1986 PLP 1527 (CLC)

2. On 7‑9‑1980 the respondent had filed an ejectment case against the appellant on the ground that he had failed to pay rent at Rs.120 per month for the month of May, 1980 onwards in spite of the instructions that he had given that the rent should be deposited in his bank account. The appellant resisted the said application and claimed that he had not received any instructions that the amount of rent should be deposited in Court and that the respondent was in the habit of collecting rent at intervals but he did not come to collect the rent and, therefore, the rent became in arrears but otherwise he paid rent of May to September, 1980 to the respondent when he came to collect the rent in October, 1980 and he passed receipt for the same.

3. The issue of default was framed. The respondent examined himself in Court and filed an extraordinarily long affidavit in which he gave details of the rent received by him from 1975 to 1980. He also stated that sometimes the appellant had deposited the rent in the bank account of the respondent whenever so directed. He stated that he had directed the appellant on 11‑5‑1980 to deposit the rent in his bank account as he was going out of Karachi for two months and that he had mentioned the same in the receipt of rent of April, 1980. He admitted in cross‑examination that no case for default had been filed by him earlier than this case. He said he came back to Karachi in August, 1980. He admitted that he did not obtain the signature of the appellant on counterfoil on receipt Exh. 1/6 and that he had delivered the said receipt to the appellant in the commercial bazar but it was not witnessed by any one. He denied that he had deliberately remained out of Karachi in order to create ground of default. He denied that he had misdirected the appellant in order to play foul with him. He filed a number of documents to show that he had given instructions for deposit of rent to three other tenants and they had deposited the rent for the relevant period in his bank account.

4. The appellant in his affidavit took up the position that the respondent should prove his ownership and title of the premises. This was a misconceived position inasmuch as the appellant had been paying rent to the respondent since 1980. The appellant stated that the rent was collected from him by the respondent in April, 1980 but he did not pass over the receipt for the month of April and thereafter he did not come up to 9‑10‑1980 on which date the respondent collected rent from May to September, 1980. He stated that the respondent had mala fide played trick with him and that if the respondent had informed him of his going of out of Karachi then he would not have failed to deposit the said rent. The appellant admitted in cross that he had deposited the rent in Habib Bank in account of the respondent in Tariq Road branch about 5 or 6 times on his directions. He, however, stated that the respondent was not traceable for the rent of May to September, 1980. He admitted that he did not remit rent by money order for this period nor deposited the same in Court and nor did he deposit the rent in the bank account. He stated that he did not enquire of the whereabouts of the applicant from other tenants and that it was not in his knowledge that the other tenants of the respondent were depositing rent in the bank account of the applicant.

5. The Rent Controller did not believe the defence and directed the ejectment.

6. Mr. Ghulam Mustafa Memon has argued that there has been no wilful default on the part of the appellant in deposit of rent and that the respondent had created a situation in which he made the appellant commit default in payment of rent. He submitted that the respondent when he had come to Karachi in August, 1980 could have contacted the appellant as usual and then rent would have been paid to him but he did not do so and, therefore, the non‑payment of rent was on account of the attitude of the respondent. It may be correct to say that the respondent had tried to take advantage of the non‑payment of rent by the appellant and that if the respondent had contacted the appellant in the month of August, 1980 then in all probability the rent would have been paid by the appellant. However, the payment of rent is the responsibility of the tenant and if the landlord does not come to collect the rent then the tenant has not discharged of his liability to make payment to the landlord. If the landlord is avoiding to collect the rent from the tenant then the tenant can avoid forfeiture of tenancy or risk of ejectment by either tendering the rent by money order or deposit the same in Court and in the present case the appellant had the other facility available to him that he should have deposited the rent in the bank account of the respondent but the appellant did not do anything of that sort and awaited for full four months for the respondent to show up. The rent of May, 1980 was due on 1‑6‑1980 and, therefore, it should have been paid within sixty days i.e. by 30th July, 1980 and similarly the rent of June, 1980 should have been paid before 29th August, 1980 and again the rent of July should have been paid before 29th September, 1980 but it was not done. If it had been a matter of one or two months then it could be argued by the appellant that he was merely inadvertent and his default should be condoned but it is a failure in the payment of three months rent. The appellant did not make any effort to trace the respondent in spite of the fact that the receipt of rent produced by the appellant shows even the telephone number of the respondent as well as his residence. Moreover, the appellant could have sent the rent by money order or could deposit in Court, but he failed to do the needful and, therefore, he has to face ejectment.

7. Moreover, even if the appellant had not been issued any instructions for deposit of rent in bank by the respondent, then at least he should have been reasonable to enquire from the other tenants as to what has happened with the landlord and as to why he had not come to collect the rent but he did not make any such enquiry. If he had made such enquiry he could have known that rent was being deposited in bank and, therefore, he could have himself deposited the same. It appears that he was merely content with the feeling that he will deposit the rent as and when the respondent comes to collect the same but the respondent was probably annoyed with the attitude of the appellant and he filed the ejectment case in September, 1980 after ascertaining from his bank that the rent has not been deposited. I am, therefore, convinced that there was no serious efforts made by the appellant in making his liability of rent in time.

8. I may mention here that the position taken by the appellant that rent was being collected at intervals has been completely disproved by the statement of the respondent who had shown that in a space of six years time he has collected rent regularly every month except twice when three months rent was collected. Therefore, the practice was of collection of monthly rent and not of collection of rent after intervals.

9. The appellant's counsel had stated that the appellant is a poor man and his family would be ruined if he was ejected. I have all the sympathy for the appellant but I have to act in accordance with the law. The learned counsel has not been able to show to me that I can use my discretion in respect of three months failure of payment of rent and condone the non‑payment. The words under section 15(2) are that the Controller "shall" make an order directing the tenant to put the landlord in possession of the premises if he is satisfied that the tenant has failed to pay rent in respect of the premises in his possession within such and such period. The words of the section appear to indicate that there is hardly any discretion left with the Rent Controller in directing possession on proof of failure to pay rent. The intention of legislature becomes more clear when one compares the wording of section 13(2) of West Pakistan Urban Rent Restriction Ordinance, 1959, where the word "may" had been used and as against that the present word used by the legislature is "shall". Since non‑payment of rent for three months has been proved, therefore, the appeal is hereby rejected. However, I accept the request of the appellant's counsel that he being a poor man and it would be difficult for him to secure alternate accommodation he should be allowed one year's time to vacate the premises. I must express my appreciation that the respondent as well as his counsel have agreed to the grant of such time to the appellant provided he continues to deposit the rent in Court. I, therefore, defer the ejectment of the appellant for 12 months provided he continues to deposit the rent regularly. Direct writ of possession without notice to the appellant will be issued after 12 months hereafter or even earlier in case he fails to deposit the rent. H . B . T . Appeal rejected.