1979CLC870 (PLP)

Dates of hearing : 17th, 25th March; 5th and 12th April 1976. This appeal is directed against the order dated 24th September 1970, whereby the learned Additional District Judge, Karachi, set aside the order of the learned Rent Controller dated 16th July 1968, directing ejectment of the respondents from the shop in his possession.

2. Briefly narrated the facts of the case are that the respondents were the tenants of the appellant on the ground floor of the building constructed on Plot No. G. T. 6/136, situated in Tank No. 2, Old Town, Karachi. This building had been taken by the respondents for installing a Printing Press therein. As the respondents gave a cause of grievance to the appellant by not making payment of rent for the period from 1st May 1966 to 7th November 1966, therefore on this ground as well as on some other grounds such as nuisance and additions and alterations in the structure of the building, the appellant filed an application in the Court of learned Rent Controller who framed the following issues to decide the case : -- , (1) Whether the opponents have committed default in payment of rent? (2) Whether the opponents have made the construction without the per mission of landlord? (3) Whether the opponents are guilty of nuisance to the occupants of the building? (4) What should the order be?

3. The learned Rent Controller decided all the issues in affirmative and ordered the ejectment of the respondents from the premises against which an appeal was filed which was allowed.

4. In the appellate order the learned District Judge has given sound reasonings so far as Issues Nos. 2 and 3 are concerned and has rightly held that no nuisance was created. In fact the building was given for the installation of a Printing Press and there was no provision made in the lease agreement for installing any particular type of machinery and therefore it could no be said that the machinery installed in the building was heavy and it created greater noise and disturbed the peace of the persons living in the vicinity. .4 Similarly, the finding of the learned Rent Controller in respect of raising construction in the shop also does not seem to be sound because the evidence shows that no such additions or alterations were made which could impair the utility of the building or decrease its rental value. All what the respondents had done was that under the "machan" already constructed in the building they had constructed another "machan" and by this construction it could not be said that the utility of the building was in any manner impaired or it Reduced its rental value.

5. As far as the finding of the first appellate Court on the first issue is concerned, I am unable to agree with it, because the learned Judge has admitted that there was a continuous default in payment of rent for the period from 1st May 1966 to 7th November 1966. However, he has held that since in the month of December 1966, the arrears of rent were sent to the appellant in pursuance of his notice dated 7th November 1966, therefore the default could not be termed as wilful and deliberate. This contention is fallacious on the face of it. Legally it is not the duty of the landlord to collect the rent rather the onus lies on the tenant to pay or tender rent as and when it accrues due against him. In this case since the tenancy had come into being by virtue of a written lease deed it was the bounden duty of the respondents to pay the rent to the appellant by 15th day of each succeeding month. Obviously they failed to do so. In case the respondents were desirous to pay the rent they could do so because their landlord was living just upstairs. The learned Additional District Judge has wrongly held that there was no wilful default on the part of the respondents in making payment of rent. The other alter native which has not been considered by the learned Additional District Judge is that if the appellant had refused to accept the rent, through there is no such evidence on record, the same could be deposited in the Court of Rent Con troller but no efforts seem to have been made by the respondents to deposit the rent in the Court. This aspect of the case should have been taken into consideration by the learned Additional District Judge while reversing the order of the learned Rent Controller, but he overlooked it. There is not an iota of evidence on record to show that during the period above mentioned any effort was made by the respondents to pay the rent to the appellant. It was only after the receipt of notice sent by the appellant that the respondents remitted the rent by money order on 30th November 1966, which was not a tender within time. These circumstances clearly prove that non-payment of rent was intentional and wilful. The findings of the learned Additional District Judge on this issue is therefore erroneous and is hereby reversed.

6. For the foregoing reasons I allow the appeal and set aside the impugned order. The appellant would be entitled to costs also. Since the respondents have installed machinery in the shop, therefore I allow them four months period, which is maximum under the law, to put the appellant in vacant possession of the shop in question. M. Y. M. Appeal allowed.