1994 PLP 1139 (CLC)

7. 28‑4‑1988 April, 1988. 8. 28‑5‑1988 May, 1988. (JUNE, 1988 MISSING AS SUCH) 9. 31‑7‑1988 July, 1988 or June, 1988. 10. 31‑8‑1988 . August 1988. 11. 29‑9‑1988 September 1988. 12. 31‑10‑1988 October 1988. 13. 30‑11‑1988 November, 1988., 14. 30‑12‑1988 December, 1988." In the foregoing circumstances, the learned Controller has come to the conclusion that default for the months of May and June, 1988 was established and accordingly he ordered the eviction of the appellant tenant. There was also a preliminary question raised before the learned Controller as to the relationship of landlord and tenant, the appellant claiming that he was only one of the sons of his father, who was the original tenant, and that other brothers and sisters were not joined, they being necessary parties. As to this the learned Controller has concluded that because, as per statement of the landlady's husband, it was the appellant who was in effective occupation of the tenant‑hold and because he alone had despatched and' was paying rent the appellant could be exclusively treated as the tenant of the .premises. At this stage of the proceedings and while I had dealt with the matter thus far, Mr. A.Q. Malik has stated that "this is a very old dispute and that an opportunity should be provided to the appellant to show, in the context of the factual background, that in fact the appellant is not in default. In deference to the submission of Mr. A.Q. Malik I adjourn this case to 17‑10‑1993:" Pursuant to the foregoing, I have continued to hear the learned counsel. Two things, resultantly, are clear namely, that the respondent Iandlady, in spite of the availability of money order coupon dated 28‑5‑1988, claims not to have received rent in that month and secondly, no despatch of any money order was made in June, 1988. As to both of these, taken cumulatively, there was an implied admission on the tenant's part that he had allegedly,told the landlady's husband that he would pay two months rent later since his mother had died and further that, allegedly again, due payment was made during the (earlier) High Court proceedings each of which suggestions was, however, denied when put to landlady's husband in his cross‑examination, reproduced above. This would show that.default for the months of May and June, 1988 was admitted, as correctly found by the learned Controller. However, in terms of section 15 (2)(i) as read with section 10 of the Sindh Rented Premises Ordinance, 1979, there being no written agreement of tenancy and no time fixed for payment of monthly rent, the appellant tenant would be entitled to a grace of (60+ 10) 70 days in the context of payability of monthly rent. Thus the rent of May, 1988, which would have been due on A 1‑6‑1988, in view of the availability of grace period, could be paid by and inclusive of, speaking broadly, August 10, 1988 and likewise, in a similar manner, the rent for the month of June, 1988, would involve payability up to September 10, 1988. As recounted hereinabove, the factual position is that at least up to December 1988, the appellant‑tenant, in spite of obviously defaulting for the months of May and June, 1988, continued to despatch rents from month to month, though, at the same time, never writing off the deficit for May and June, 1988. It can, therefore, be urged profitably, which for the tenant Mr. A.Q. Malik did that, in law, no default whatsoever occurred because consistent month to month payments were made by the tenant in the months of July to December, 1988. The argument is correct and cannot be lightly rejected. However, Mr. Abdul Alim K. Talib, for the respondent‑landlady, has pointed out that such has been the position at best only up to 30‑12‑1988 whereas the rent case was filed on 24‑1‑1990 and in the event subsequent payments, till the date of the eviction application, are taken into account it may well be established that the apparent defaults for the months of May and June, 1988, did mature also as defaults in law. This contention of Mr. Abdul K. Talib is equally plausible but necessary material for such determination is not available. A Accordingly and by consent, the impugned order is set aside and the case is remanded back for re‑examination of this issue, upon such additional evidence as any of the parties may choose to lead before the learned Controller..At the same time, if there has been any other intervening default(s) on the part of the appellant‑tenant, Mr. Talib wants it to be specifically observed that the respondent landlady would be free to institute a fresh rent case for the purpose. Let this be done, if under law it can be so done. As to the dispute, whether it is the appellant alone, who upon the I demise of his father (previous tenant), succeeded to the tenancy, manifestly 13 none other has so far come forward to join the claim, only the appellant has paid or tendered rents and no one else, apart from the appellant, has been found to be in possession of the tenant‑hold. It is, therefore, difficult to entertain a contrary plea. The appellant alone is thus found to be the tenant. Appeal disposed of accordingly. Parties, by consent, would appear before the learned Controller on 4‑12‑1993, for which hearing no further notice need be issued to either of them. As regards the matters at Sr.Nos.1; 2 and 4, the stay application at Sr.No.4 has served its 'purpose and is disposed of as such, whereas CMAs. Nos.1100/93 and 1001/93, respectively, are applications for action because the appellant‑tenant failed to abide with an order to pay rents pending appeal and for summoning of the husband of the respondent‑landlady at the instance of the tenant. CMA 1100/93 is not relevant any longer because the order of payment of rents during the pendency of this appeal was condition of stay and if such had remained uncomplied with can only result in vacation of the order of stay, which stay with the disposal of the appeal in terms, has already served its purpose and likewise in view of the order of remand the summoning of the landlady's husband, on CMA 1001/93 has become immaterial. Order accordingly. ‑ AA./S‑1049/K Order accordingly.