1989 PLP 34 (CLC)

Mr. Ghulab M. Rang, learned counsel appearing for the respondents has contended that the appellant had failed to pay rent till it was deposited in Court on 11‑7‑1984, and therefore, the default was for the months of November, 1983 to June, 1984. He has further contended that default committed after filing of the application could also be taken into consideration. It was further contended that the practice of recovery of rent after intervals could not be claimed and it was the duty of the appellants /opponents to tender the rent as envisaged by law. In support of his contentions the learned counsel has relied upon:‑ (1) P L D 1978 SC 220; (2) 1986 C L C 555; 3 1986 C L C 735; (4) 1986 C L C 1527; ( 5 ) 1987 C L C 493 . I have considered the contentions of the learned counsel. s far as the question, regarding the rate of rent and the relationship of landlord and tenant were concerned, it was not disputed by the learned counsel for the appellants. It was the case of the respondents hat the appellants had failed to pay rent for three months i.e. for the months of November, 1983 to January, 1984. That the rent was deposited for the first time on 11‑7‑1984 and, therefore, the appellant was defaulter upto June 1984. This was not controverted by Mr. Noor Mohammad but his reply was that the appellant had moved an application for deposit of rent on 23rd April, 1984 and that since the ejectment was filed on 6‑2‑1984, subsequent default for payment of rent could not be taken into consideration. As far as the evidence led by the parties was concerned the respondent has examined Mohammad Ishaq, Rent Collector or who has stated that the appellants/ tenants had committed wilful default in respect of the payment of rent for the above months. That the tenant has been regular dafaulter in payment of rent even in the past. That he had approached the tenant for payment of rent but the same was not made. In cross examination, he has stated that opponent used to pay rent by themselves and he was not to collect the rent. He has denied a suggestion that opponents/ appellants had offered rent when he had gone to collect electricity charges, and that he had avoided to accept the rent on false pretext. He did not know whether prior to August, 1983, the man of the landlord /respondents used to collect the rent from the tenant. He has denied that the landlords used to collect the rent at their convenience. The evidence of Eijaz Mansoor Shaikh one of the owners of the respondents also show that their rent collector had approached the appellants for payment of rent for the months of November, December, 1983 and January, 1984 but they did not pay the same. In cross‑examination, he has admitted that he is co‑owner of the disputed premises and Managing Director of the company. Their rent collector was one Ishaq. He used to recover rent and electricity charges. He has further stated that he did not know if the rendered by the tenant to rent collector in the first week of February, 1984 when he went to collect electricity charges. There was no written agreement of tenancy with the tenant. He has denied a suggestion that the ejectment application was filed in order to get the possession and re‑let the premises on higher rent and pagri. On the other hand Salahuddin Hashmi, Manager of the appellant has stated in his affidavit that they had not committed default wilfully. That on 2‑2‑1984 and 6‑2‑1984, the landlords had sent their peon Sadiq for collecting electricity bills for the months of December, 1983 and January, 1984 but when they offered the rent for the months of November 1983 to January, 1984 he told them that he would collect the same later. He further told them that he had come to collect electricity charges and not the rent. That it was the practice of the landlords to collect the rent of several months in lump sum. That they never refused to pay the rent. He has also denied that Mohammad Ishaq used to collect the rent but according to him one Sadiq peon used to collect the rent. He has further stated that they had not committed any default nor refused to pay the rent. In cross‑examination he has deposed that Noor Bano was the sole proprietor of the business. Nargis Jamal daughter of Noor Bano was looking after the business after the death of Noor Bano. He is Sales Manager in the business and have been working since 1974. Shaikh Atta is the owner of shop in question. The rent was collected by Sadiq Peon of Tariq Motors. He used to collect the rent since 5/6 years and used to bring receipts on the next day. He did not know who used to issue rent receipts. He never met the present landlords of the premises. He has denied a suggestion that the rent was being paid by Noor Bano and after her death by Nargis Jamal at the place of landlord and that he never paid rent nor any person from Tariq Motors had come to collect the rent. Sadiq was still at Tariq Motors. They used to pay electricity charges according to reading of sub‑meter. He has admitted that the rents for the months of November, 1983 to April, 1984 was deposited in Court in lump sum in this case. Witness Mohammad examined by the appellant has deposed that he has business dealings with Pakistan Art Emporium/ Appellant and he. visits them 3/2 times in a day. He knows that Pakistan Art Emporium was the tenant of Palace Hotel Annexe for the last several years. He also knew Sadiq peon who used to come and collect the rent from the opponent. On 6‑2‑1984 he was at the shop of opponent when peon/rent collector of landlords came to collect the electricity charges. Salahuddin Manager offered the rents for the months of November 1983 to January, 1984 to him but he refused to accept the same and told him in his presence that he had not come to collect the rent of shop in question and he will come to collect it later but thereafter he did not turn up. In cross‑examination he has deposed that he was residing at Khokhra Par area of Karachi. He used to polish utencils. He has got his own shop in Church Street, Saddar, Karachi. There was no sign board on his shop. He did not know as to who was the owner oj' business in the demised premises. The rate of rent of the demised premises is Rs.1,040 per month. He did not know about the terms of payment in respect of electricity charges. There was no time fixed for his visits to the opponents. So also there was no time fixed for visit of Sadiq. He did not know the place of working of Sadiq. He did not know as to how much amount was collected by Sadiq on 6‑2‑1984. He earned about Rs.40 to 50 per day from the opponent. He was on friendly terms with Salahuddin since last ten years. He has denied a suggestion that Sadiq neither collected rent nor electric charges. From the evidence adduced by the parties, and admission made by Salahuddin, Manager of the appellant it is clear that the rent for the months of November, 1983 to April, 1984 was deposited in Court in lump sum. It is also an admitted position that the first deposit which was made towards the arrears of rents was made in the month of July, 1984. This shows that in spite of refusal of the rent collector of the landlords to accept the rent the amount was neither sent by money order nor it was deposited in Court as envisaged by subsection (3) of section 10 of the Sind Rented Premises Ordinance. As far as the decision in the case of Abco International Corporation of Pakistan v. Salim Hashim Raza 1984 C L C 2483 relied upon by the learned counsel was concerned, a Division Bench of this Court was pleased to exercise discretion as there was misreading of lease agreement regarding the liability of the tenant to pay three months rents in advance. In the second case of Dawood v. Abdul Ghani 1983 C L C 339, ejectment was sought on number of grounds but the landlord failed to substantiate any, except the default of rent for one month, and therefore, the discretion was exercised in favour of tenant by the High Court. On the other hand, the following cases were relied upon by the learned counsel for the respondents.

