1995SCMR492 (PLP)

AJMAL MIAN, J.‑‑‑This is a petition for leave to appeal against the c6ncurrent judgment of the two Courts below i.e. of the learned III‑Senior Civil Judge/Rent Controller (East), Karachi and the learned Single Judge of the High Court of Sindh, passed in Rent Case No. 54/85 and F.RA. No. 254/89 respectively, granting ejectment against the petitioner in respect of suit shop on the ground of default for the period from July 1984 to December 1984.

2. The brief facts ace that the petitioner had taken on rent suit shop on 1‑9‑1974 under a tenancy agreement. It is the case of the 'petitioner that the suit shop was purchased by the respondent in February 1982. It is their further case that after the above purchase, the respondent enhanced the rent from Rs.700 to Rs.800. It has been averred by the petitioner that the petitioner paid following rent through cheques to the respondent which were lump sum:‑‑ "Months Cheque No. Amount Cash on Feb.82‑Jan.83 064090 Rs.9,600 6‑1‑83 Dt.12‑12‑82 Feb.83‑June.83 247528 Rs.4,000 3‑7‑83 Dt.18‑6‑83 J.uly.83‑Sept.83 247550 Rs.2,400 4‑10‑83 Dt.2‑10‑83 Oct.83‑Dec.83 632306 Rs.2,400 9‑6‑84 Dt.4‑1‑84 Jan.84‑June 84 716735 Rs.5,400 28‑11‑84 Dt.2‑6‑84 July.84‑Dec.84 03466345 Rs.5,400 Not presented Dt.5‑1‑85

3. From the above particulars, it is evident that the respondent did not encash the last cheque for the period commencing from July 1984 to December 1984 apparently for the reason that she filed above rent case on 2‑1‑1985 for ejectment on the ground of default, as stated above. The above rent case was resisted by the petitioner in which it was, inter alia pleaded that the respondent resided in Sukkur and that the rent used to be collected at her convenience in lump sum. However the learned Rent Controller after framing issues, recording evidence, by the above judgment dated 14‑2‑1989 held that there was default as the rent for the defaulted period was sent after 6 months from the date of its issue and that the cheque bore 5‑1‑1984 as the date in place of 5‑1‑1985. Against the above judgment the petitioner filed above First Rent Appeal but the learned Judge in Chamber on the basis of the judgment of this Court in the case of Mrs. Alima Ahmed v. Amir Ali (PLD 1984 SC 32) did not accept the plea of practice of making payment of the accumulated rent in lump sum and, therefore, concurred with the finding of the learned Rent Controller, the petitioner has, therefore, filed the present petition for leave to appeal.

4. In support of the above petition, Mr. Ali Akbar, learned counsel for the petitioner has vehemently contended that during the tenancy between the petitioner and the respondent the petitioner had tendered rent all together six times through cheques which included accumulated arrears of rent as well as advance rent. It has been further submitted by him that five of the above cheques were encashed by the respondent without any protest whereas the 6th one was not presented. According to him the ratio in the cases of Muhammad Yunus Malik v. Mst. Zahida Irshad reported in 1980 SCMR 185, Taher Ali and others v. Messrs Sh. Miran Bux, Karam Bux and another (1989 SCMR 403) and Muhammad Rafique Chaudhry v. Abdul Hamid and others (1988 SCMR 1385), was applicable to the case in hand and not the ratio decidendi of the case of Mrs. Alima Ahmed (supra).

5. We are inclined to grant leave to consider whether the learned Rent Controller has rightly exercised discretion in favour of the respondent in granting the ejectment order in presence of the above documentary evidence and whether the ratio decidendi of the case of Mrs. Alima Ahmed (supra) has been rightly applied to or whether the above three judgments cited by the learned counsel for the petitioner were more aptly applicable to the instant case. Leave is accordingly granted. A.A./P‑241/S Leave granted.