1996 PLP 381 (CLC)

Mr. Muhammad Ahsan Shaikh, the learned counsel for the appellant submits that the appellant tendered rent at the rate of Rs.425 per month to the respondent who refused to accept the same and demanded rent at the rate of Rs.1,000 per month; and that, consequently, the appellant sent the rent by money order and, upon refusal of the respondent, to accept it, deposited the rent with the Rent Controller under an order passed by him in Misc. R.C. No.803/86. He submits, further that the respondent has earlier filed R.C. No.1599/88 for eviction of the appellant on the ground, inter alia, of non?payment of rent but did not press that ground in view of the fact that the rent had been deposited with the Rent Controller as mentioned above; and that, therefore, the issue of default is res judicata. With regard to water, conservancy and fire charges, Mr. Shaikh submits that the rent of Rs.425 per month was inclusive of such charges and that the appellant was, therefore, not liable to pay the same; but that, nevertheless, in order to keep good relations with the respondent, the appellant tendered the amount of such charges to the appellant and, on his refusal to accept the same, deposited it in Court. On the question of personal requirement, the only submission of Mr. Shaikh is that the appellant was not entitled to obtain possession of the premises for use of his limited company which is, in law, a separate legal entity. Mr. HA. Rehmani, the learned counsel for the respondent, points out that there is no plea in the written statement or the affidavit in evidence of the appellant that the rent was tendered by money order; and that although a money order coupon was stated to have been annexed to the affidavit, it was, in fact, not annexed. Mr. Shaikh concedes that that is so. It would be convenient, first, to dispose of the plea of the appellant that he was not liable to pay water, conservancy and fire charges but tendered payment thereof, and subsequently, deposited the same in Court in order to keep good relations with the respondent. The plea is not worthy of any credit for if the appellant considered that he was not liable to pay those charges, there really was no reason for him to tender payment thereof because, according to his case, the respondent wanted nothing less than Rs.1,000 per month for rent and the appellant refused to comply. It is, therefore, not clear how the appellant expected to maintain good relations with the respondent by, paying him the amount of those charges. The conclusion is, therefore, inescapable that the appellant was liable to pay water, fire and conservancy charges. The contention with regard to tender of Rs.425 per month and of water, fire and conservancy charges may now be examined. As to the rent of Rs.425 per month, the appellant stated, in his affidavit in evidence that he sent the rent for April, 1988, to the respondent who refused to accept it; and that he, the appellant, then approached the respondent personally and offered to pay the rent for April, 1988, but the respondent refused to accept it. this assertion has been denied by the respondent who has deposed that no tender was made by the appellant. There is, therefore, the word of the appellant against the word of the respondent. The evidence of the appellant on this point is no more than a bare assertion which is not supported by any evidence of the time, the place or the circumstances at or in which the tender was made and refused. The version of the appellant, therefore, cannot be believed. With regard to fire, water and conservancy charges, there is, again, a bare assertion that such charges were tendered. That assertion has been denied by the respondent and, in any case, not supported by any evidence as to the time, the place or the circumstances at or in which the tender was made. The appellant's version in this regard is, therefore, also not worthy of credit. It is, thus, clear that the appellant did not tender either the rent at Rs .425 per month or the fire, water and conservancy charges. That being so, it was not open to him to send the rent by money order or to deposit the same with the Rent Controller. It was, of course, not the case of the appellant that the rent of Rs.425 per month was sent by money order and his assertion that the amount of fire, water and conservancy charges was sent by money order was not proved because no money order coupon was produced. The question, therefore, is whether payment of rent into Court can be considered valid payment of rent. . Section 10 of the Sindh Rented Premises Ordinance, 1979, provides, by subsection (Z) thereof, that the rent shall, as far as may be, be paid to the landlord; and it is provided by subsection (3) of section 10 that where a landlord has refused to accept the rent, it may be sent to him by postal money order or be deposited with a Controller within whose jurisdiction the premises is situated. A tenant is, therefore, entitled to send the rent by money order or to deposit the same with a Controller only after the landlord refuses to accept it. In the present case, the appellant did not tender the rent to the respondent. There was, therefore, no question of refusal. It follows that the deposit A of rent with the Controller in a Miscellaneous Rent Case was not a valid payment of rent. Besides, the only amount deposited in Miscellaneous R.C. 803/86 was the amount of rent at Rs.425 per month, and the amount of fire, water and conservancy charges was deposited only in pursuance of the tentative order passed under section 16 of the Ordinance. It appears to me to be clear that such deposit, in pursuance of an order under section 16 is not the deposit contemplated by subsection (3) of section 10 of the Ordinance. ' Mr. Shaikh, however, insists that the amount of rent, at Rs.425 per month is being deposited in Miscellaneous Rent Case No. 803/86. That may or may not be so but, as stated above, such deposit is of no avail to the appellant and, in any case, no evidence of such deposit, as prescribed by subsection (4) of section 10 of the Ordinance was produced before' the Controller. Subsection (4) prescribes that receipt of the Controller for the rent deposited with him "shall be 'produced and accepted in proof of payment". Therefore, even if the appellant had tendered payment, of 4nt to the respondent and the respondent had refused to accept it and, consequently, the rent had been deposited, with the Controller, the appellant was obliged to produce receipts of the Controller. Admittedly, he did not do so. The submission that the question of default in payment of rent is res judicata in the circumstances mentioned above is without any substance because that question was neither heard nor decided by the Controller in R.C. No.1599/88. Mr. Shaikh then contends that the fact of the rent having been deposited in Misc. R.C. No. 803,/86 was admitted by the respondent and .it was, therefore, not open to him to contend that the rent had not been deposited. The argument is misconceived because even if the fact that the respondent did not press the allegation of default in R.C. No. 1599/88 can be construed as an admission on the part of the respondent, such admission can relate only to the. facts of that case; and the issue before the Controller there was default in payment of rent from April, 1988, till the filing of that case. It cannot relate to the alleged deposit after that time. In the circumstances, default on the part of the appellant, as alleged, was fully established. On the question of personal requirement, Mr. Shaikh submitted, firstly, that the respondent had other equally suitable premises available for his purpose and, secondly, that he was not entitled to obtain vacant possession for use of a limited company which is a distinct person in law. The argument is entirely misconceived because, as Mr. Shaikh concedes, it was up to the respondent to choose a place where he wishes to conduct his business and, secondly, because the "company" for which the respondent required the premises in question is in fact a sole proprietary concern of the appellant. Mr. Shaikh, however, relies on the statement of the respondent in cross‑examination. where he has accepted the suggestion that he had formed a "company". It is true that the suggestion so made was accepted by the respondent but it is clear that the word "company" has been loosely used and there is no evidence that the so‑called company was a company incorporated under the Companies Ordinance or under any other law and thus had distinct legal personality. That being so, there is no discrepancy in the finding that the respondent requires the premises for his personal use. In the circumstances, the appeal is dismissed. H.B.T./M‑2150/K??????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.