1991 PLP 1858 (CLC)

Syed Irtiza Hussain Zaidi for Appellant. S. Mukhtar Hussain for Respondent. Date of hearing. 16th January, 1991 This judgment will dispose of the above two F.R.As. as these appeals raise common question of law and facts and arise out of somewhat similar circumstances. The appellants are tenants in respect of separate tenements and the respondent is the landlady of the tenements. The facts leading to the filing of the above appeals are that the respondent is the landlady and owner of the building situated on Plot No.S.B.4/63, Won Hoffen Street, Saddar, Karachi and the appellants Mrs. Ameta Fernandas is the tenant in respect of plot situated on 2nd Floor of the said building at the monthly rental of Rs.32 and whereas appellant Mrs.Balbina Fernandas is the tenant in respect of a plot situated on 3rd Floor of the said building at the monthly rental of Rs.

50. The respondent filed separate eviction applications against the appellants. The case of the respondent, as set out to the eviction applications, is that the appellant in Appeal No.36/87 paid rent to her upto the month of January 1980 and the appellant in Appeal No. 37/87 paid rent upto the month of April, 1979 and thereafter avoided to pay the rent despite requests made to them in this behalf. The appellants committed a wilful default in payment of rent due to which they are liable to be evicted from the case premises under section 15 of the Smdh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). The appellants filed separate written statements and contested the eviction applications. The appellants denied the allegation of default. In F.RA. No. 36 of 1987 the appellant contended that she used to pay rent to the respondent/ applicant in advance for full year from the very beginning and paid the rent upto December, 1980 and when the appellant, as usual, offered the rent in January 1981 for the full year of 1981 in advance the respondent did not receive the rent from her and demanded the appellant to increase the rent at an exorbitant rate to which the appellant did not accede and then the appellant sent the rent m advance for full year, of 1981 by cheque through registered A.D. Post and the same was refused and then started depositing rent in Court in Miscellaneous Rent Application No. 1135 of 1981 in advance for full year and had deposited in advance for the year 1984. Whereas in F.R.A. No. 37 of 1987 the appellant contended that she used to pay rent to the applicant/respondent in advance in full year, for half year and quarterly from the very beginning and paid the rent upto February, 1981 and when the appellant as usual offered the rent in January 1981 for the period from 1st March to December,1981 in advance the applicant/respondent did not receive the rent from her and demanded her to increase the monthly rent at an exorbitant rate to which she did not acceded and then the appellant sent rent in advance for the said period from March. 1981 to December, 1981 by cheque through registered A.D. Post and the same was also refused and then the appellant started depositing rent in Court in Miscellaneous Rent Application No. 1134 of 1981 in advance for the said period and since then for every following year the appellant is depositing rent in Court regularly m advance and has deposited rent in advance for the year 1984. The appellants contended that it is false to say that they have avoided at any time to pay rent to the respondent and the same is denied. The respondent filed affidavits‑in‑evidence of her son and duly constituted attorney. He repeated the same facts as disclosed in the eviction application. He stated that Dr. Abdul Samad used to receive the rent from the tenants who used to pay the same at his clinic or house. He denied that the respondent demanded increase in rent from the appellants never paid rent in time and always used to pay in lump sure despite his objection. He denied the suggestion that the appellant sent rent by cheque dated 12‑4‑1980 and 1‑12‑1980. Dr. Abdul Samad stated in his affidavit‑in‑evidence that the appellant have not paid rent from May 1979/January 1980 respectively. He stated that he had not demanded for increase in rent. To a suggestion, he denied that he received cheques sent by the appellants. The appellants filed their affidavit‑in‑evidence. They reiterated the same facts as were disclosed in their written statements. They also produced copies of letters sent to Dr. Abdul Samad. Dr. Abdul Samad denied the allegation of refusal of registered letter. I feel that in order to prove that the cheques were sent by letters to Dr. Abdul Samad but he refused to accept, the appellants should have examined the postman of the beat or led some other evidence in this respect. The Controller did not accept this contention on cogent grounds, with which I have no reason to differ. The question of default has to be viewed in the light of section 15 of the Ordinance according to which tenants commit default if they had not paid or tendered rent due by them within fifteen days after the expiry of the time fixed by agreement of tenancy with their landlord or in the absence of any such, agreement, within sixty days from the period for which rent is payable. It is an admitted position in these cases, that the appellants were in arrears for more than twelve months at the time they made first deposit in Court. It cannot. therefore, be disputed that the appellants committed default within the meaning of the C Ordinance which could not be wiped off by subsequent deposit of rent by the appellants, in view of the dictum laid down in a case reported in 19721 SCMR

262. For the aforesaid reasons, I see no substance in these appeals which are hereby dismissed. In the circumstances of the case, I make no order as to costs. The appellants are directed to hand over possession of the premises to the respondent on or before 30‑6‑1991. The above are the reasons for the short order dated 16‑1‑1991 passed on conclusion of arguments dismissing the appeals. A‑1054/K??????????????????????????????????????????????????????????????????????????????? Appeals dismissed.