1992 PLP 735 (CLC)

The material facts culminating into this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979 briefly are that the appellant is a tenant of respondent in respect of a garrage bearing No.2‑A, situated in Qasim Building, Ranchore Lines, Karachi, at a monthly rent of Rs.75. It was alleged that the respondent did not accept rent from June 1984 when tendered personally as well as through money order, hence the appellant started depositing rent in Misc. Rent Case No.3061 of 1984 from June 1984 and kept on depositing rent in the said case. It is, however, the case of the respondent that she had never refused to accept rent, and as such, the deposit of rent made in the office of the Rent Controller did not constitute a valid tender. The respondent who had made withdrawal of the arrears of rent on 25‑1‑1987 came to know that the appellant had defaulted in making deposit of the monthly rent due within time on the following occasions:‑ (i) The rent of June 1986 was deposited on 9‑9‑1986. (ii) The rent of July 1986 was deposited on 20‑10‑1986. (iii) The rent of August 1986 was deposited on 25‑11‑1986. (iv) The rent of September 1986 was deposited on 9‑12‑1986. (v) The rent of October 1986 was deposited on 5‑1‑1987. (vi) The rent of December 1986 was deposited on 2‑3‑1987. On 23‑4‑1987 the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking ejectment of the appellant on the ground of default in payment of rent within time on six occasions.

2. The appellant filed written statement and contended that in view of the provisions of section 10 of the Sindh Rented Premises Ordinance, 1979, out of six defaults four defaults were not made out, while so far as two defaults are concerned the respondent withdrew the entire rent including the rent of the period of two defaults on 25‑1‑1987, the same shall be deemed :to have been waived.

3. On the pleadings of the parties following issues were framed:‑ (i) Whether opponent is wilful defaulter in payment of rent? (ii) Whether application is not maintainable? (iii) What should the order be?

4. The respondent examined her attorney namely, Muhammad Ahmad (P.W.1), while the appellant examined himself (D.W.1).

5. On the assessment of evidence available on record the learned IInd Senior Civil Judge and Rent Controller (South) Karachi, decided both the issues against the appellant and consequently directed his ejectment from the demised premises within a period of 60 days. This order dated 26‑5‑1988 is the subject‑matter of this appeal.

6. I have heard Mr. Suleman Kassam, learned counsel for the appellant and Mr. Muhammad Salim Qureshi, learned counsel for the respondent. I have also gone through the record of this case carefully.

7. Explanation (ii) added to subsection (2) of section 13 of the Sindh Rent Restriction Ordinance, 1959 (since repealed), provided as follows:‑ "Rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the builing or rented land is situated shall. be deemed to have been duly tendered:"

8. From a bare reading of this explanation it is apparent that it was not qualified. Subsection (3) of section 10 of the Sindh Rented Premises Ordinance, 1979, made such payment more certain in the following terms:‑ "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." It is thus clear that the rent may be sent to the landlord by postal money order or be deposited with the Controller, where the landlord has refused or avoided to accept it and not otherwise. The appellant has made it clear in para. 3 of the written statement that he deposited the rent in the office of the Rent Controller after the money order sent to respondent was refused by her. Para. 2 of the affidavit‑in‑evidence filed by appellant is self‑explanatory and for the sake of convenience is reproduced below:‑ "That the applicant did not receive the rent when personally tendered and then tendered by money order, and as such, I started depositing rent in Court in Misc. Rent Case No.3061/1984 and I have been depositing rent in the said Misc. Rent Case."

9. The appellant, however, took a complete somersault when subjected to cross‑examination, wherein he admitted as under:‑ "Previously one Rent Application No.1982/79 was filed against me by applicant, which ended in compromise. It is a fact that thereafter I paid rent to Muhammad Ahmad, attorney of the applicant upto December 1983 under valid receipt issued to me. It is a fact that rent for the period from January 1984 to May 1984 was sent by me to the applicant by money orders. It is not a fact that I did not tender the rent for the months of June 1984 to September 1984 to the applicant. The witness clarifies that he tendered the rent to the applicant for this period personally, but she refused to receive the same. It is a fact that 1 did not send rent from June 1984 to September 1984 to applicant by money order."

10. From the above it seems to me as clear as daylight that the appellant had selected the mode of payment of rent at his own convenience. He started depositing the rent in the office of the Rent Controller without any justification obviously with a view to create problems for the respondent. There is, therefore, good deal of force in the contention raised on behalf of the respondent that such deposits do not constitute valid tender of rent.

11. Admittedly there is no written agreement regulating the tenancy. No date is fixed by the parties for the payment of rent. Subsection (1) of section 10 of the Sindh Rented Premises Ordinance, 1979, is, therefore, attracted in this case which provides as follows:‑ "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." It will be seen that in the absence of written agreement of tenancy the tenant would be deemed to have committed default if he failed to tender rent within sixty days after it became due, viz. tenth of the month next following the month for which it is due. Thus the appellant committed two defaults in payment of rent, one for the month of July 1986, which was deposited on 20‑10‑1986, and the other for the month of August 1986, which was deposited on 25‑11‑1986. The tender of rent, in whatever mode it may be, must be within the prescribed time, and once the default is established the tenant must suffer its consequences.

12. Mr. Suleman Kassam, learned counsel for the appellant finding himself on the horns of a dilemma, contended that the respondent who has admittedly withdrawn the amount so deposited by the appellant is deemed to have waived these two defaults. "Waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights." (See Law Terms and Phrases by Mokal). There is nothing on record to even faintly suggest that the respondent had knowingly relinquished her right to bring an ejectment case against the appellant. It is, therefore, wrong to suggest that the landlady had waived these two defaults. I think that the general proposition of law is well settled that once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of arrears of rent. The cases of Subhanali alias Sobho v. Mst. Satbai, reported in PLD 1964 Kar. 206, Amir Ali v. Mrs. Alima Ahmed, reported in PLD 1981 Kar. 150 and Malka Begum v. Mehr Ali Hashmi, reported in 1984 SCMR 755, are the nearest parallel to the present case.

13. For all the above reasons, I see no substance in this appeal which is accordingly dismissed with no costs. The appellant is, however, allowed two months' time to vacate the demised premises. H.B.T./F‑180/K Appeal dismissed.