1. Abdul Has ool v. Mohammad Rafiq 1986 C L C 1527 wherein it was held by this Court that:‑ "However, the payment of rent is the responsibility of the tenant and if the landlord does not come to collect the rent then the tenant is not discharged of his liability to make payment to the landlord. If the landlord is avoiding to collect the rent from the tenant then the tenant can, avoid for fixture of tenancy or risk of ejectment by either tendering the rent by money order or deposit the same in Court."

2. Haji Mohammad Qasim v. Meharban Ali 1983 S C M R 1205 it was observed by their Lordships of Supreme Court that:‑ "The mere fact that the landlord accepts the rent from a tenant periodically does not mean that he does not desire or expect it to be paid in time, as required by Urban Rent Restriction Ordinance. Tenant guilty of habitual default, held, not entitled to claim exercise of discretion by Rent Controller in his favour."

3. Mst. Amina Begum and others v. Mehar Ghulam Dastgir P L D 1978 SC 220 in which it was observed by their Lordships of the Supreme Court that:‑ "Indeed in our considered opinion a discretion is vested in this behalf in the Court to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation and to do compelete justice between parties and mould relief according to altered circumstances in larger interest of justice." 4.Raj Mphammad and 11 others v. Haji Mohd. Zareen and others 1980 S C M .R 339, the petitioner had resisted ejectment on the ground that rye ejectment application was pre‑mature as it was filed before the expiry of three months statutory period allowed to the tenants by the Displaced Persons (Compensation and Rehabilitation) Act, 1958; however, the matter was decided against them before the Rent Controller as well as before the Appellate Court. They filed petition for leave before the Hon'ble Supreme Court wherein it was observed while relying upon the decision in the case of, Amina Begum and others that the learned counsel has not satisfied us that if the ejectment petition was withdrawn and re‑filed result on merits would have .been different, and the petition for leave was dismissed.

5. In the case of Basit Khan v. Messrs Pak Craft Emporium 1986 C L C 555 it was observed by this Court that:‑ "The default is alleged in the application from September; 1974, and this is fully established by the duplicate receipts produced by the appellant. In the written statement the respondent alleged that the rent was paid upto July, 1975, and in his examination‑in‑chief tenant Mohammad Habib also first stated that he had paid rent upto August, 1974 but again said that he has paid rent upto August, 1975. The money order coupon which was produced in the Court shows that money order was sent on 16‑9‑1975 and thereafter until passing of the tentative rent order in the case on 25‑2‑1976, there was no tender of rent by the respondent to the applicant. Therefore, even on the basis of allegations of respondent in their written statement as well as their evidence before the Rent Controller they had committed default from August 1975 onwards. Until the rent order was passed in the case."

