1989 PLP 475 (CLC)

(3) Whether opponent has committed acts of nuisance, diminishing value and utility of the said room? (4) What should the order be?" He answered the issues Nos.l and 2 in the negative and issue No.3 as not proved. Consequently, the ejectment application was dismissed with no order as to costs. Hence this appeal.

4. I have heard the learned counsel for the parties at sufficient length. MrAbdul Sattar Memon, learned counsel for the appellant, made a statement at the outset that he would not press the ground regarding nuisance.

5. Making his submission on the ground of default the learned counsel for the appellant invited my attention to section 10(2) of the Ordinance which provides that "The rent shall, as far as may be, be paid to the landlord who shall acknowledge receipt thereof in writing. He then also referred to subsection (3) ibid which lays down that "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". The argument developed by the learned counsel is that, the respondent admittedly failed to tender the rent in terms of subsection (2) to the appellant and hence notwithstanding that he later on deposited the rent in Court it would not be treated, in law, a valid tender. He then referred to para. 5 of the affidavit‑in evidence of the appellant wherein he has deposed that the respondent had wilfully and deliberately failed to pay and/or tender the rent of the said room with effect from January 1982 in spite of repeated requests either at the rate of Rs.85 per month or at the rate of Rs.70 per month. He also drew my attention to the following statement of the appellant made during his cross‑examination by the respondent: "In January 1981 1 went to opponent for collecting rent at the rate of Rs.85 per month including Rs.10 water charges tax imposed by K.M.C. and Rs.5 of Chowkidar who lifts up the water to the overhead tank. I had verbally demanded Rs.85 monthly from January 1985 from the appellant which he has refused." He also submitted that there is nothing either in the affidavit of the respondent or in his deposition in Court to show that he had in fact made any effort to tender the rent personally to the appellant. The counsel, therefore, further relying upon a decision of a Single Bench of this Court in the case of Syed Ahmed Ali v. Khurshid Ali Khan and 3 others (1986 MLD 1249), urged that tender of rent through money order or by deposit in Court, in the absence of landlord's refusal or avoidance to accept rent, is not a valid tender thereof. The facts of this case are that the tenant allegedly paid the rent to the deceased landlady for the period from January 1980 to April 1980 but she did not issue rent receipts owing to her illness. The rent for the said period was, later on, stated to have been sent by money order, after the expiry of the landlady on 8‑7‑1979. The learned Judge observed that it was within the knowledge of the appellant that she was not .alive how then he sent these money orders to her? It is in that context that the learned Judge observed: . There is absolutely no evidence that during her lifetime Mst. Muhammadi Begum refused or avoided to accept rent. On the contrary, the appellant's plea is that he continued paying her rent even during the period of her illness though she could not issue receipts for the payment. How then he sent the rent to her by above money order coupons has not been clarified. Thus, the case of the appellant stands further falsified. In the absence of evidence of landlady's .refusal or refusal of her heirs, namely, the respondents, sending of rent by the appellant by money order or by depositing the same in Court was obviously not valid tender. Consequently, even if it be believed that he had sent the rent by money order or deposited in Court he cannot be held to have discharged his liability of the payment of the rent." In the facts of the instant case it has come, however during the cross‑examination of the appellant that he had gone to the respondent to collect the rent and since he had demanded the rent at a rate higher than the usual rent, which was refused by the respondent meaning thereby that the rent was offered at the agreed rate but it was not acceptable to the appellant. However, in the facts of the case it will be going too far to hold that on account of refusal of the respondent, as stated A during his cross‑examination to pay higher rent the respondent had failed to discharge his legal obligation of tendering the rent personally to the appellant. The legislature itself has not rendered it absolutely mandatory that in all cases the rent should first be paid personally to the landlord but it has itself provided in so many words that "as far may be" it should be paid to the landlord. In the facts of this case the proposition of law, as sought to be enunciated by the learned counsel on the basis of the authority cited above is, in my opinion, misconceived and whatever observations have been made by the learned Single Judge in the above case, these were on the basis of the facts of that particular case and could not be taken to have laid down, as a principle of law diversed of the facts of the case. If really the above authority seeks to lay down the law as purported to be enunciated by the learned counsel for the appellant then I feel sorry to humbly observe that I cannot subscribe to that view. The learned counsel for the appellant did not contest the fact that the rent for the month of January 1982 onwards was regularly deposited in Court and if that tender is held to be valid then there was no default. The appeal, therefore, on this issue fails. The counsel also referred to the judgment of this Court in the case of Syed Hamid Hussain v. Humera Ghayas (1986 C L C 1873). The facts of this case, I find, are distinguishable.

