1985 PLP 1542 (MLD)

Saleem Law Associates for Respondent. Date of hearing: 6th February, 1985. This appeal is directed against the order of ejectment of the appellant from a Premises No. 25/6-B-1, Liaquatabad, Karachi passed by learned XIIth Civil Judge/Rent Controller, Karachi in Rent Case No. 2581/75 on 6-3-1982. The respondent is the landlady of the said rented premises. The tenancy between the parties was established by way of oral agreement in the month of September, 1973. It is alleged that the appellant made default in payment of rent from July, 1974 to June, 1975. The respondent, therefore, filed ejectment Case No. 2581/75 on 1-8-1975. The respondent had earlier filed Distress Warrant Proceeding:: No. 66/75 in the Karachi Small Causes Court for recovery of rent for the period from July, 1974 to February, 1975 and succeeded. However, the rent for the period from March to June, 1975 allegedly remained outstanding. The respondent also raised the plea in the ejectment application that she bona fldely needed the rented premises for her own use and that of her children. The appellant resisted the application. The parties adduced evidence. The learned Controller held, by the impugned order, that the appellant had mare default in payment of rent; but did not accept the plea of the landlady/ respondent that she bona fidely needed the premises for her own occupation and that of her children and passed the order of ejectment on the ground of default in payment of rent. The appellant has preferred this appeal against the order of the ejectment. The respondent has not challenged the findings of the learned Controller against the issue of bona fide need .either by preferring appeal or by way of filing counter-objections in this appeal. The appellant has appeared in person. His Advocate has not appeared. He has contended that he has been subjected to victimization for no fault on his part. The respondent has been represented by Mr. M. Waqar Hussain Advocate. The learned counsel has verged that the appellant had made default in payment of rent from July, 1974 to June, 1975 and the ejectment case was filed on 1-8-1975. He has further urged that the appellant had also failed to pay the electric charges for the electricity consumed by him. According to him, the recovery of arrears of rent through the process of Distress Warrant Application did not absolve the appellant of the default in payment of rent and he has placed reliance on a case reported in 1982 C L C 2284. He has also made reference to an order of the Controller, dated 29-1-1976 for deposit of tentative rent. He has contended shat the appellant developed his case by introducing later a plea of deposit of advance money and he could not be permitted to raise such plea. He has placed reliance in this respect on the cases reported in 1984 C L C 3483; 1982 C L C 683 and 1980 C L C

698. As mentioned above, the order of ejectment against the appellant has been passed only on the ground that he made default in payment of rent. The ,respondent's case has been that the rented premises was let out to the appellant at the rate of Rs.65 per month exclusive of electricity charges for actual consumption of electricity and that the rent was not paid from July, 1974 onwards. On the other hand, the appellant's plea has been that the rent of the premises was settled at Rs.50 per month and that he had been making payment thereof and there was dispute over the quantum of the rate of rent and he remitted rent to the respondent but she did not accept it and he, therefore, started depositing rent with the Controller at the agreed rate of Rs.50 per month. The learned Controller held that the rent was Rs.65 per month and the tender of rent by the appellant at the rate of Rs.50 per month did not save him from ejectment as the deposit made by him fell short of the rent payable by him. He does not seem to have examined the case in its correct perspective. The relationship of tenant and landlord between the parties was established somewhere in the year 1973. Dispute between them over payment, of rent developed from July, 1974. The respondent /landlord filed Distress Warrant Proceedings No. 66/75 in Karachi Small Causes Court, probably in the month of March, 1975 for recovery of rent of Rs.520 for the period from July, 1974 to February, 1975, which was at the rate of Rs.65 per month. The question of rate of rent was decided on special oath before the learned Judge, Small Causes Court, Karachi, on 10-7-1975. It was mentioned in that order, dated 10-7-1975 that Rs.300 had already been deposited before the Rent Controller in Miscellaneous Application No. 761 of 1975 and the balance of Rs.220 was to be paid in three equal instalments beginning from before 10-8-1975. The instalments were paid. As such, there wa:, hardly any wilful default in payment of rent for the period from July. 1974 to February, 1975. Even if there was any default, the appellant has produced in evidence money order coupons of remittance of rent for the month of September and October, 1974 and February 1975 .at the rate of Rs.50 per month. It is mentioned in the money order coupon where under rent for the month of February, 1975 was remitted that the rent had been remitted upto January, 1975. The money under remittances amounted to valid tender of rent since the money orders remittances were not accepted, the rent was deposited with the Controller. There was dispute between, the parties over the rate of the rent till the question was decided on special oath before the Judge, Small Causes Court, Kara,--hi on 10-7-1975. In the circumstances, the tender of rent by money orders at the rate of Rs.50 per month was valid tender of rent. Of course, filing of Distress Warrant proceedings for recovery of rent did not automatically amount to waiver of rent by the landlord as held in the case Shamim Ahmed Chaudhery v Musharaf Ali Khan reported in 1982 C L C 2284. But it has been discussed above that the appellant had made reasonable efforts for making payment of rent but it was not accepted and there was no wilful default on his part. Moreover, the ejectment application was filed on the basis of alleged non-payment of rent from March, 1975 to June, 1975. As regards the rent for. the period from March, 1975 to June 1975, the appellant had made deposit before the Controller at the rate of Rs.50 per month. This fact was reflected in the order of the learned Controller, dated 29-1-1976 regarding the deposit of tentative rent. Of course, the deposit was made at the rate of Rs.50 per month but the question of determination of rent was set at rest on the basis of special oath taken on 10-7-1975. Until then, the deposit of rent at the rate of Rs.50 per month be deemed to be valid tender of rent. Accordingly, there was no default in payment of rent. For the reasons recorded above the appeal is allowed and impugned order of the learned Controller is set aside. The parties are left to bear their own costs. H.B.T. Appeal allowed.