6. In the case of Mohammad Ali Ahmad, through legal heirs v. Shaikh Abdul Hameed 1987 C L C 493, it was observed by this Court that:‑ "It was the duty of the tenant to tender rent to the landlord, and in the absence of any evidence on record to show that tenant had paid or tendered rent to landlord till passing of tentative order, default in payment of rent was proved." In the above case the decision in the case of Amina Begum and others was also relied upon and the appeal of the tenant was dismissed.

7. In the case of Syed Ashraf Ali v. Ali Mohammad 1986 C L C 735 it was observed by this Court that:‑ "However, the learned counsel for the appellant very vehemently contended that as the application for eviction was premature the learned Rent Controller should have dismissed the same. This argument is now of only academic nature, even if it is assumed that or the date, the application for eviction was filed, before expiry of 60 days. It is admitted that even after expiry of sixty days no rent was tendered by the tenant. On the contrary the position on the record is uncontroverted that from February, 1976, till the order was passed in the rent case in 1978, the tenant did not tender or pay rent to the landlord even once, and while relying upon Supreme Court cases of Mst. Amina Begum and Raj Mohammad; mentioned supra the order of the Rent Controller was upheld and appeal filed by the tenant was dismissed." From the above decisions relied upon by Mr. Gulab M. Rang, learned counsel appearing for the respondents it is clear that subsequent default till the rent was deposited in compliance with tentative order can also be taken into consideration while considered the question of default. Mr. Noor Mohammad, learned counsel appearing for the appellant was not able to point out any contrary decision. I B am, therefore, of the considered view that subsequent default which occurred even after filing of ejectment application, till the rent was deposited could be taken into consideration, while deciding the question of default. In the present case, as far as, arrears of rent regard in the months of November, December 1983 and January 1984 were concerned, it was denied by the rent collector of landlord, namely, Mohammad Ishaq that rent was offered to him and he refused to accept the same. There is no reliable evidence from the side of the appellant /tenant that peon Sadiq used to recover the rent, and when they had offered him the rent for three months the same was refused. When electricity charges were accepted, there was no reason for him to refuse to accept rent. Witness Farooq examined by the appellant appears to be interested and his evidence was unreliable. He was friend of Manager Salahuddin, and used to earn Rs.40 to Rs.50 per day from them. He does not know what was the rate of rent and what amount was paid to peon Sadiq. In addition thereto, the appellant had failed to deposit rent till there was order from the Court. In this connection Salahuddin Manager of the appellant has admitted in cross‑examination that they did not tender rent by way of money order to the landlord. That after refusal by Sadiq rent for November, 1983 to April 1984 was deposited alongwith future rent upto August 1984 in Misc. Rent Case. The written statement was filed by the appellant in Court on 25‑2‑1984 and it does not show that they had paid or deposited the rent from November, 1983. The affidavit‑in evidence filed by Salahuddin Hashmi Manager of the appellant on 3rd August, 1985, also does not show that the rent was. paid or deposited by them from November 1983 till the filing of the affidavit. Of course, in cross‑examination Salahuddin has stated that the rents for the months of November 1983 to April 1984 was deposited in Court in lump sum. No receipt of payment/deposit was produced in Court in order to show as to when the rent was paid. However, the file of the case shows that on 23‑4‑1984 the appellant moved an application before the Court that he may be allowed to deposit rent for November, 1983 to April 1984 amounting to Rs.3,600 this application was dismissed on 17‑5‑1984 on the ground that he should file a separate Misc. application if he wants to deposit rents. In any case, the learned counsel for the respondent has contended that the appellant had deposited the rent on 11‑7‑1984 in. the Court and this was not controverted to by the learned counsel for the appellant. From the above discussion it is clear that the appellants had failed to pay rent from November 1983 to June, 1984. As far as the decisions relied upon by the learned counsel appearing for the appellant were concerned, the discretion could be exercised in favour of the tenant C if the default was for ore or two months but in the present case, the default was from November, 1983 to June, 1984. Since there was no written agreement of tenancy nor the date for payment of rent was fixed the appellant could deposit the rent of each month after expiry of sixty days from the date it became due. In the presen case the rent for November, 1983 had to be paid on 1st of February, 1984 and rent for the month of December 1983 could be paid by 1st March, 1984. In this way the appellant was clearly defaulter at least for six months i.e. from November, 1983 to April, 1984. Therefore, I am afraid the discretion could not be exercised in favour of the appellant. I am, therefore, of the considered view that the learned Rent Controller was right in holding the appellant to be a defaulter and the order of ejectment passed by the learned Rent Controller does not call for interference. The appeal is, therefore, hereby dismissed. However, since the premises are commercial premises, I allow six months time to the appellant to hand over the vacant possession to the respondents, subject to the condition that future rent is deposited in Court regularly. A . A . /P‑76/ K Appeal dismissed.