6. There now remains one issue to be dealt with, namely whether the respondent had converted the use of the residential premises to commercial premises as alleged by the appellant. It seems appropriate at this stage first to reproduce the contents of the application in this regard which are contained in para. 6 of the application. It reads as under: "

6. That the opponent has changed the use of the premises, without permission, consent and/or knowledge of the applicant." It has come in evidence that the appellant is the owner of the building wherein the said room is situated since 1980. 1t is not mentioned in the application since when it was converted into a commercial premises. The case of the respondent, on the other hand, is that he was using it ever since it was let out to him as a commercial premises, as stated above. The learned Rent Controller while answering this issue in the negative in favour of the respondent and against the appellant held as under:‑‑ The facts stated by the applicant are quite ambiguous. Similarly is the statement of applicant in Para‑1 of his affidavit‑in‑evidence. In these circumstances, it follows that case premises was not residential but it was a room. Under these circumstances there appears absolutely no change in the rented premises. I, therefore, decide point No.2 in negative:'

7. In support of his contention that it was actually a residential premises converted into a commercial one without the permission of the appellant, the learned counsel placed reliance on the counterfoils of the rent receipts in ExhA/1 wherein it is shown as "House No.1". The next document on which he sought to place reliance is PT Form Exh.A/2 wherein it is shown to be a residential flat.

8. The learned counsel for the respondent, on the other hand, supported the impugned order. He contended that the appellant has failed to establish that the room in question was let out for residential purposes. On the contrary, it has come in evidence that it was being used right from the very beginning for commercial purposes and no objection was taken to it by the appellant when he became the owner thereof in the year 1980. 1n reply, Mr.Abdul Sattar Memon, learned counsel for the appellant, emphasised that the burden was on the respondent to prove that he had taken it for business purposes. The counsel also emphasised that there are certain receipts pertaining to godowns wherein it has specifically been mentioned by scoring out House Number and inserting Godown Number instead. The learned counsel for the respondent also cited the following authorities in support of his case. (1) P L J 1987 Karachi 24. (2) 1986 M L D 1380.

9. There can be no dispute that a building may consist of a residential as well as non‑residential premises and the nature of construction of the premises continues to be the same notwithstanding the fact that they are actually used otherwise than for which they are meant. The appellant, as already pointed out, did not mention in the application as to when the respondent had converted the use of the said room from residential to commercial purposes. I find that there were certain exchange of notices between the parties prior to the filing of the application. In his notice the appellant had given the same version that the respondent had changed the said room from residential to godown but without mentioning the period since when it was so done. In reply to the notice the respondent had stated that he was an old tenant of the premises and it was let out for the storage of his goods, by the then landlord at the rate of Rs.50 per month and that since the appellant's becoming the landlord thereof, after purchase, it was continued to be used as such. Having this information from the respondent it was all the more necessary, in my opinion, for the appellant to be precise in his statement with regard to the conversion of the demised premises. No doubt the room appears to have been meant for the purposes of residence but if it was let out to the respondent for business purposes, as deposed to by him, then there was' no occasion for ordering eviction of the‑respondent on the ground of conversion of the residential premises into commercial premises. The user of the premises at the time when the appellant purchased the building or at any subsequent time as a residential premises has not been established by the appellant.

9. In this view of the matter I do not feel inclined to interfere with the impugned order of the learned Rent Controller. Consequently, the appeal on this issue also fails.

10. In the result the appeal is dismissed with no order as to costs. H.B.T./R‑73/K Appeal dismissed.