respondents side. He has also contended that the alleged tender of rent was made in the month of January, 1983 after the ejectment case was made in the month of January, 1983 after the ejectment case was filed. According to him, the appellant stands belied by the tenancy agreement regarding the alleged deposit of rent with the respondents as pleaded in the written statements. He has cited a case Malka Begum v. Mehar Ali Hashmi 1984 S C M R 755, where it was held that the tender of the rent after a period prescribed by law is not proper tender and tenant is guilty of default. He has also cited a case of Hakim Fazal Din v. Babu Nawabdin 1982 C L C 784 where it was held that mere testimony of tenant in proof of tender of rent is not sufficient evidence.

4. It is evident from the contentions advanced by the learned counsel for the parties as well as from the evidence on the record that the rent for the months of October, November and December, 1982 was no paid by the appellant at the time it had fallen due. Of course, the appellant could avail of benefit of statutory period of 60 days provided under clause (2) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, but he failed to pay rent for the month o October, 1982 within 60 days after rent for that month had fallen due. It was not casual default as the rent for the months of November and December, 1982 also was not paid till the ejectment case was filed, although default in payment of rent had not become mature by efflux of period of 60 days. The plea of the deposit of Rs.1,000 seems to have been introduced later in order to cover up default in payment of rent. There is clear default in payment of rent for the month of October, 1982, but not for the months of November and December, 1982 as held by the learned Controller. However, deliberate default in payment of rent for one month makes the appellant liable to be ejected and the case law relied upon by the learned counsel for him does not find escape for him.

5. Accordingly, the appellant is liable to be evicted from the rented premises and the order of his ejectment passed by the learned Controller is upheld to the extent of default in payment of rent for one month viz. October, 1982 and the appeal is dismissed with costs.