1999 C﷓L C 551 (PLP)

The rent was not deposited in Court as required but such deposit was made... The underlined expression, 'as required', does show that the requirement regarding deposit of rent by virtue of explanation to section 17(2) or otherwise by virtue of the law declared by the Superior Courts from time to time, was in the mind of the learned Judge in the High Court when deciding the appeal. Therefore, there does not seem to be much force in this argument of the learned counsel. We, however, feel that if the change of address by the landlady was known to the respondent his insistence on sending money orders at the old address might reflect on the question of his bona fides. Similarly if the land lady failed to intimate the tenant about the change of her addresses intentionally to mislead or dodge him or otherwise by this omission on her part he remained unable to send money orders to her on the changed address and/or to adopt other methods for example, deposit with the Rent Controller this might reflect on the bona fides of the landlady. For further examination of the bona fides of both sides we deem it necessary to remand the case to the High Court as the discussion part of the impugned judgment is deficient on these aspects. Accordingly, these appeals are allowed and the case is remanded to the High Court for fresh decision of the appeals."

4. Now the crucial question is whether attempt made by the appellants to tender rent by money orders to the respondent is covered. by the Explanation to section 17(2)(1) of the Act XI of 1963. It would be relevant to reproduce section 17(2)(i) as well as Explanation as under:‑‑ "

17. Eviction of tenant.‑‑‑ (2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that‑‑‑ (i) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or Explanation‑‑‑ For the purpose of clause (i) the rent remitted by the money order to the landlord or in case landlord refused to accept the rent, deposited in the office of the Controller having jurisdiction in the area where the building is situate, shall be deemed to have been duly tendered. "

5. The ingredients of the above subsection when read with Explanation are as follows:‑‑ (i) That the Rent Controller may order ejectment if he is satisfied that the tenant has not paid or tendered the rent to the landlord when due. (ii) But in case tenant proves that the rent was remitted by money order to the landlord the presumption would be raised that it was duly tendered and also. (iii) Or in case the landlord refused to accept the rent and it is deposited in the office of the Controller having jurisdiction.

6. The crucial words in subsection 17(2)(i) are has not paid or tendered the rent to the landlord. In the context it would appear that the first part of subsection 2(i) implies that the rent has not been paid when the landlord was willing to receive. The second part of the subsection 2(i) would indicate that the tenant would escape the liability to be ejected if he on his part shows that he has tendered the rent to the landlord. It has been decided that the tender of rent can be proved by direct evidence of witnesses but if the means suggested in the Explanation are adopted a mandatory presumption would be raised about the tender of rent. See Muhammad Siddique v. Abdul Hameed PLD 1976 Kar. 696.

7. Learned counsel for the appellants vehemently urged that the appellants had been making all efforts to tender rent from November, 1984 to September, 1985 and for that period rent was remitted through money orders which were returned by the postal authorities as the respondent had shifted to some other place without intimating the appellant about her new address. Therefore, according to learned counsel repeated attempts to remit the rent through money orders clearly show that there was no wilful default on the part of the appellant. In support of his submissions, he relied upon Mrs. Almas Abdul Rehman Bhamani v. Begum Hamida Nizam PLD 1991 Kar. 315, Gulrez A. Shaikh v. Lt.‑Col. (Retd.) Qadir Saeed 1992 MLD 1632, Province of Punjab v. Abdul Hafeez 1992 ALD 514 and Younus Rizwani Shaikh and others v. Pakistan State Oil Co. Ltd. PLD 1988 Kar. 238.

8. Learned counsel for the respondent submitted that the question of mala fide and/or bona fides is not at all involved as according to him, once the money orders were returned it amounts to refusal and then in that situation, the appellant was bound to deposit the rent in the office of the Rent Controller in view of the Explanation to section 17(2)(i). In support of his submission he relied on Sint. Vidaya Bai and others v. Moorajmal 1980 SCMR 267, Muhammad Siddiq v. Abdul Hameed PLD 1976 Kar. 966, Din Muhammad v. Pirji Nisar Ahmad 1984 CLC Kar. 696, Messrs Shahzad Ice Factory and 2 others v. Judge Banking‑II; Lahore and another PLD 1982 Lah. 92, Mrs. Alima Ahmed v. Ameen Ali PLD 1984 SC 32 and Baboo Khan v. Maqbool Ahmed 1984 CLC Kar. 2599.

9. It is well‑settled legal principle that the tenant is bound to pay rent according to law. It is not the duty of the landlord to contact the tenant for payment of rent. Assuming that the respondent had shifted to some unknown place even then this will not absolve the appellant of his obligation to tender rent. I am of the view that since it amounted to refusal to accept rent, instead of remitting the same through money orders for nearly 10 months he could have conveniently deposited the rent in the office of the learned Rent Controller and that could have been taken to be a valid tender. In response to a question put by this Court as to why rent had riot been deposited with the Rent Controller when the appellant came to know that for November, December and January the money orders were being returned by the postal authorities, he submitted that such repeated attempts indicate bona fide of the appellant. There is no explanation available on record for not following the provisions contained in the Explanation as mentioned above. Therefore, in my humble view the willful default has been proved and repeated futile attempts made by the appellant to remit rent through money orders reflect adversely on his bona fides. Therefore, I see no reason to upset the following finding of the learned Rent Controller:‑‑ "Although both the parties have discussed the point of default at length in their pleadings. But an impartial analysis thereof reveals that the opponent has no case of his defence at all. Simple fact is that whatsoever the circumstances should have been the opponent would have deposited the rent in the Court. The refusal of the applicant to accept the rent through money orders or her deliberate failure to inform her new address to the applicant are not valid excuses, since in such circumstances the opponent should have resorted to deposit the rent in the Court. Still more significant aspect of the opponent's case is that he very well know the provisions of law, which is quite evident from his regular despatch of rent through money orders, but he negligently overlooked the other part of the similar provisions of the law which is regarding deposit of rent in the Court if the opponent was unable to tender the rent through money order. Mere despatch of rent through money order does not at all absolve the opponent from the consequences of default. I, therefore, feel no hesitation in holding that the opponent has committed clear default in the payment of rent. " The other ground for seeking eviction of the appellant was the personal bona fide requirement which was decided against the respondent and no appeal was preferred. Therefore, only the ground of default has been discussed. The upshot of the above discussion is that these two appeals having no merits are dismissed with costs. The appellant in both the appeals is directed to vacate the demised premises and hand over possession to the respondent within 60 days, but that would be subject to payment of rent according to law. H.B.T./H‑70/K???????????????????????????????????????????????????????????? Appeals dismissed.