1998 PLP 663 (CLC)

(2) Messrs Bamboat & Co. v. Messrs G.B. Construction Co. (1995 MLD 816). (3) Haji Kassam through Legal Heirs v. Syed Rahim Shah (1997 MLD 3240). (4) Fazal Elahi v. Gul Khan Ahmed Qureshi (1997 SCMR 945). It would be pertinent to refer the evidence recorded by the learned Controller for just and equitable decision of both these appeals. After the affidavit‑in‑evidence was filed on behalf of the parties, Sultan Ahmed in cross-examination conducted by the learned counsel for the respondents/landlords stated as under: "

I have no receipt of amount of Pugri paid by me to said tenant Baqar. I have no knowledge whether the said tenant Baqar had obtained any receipt from Muhammad Ali Abidi regarding the payment if make for change of receipt. I do not have any receipt if issued by Muhammad Ali Abidi regarding any Pugri or change of receipt. It is correct to suggest that I have not paid any amount of Pugri to late Muhammad Ali Abidi. It is also correct to suggest that I have not paid any amount to Muhammad Ali Abidi for change of receipt in respect of demised shop. It is correct to suggest that Muhammad Ali Abidi has died. After the death of Muhammad Ali Abidi I started making payment of monthly rent to his son namely Syed Kazim Raza Abidi ........... It is correct to suggest that after the payment of rent in the month of July, 1993 to Kazim Raza I have not sent any rent through money order to said Kazim Raza. Voluntarily says that I have tried to make payment to rent to Kazim Raza who has refused to accept the rent and stated that if you are in hurry you may deposit the same in Court. It is correct to suggest that I have not sent any notice to Kazim Raza stating that he has refused to accept the rent. It is‑ correct to suggest that I have not sent any notice to any of the applicants to the effect. that I have started depositing rent in Court. It is correct to suggest that after July, 1993 neither I have offered rent to the applicants nor they have refused to accept." Whereas appellant Farman Elahi in his cross‑examination conducted by the respondent side has admitted the following: "

After death of Muhammad Ali Abidi the rent was being paid to Syed Kazim Raza Abidi through his representatives against receipt. The receipts were issued every month. I know Syed Kazim Raza Abidi. I have paid rent for the month of July, 1993 to Syed Kazim Raza lastly. I produce original Receipt No.212, dated 5th August, 1993 issued for the month of July, 1993 Exh.

1. Whenever the applicant No. l issued receipt I use to sign on counterfoil of such receipt to acknowledge having received the receipt. Some time in my absence my brother used to sign. I see photocopies of counterfoils of Receipt No.212, dated 5th August, 1993, Receipt No.207, dated 5th July, 1993 and Receipt No.202, dated 5th June, 1993 being Annexures A, B, and C. to the ejectment application and I say that said counterfoils bear my signatures. I have not sent any rent through money order. I have not paid monthly rent to the applicant after July, 1993. I have not issued any notice to the applicant before depositing rent in the Court. Even no notice has been issued to the applicant after depositing of monthly rent in Court ....I do not know whether applicants Nos.2 to 4 have appointed applicant No.l as their attorney. I do not know anything about the General Power of Attorney filed by the applicant No.l in this case. I know that Syed Kazim Raza is son of late Muhammad Ali Abidi. Other tenants also used to pay rent to the applicant No.

