1989 PLP 4545 (MLD)

The appellant is a tenant in respect of a portion of premises bearing No. 124-A Block-2, P.E.C.H.S. Karachi of which the respondent is the landlady. The agreement of tenancy dated 11-9-1968 was made between Abdul Majeed Qureshi and the appellant but after his death rent was paid directly to the respondent. The respondent filed ejectment case against the appellant on the ground that the appellant has defaulted in payment of rent. The appellant denied the claim but the learned Controller passed the order of ejectment. It is an admitted position that after the expiry of the rent agreement the appellant continued to be the tenant. The learned counsel for the appellant has contended that the rent was not payable in advance but on expiry of the month on the 15th of each succeeding month. The rent was paid regularly in this manner and several receipts have also been produced. Therefore, the date for payment of rent was fixed by arrangement between the parties. The respondent claims that the appellant defaulted an payment of rent in the following manner: (1) The rent for the month of June 1985 was paid by pay order dated 11-8-1985 which was encashed on 22-8-1985. (2) The rent for the month of July 1985 was paid by pay order dated 18 -9-1985 which was encashed on 2-10-1985. (3) The rent for the month of September, 1985 was paid by pay order dated 10-11-1985 which was encashed on 25-11-1985. (4) The rent for the month of November .1985 was paid through pay order dated 29-12-1985 which was encashed on 14-1-1986. According to Mr. Mumtaz Ahmad Shaikh in alt the months the rent was paid after the 15th of each month and even alter expiry of 15 days of grace period provided under law. The position which emerges from these admitted facts is that the rent was to be paid on the 15th of each succeeding month. The rent was paid through pay order not on 15th of succeeding month as contemplated by agreement between the parties but beyond that period. According to section 15(2)(ii) if the rent is not paid within 75 days after the expiry of the period fixed by mutual agreement between the tenant and landlord the tenant commits default. In the present case in three months the rent has not been paid within 15 days of the expiry of period mutually agreed between the parties. Mr. Raja Qureshi the learned counsel for the appellant has contended that as the pay order had been obtained by the appellant he was out of pocket and therefore the rent should be deemed to have been paid on the date when pay order was issued. The obtaining of pay order by the appellant and keeping it with him will not amount to payment to the respondent. Once pay order is delivered to the respondent, the date of delivery may be treated as date of payment subject to encashment. In the present case the payment has been made much after the due date. In any case without accepting the argument of the learned counsel for the appellant on his own showing first three pay orders were obtained by him after the date fixed for payment of rent. Therefore on the assumption of the learned counsel for the appellant, there is default in payment of rent. In cases where payment is made through pay order it is not the date of the pay order but the date when the pay order is delivered to the landlord which is relevant. Pay order is a legal tender and the date of delivery of the pay order to the landlord should be treated to be the date when the rent shall be deemed to have been paid to the landlord subject to the encashment of the pay order. In the present case the appellant had sent pay orders through post under covering letter but no date has been written on any of these letters. It is very amazing that the respondent being an employee of the bank holding responsible position could issue such letters which did not bear any date. I am not drawing any adverse inference from such letters but it shows that the date of despatch cannot be ascertained from these letters. Without entering into this controversy as observed earlier on appellants' own showing default has been committed by him. The learned counsel for the appellant contended that according to the rent agreement advance rent of Rs.250 and further a deposit of Rs.250 are lying with the respondent and if these amounts arc adjusted there will no default. This plea is an afterthought and it has neither been raised in the written statement nor in the affidavit of evidence. I therefore dismiss the appeal and allow the appellant to vacate and hand over vacant possession of the disputed premises to the respondent within a period of four months from today failing which writ of ejectment shall be issued without notice. M.Y.H./M-856/K Appeal dismissed.