1. It is incorrect to suggest that at the time of taking the demised shop on rent late Muhammad Ali Abidi or Syed Kazim Raza have not taken any amount of Pugri from me. I have no receipt of any amount of Pugri ....I have not offered rent to the applicants even after receipt of notice of this case and even after filing of written statement. " I would like to discuss the case‑law referred by the learned counsel for the appellants. (1) Sitaldas and 2 others v. Haji Muhammad Saffar (PLD 1984 Karachi 87). In this matter appeal of the landlord was allowed keeping in view the personal requirement of the landlord, whereas in this case ejectment order has been passed merely on account of default in payment of rent. In my humble opinion this authority is not applicable to the facts of the present case. (2) Khawaja Qasimuddin v. Iftikhar Bano (1984 MLD 1213). The learned Judge of this Court has held that tenant was reluctant to pay rent on enhanced rate as demanded by landlord but losing no time in sending same by money order after landlord refused to accept the same. Whereas in this case the tenant has not offered the rent to the landlord through postal money order even the appellants have admitted in the cross‑examination referred hereinabove that they did not remit the rent through money order even they did not issue notice to the landlord about the non‑acceptance of rent by them and thereafter without notice to the landlords they deposited the rent in Miscellaneous Rent Case. Under the circumstances in my humble opinion this authority is not helpful to the case of the appellants. (3) Usman Ghani v. Muhammad Rafiq (1989 CLC 1162), where his lordship Mamoon Kazi, J. (as he then was) found that rent was first tendered by the respondents by money orders and after the same has been refused by the appellant, the same was deposited in Court by the respondents. Whereas in this case it is nowhere the case of the. appellants that they remitted the rent through postal money order and on refusal of the landlords they deposited the rent in the Miscellaneous Rent Case. Whereas in the evidence recorded by the learned Rent Controller both the appellants have in unequivocable terms stated that after July, 1993 neither they offered rent to the respondents nor they have refused to accept the same. In this state of affairs of the evidence in my humble opinion with due respect to the authority it ' is not applicable to the facts of the present case. (4) Mashaikuddin v. Syed Ali Hyder (1989 MLD 539). In this authority a learned Judge of this Court has observed that basic and essential distinction between mere default and deliberate or wilful default should be borne in mind and totality and cumulative effect of all circumstances should be taken into account and not any particular feature of case in isolation. I am afraid this authority in any case is not helpful and applicable to the facts of the present case inasmuch as the appellants have admitted in the evidence before the Rent Controller that neither they remitted rent through money order to the respondents nor any notice was served on them to show that they have refused to accept the rent. The clear admission of the appellants before the Rent Controller that neither they remitted rent through money order nor they served am notice on the respondents /landlord show that they hay; not refused to accept the rent. I would like to discuss the case‑law cited by the learned counsel for the respondents. (1) Feroze Ahmad v. Mst. Zebra Khatoon (1992 CLC 735). In this case a learned Judge of this Court has held that once tenant has committed default by not paying or tendering rent within prescribed period, he would be liable to be ejected notwithstanding subsequent payment of arrears of rent. (2) Messrs Bamboat & Co. v. Messrs G.B. Construction Co. (1995 MLD 816), where Mukhtar Ahmad Junejo, J., as his lordship then was has observed that tenant could deposit rent of premises with Rent Controller in miscellaneous case only when landlord had refused or avoided to accept rent. Before depositing rent with Rent Controller of the area, tenant should have sent, the, rent to landlord by postal money order after tendering same personally to landlord. (3) Haji Kassam through Legal Heirs v. Syed Rahim Shah (1997 MLD 3240). In this case Mr. Ali Muhammad Baloch, a learned Judge of this Court has observed that tenant failed to prove by any evidence that landlord had refused to accept rent from him and he also had not examined postman to prove that landlord had not accepted money‑order sent by him to landlord as such default in payment of rent by tenant was proved. (4) Fazal Elahi v. Gul Khan Ahmed Qureshi (1997 SCMR 945). In this case their lordships of the Supreme Court has held that tenant after receiving notice under section 18, Sindh Rented Premises Ordinance, 1979, started paying rent .to landlord but then suddenly he shifted to depositing rent in Court in miscellaneous rent application in the name of landlord and previous landlady, thus, resorting to causing harassment to landlord and under the circumstances leave to appeal was refused. It would be advantageous to reproduce the provisions of section 10 of Sindh Rented Premises Ordinance, 1979: S.10.‑‑‑(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 tenth 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. In, the evidence recorded by the learned Rent Controller referred hereinabove, it is clear that they have not paid any amount of Pugri to late Muhammad Ali Abidi and it is also matter of record that after the death of Muhammad Ali Abidi, they started making of monthly rent to Kazim Raza Abidi one of the respondents who used to issue rent receipts on receipt of amount of the rent. It is also matter of record as per admission of the appellants in their evidence recorded by the learned Rent Controller, in cross‑examination both of them/appellants have admitted that after the payment of rent in the month of July, 1993 to Kazam Raza Abidi they have not sent any rent through money order to Kazam Raza Abidi. It is also admitted fact that they did not send any notice to Kazim Raza Abidi stating that he has refused to accept the rent and it is also an admitted fact that they did not send any notice to any of the respondents to the effect that they have started depositing rent in Court. It would be advantageous to refer the admission of the appellants in cross‑examination which is as follows: "It is correct to suggest that after July, 1993 neither I have offered rent to the applicants nor they have refused to accept. " It is also admitted fact that after the death of Muhammad Ali Abidi rent was paid to Kazam Raza Abidi one of the legal heirs of Muhammad Ali Abidi and suddenly, thereafter, without any notice or tendering rent through money order both the appellants started depositing rent in miscellaneous rent cases. The evidence on behalf of respondents was furnished by Kazim Raza Abidi who himself is respondent and also produced valid power of attorney on behalf of the other respondents. He was cross‑examined at length but nothing substantial was brought out in favour of the appellants. The case‑law cited by Mr. Khalid Javed, learned counsel for the respondents is relevant and helpful to the present matter which respectfully follow. The wilful default in payment of rent has, substantially, been proved through the mouth of the appellants themselves and the wilful defaulter in payment of rent is fully proved and appellants have rightly been held to be the wilful defaulters in payment of rent by the learned Rent Controller which does not call far any interference by this Court in these appeals. Resultantly, appeals are dismissed in limine. However, since appellants are carrying on business in the demised premises both of them are granted three months' time to vacate the demised premises/shops and hand over peaceful and vacant possession to the respondents. On 2‑12‑1997 after hearing the parties both the appeals were dismissed in limine by short order above are the reasons. A.A./S‑118/K Appeals dismissed.