1989 PLP 294 (CLC)

1985 C L C 1053 ref. Ali Ahmad Tariq for Appellant. Abdul Majeed Khan for Respondent. Date of hearing: 26th October, 1988. This appeal arises from the order of the VIIIth Senior Civil Judge/Rent Controller, Karachi (South) dated 7‑4‑1986 whereby he has allowed the ejectment application filed by the respondent and directed the appellant to hand over vacant possession of the premises Nos.25, 26 and 27 situated on 2nd Floor of Press Chambers, I.I. Chundrigar Road, Karachi (hereinafter called the demised premises ) of which the appellant is tenant at a monthly rent of Rs.400. The respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance ) on 3‑11‑1984 stating that the appellant had failed to pay the rent for the months of August, September and October, 1984 and hence he was liable to be evicted there-from. The appellant filed written statement admitting the relationship of landlord and tenant but stating that the rent of the demised premises was Rs.123.50 p.m. He further averred that the rent was tendered to the respondent and upon his refusal it was being deposited in Misc. Rent Case No.140/1985 and nothing was due from him. The application was filed with mala fide intention to harass the appellant for getting the rent enhanced. He also raised preliminary objections against the maintainability of one application in respect of three rooms and hence there was an improper payment of Court‑fee. Both the parties examined themselves in support of their respective claims. In his impugned order the learned Rent Controller overruled the preliminary objection with the observation that it was not pleaded in the written statement that there was separate tenancy in respect of each room. Moreover, the appellant had been admittedly paying the consolidated rent in respect of all the three rooms which was even borne out from the Money Order Exh .

6. He also held that the rent of the premises was Rs.400 p.m. as explained by the respondent in his affidavit and was also borne out from the remittance of rent through Money Order vide Exh.

6. The plea of mala fide was also repelled. Since no proof for tendering the rent or its payment was given by the appellant, the learned Rent Controller held that the default in payment of rent was established and consequently he allowed the application as stated above. Mr. Ali Ahmad Tariq, the learned counsel for .the appellant submitted that prior to the filing of the application the respondent had in fact admittedly served a notice far enhancement of rent on 23‑7‑1984. This fact he has admitted during his cross‑examination. He had in fact filed a Rent Case bearing No.2644/1984 for fixation of fair rent. The rent was actually tendered but he refused to accept the same saying that since he has filed the application for fixation of fair rent he would not accept the rent until that application is disposed of. Hence believing the respondent, the rent was not paid. According to the learned counsel, the appellant, who is innocent person has been trapped mala fidely by the appellant. The rent was being earlier remitted by Money Order. Lastly, the counsel made two‑fold contentions. Firstly, he stated that the rent for the month of August, 1984 was payable up, to 30th October, 1984 whereas it was in fact remitted on 7‑11‑1984 and hence there was a delay of only seven days which may, looking to the conduct of the respondent, be condoned. In support of his contention he placed reliance on a decision of this Court reported in 1985 C L C 1053. Secondly, the counsel emphasised that in fact there was no default in payment of rent for the month of August, 1984 inasmuch as the rent was admittedly remitted on 7‑11‑1984 and whereas the due date of its payment was 10th November, 1984. In this connection he submitted that by virtue of section 10(1) of the Ordinance the legislature has provided that rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than 10th of the next following the month for which it is due; whereas section 15 (2)(ii) of the Ordinance empowers the Rent Controller to order the eviction of the tenant if he is satisfied that the tenant has failed to pay rent within 60 days after the rent has become due for payment in cases where there is no mutual agreement between parties. The rent becomes due for payment in cases where there is no mutual agreement on the 10th of next following the month for which it is due. The rent having been tendered on 7‑11‑1984 by Money Order, that is, before 10th of November, the appellant had committed no default in payment of rent for the month of August, 1984. The rent for the subsequent two months had actually not fallen due on 3‑11‑1984 when the ejectment application was presented. Mr. Abdul Majeed Khan, learned counsel for the respondent, on the other hand, supported the impugned order. He repelled the contention of the learned counsel for the appellant as being untenable. In his submission, the due date for payment of rent for the month of August 1984 was 1st September, 1984 and hence the appellant was clearly in default on the date of presentation of the ejectment Application. The demand for enhancement of rent could not, at any rate, justify the non‑payment of agreed rent. I have given due consideration to the submissions made by the learned counsel for the parties. Taking up the last mentioned plea first that there was in fact no default as the rent for the month of August, 1984 was due for payment on tenth of November, 1984 it, may be noted that section 10(1) of the Ordinance does not make mention of the due date but it gives a concession to a tenant in given cases to pay rent at the best by the 10th of the following month for which the rent is due. If the legislature intended to put lay down that in cases where no date for payment of rent was fixed by mutual‑agreement between the landlord and tenant, the landlord shall not be entitled to make an application for eviction on the ground of default until 60 days from the 10th of the subsequent month had expired, then it could have so provided specifically. Three due date for payment of rent in the instant case is actually the 1st of next following the month for which the rent is payable and hence the time of 60 days will commence from that date and not from the 10th of the following month, as urged by the learned counsel. The last date for payment in such cases is 10th of the subsequent month. The last date of payment fixed by the statute cannot be read as due date for payment for the purposes of section 15(2)(ii) of the Ordinance. There can also be no denying of the fact that the rent for the month of August, 1984 was not even remitted by the tenant without any justification upto 7‑11‑1984 and hence he had committed default in payment thereof as rightly held by the learned Rent Controller. The only question that, therefore, now remains to be considered is whether it is a fit case wherein indulgence should be shown to the appellant and the order of eviction be not passed against him. There are in fact no circumstances existing in the instant case which could lead to an inference or to be taken into consideration for reaching the conclusion that appellant was prevented by sufficient cause to tender the rent of August, 1984 to the respondent as late as 9th November, 1984. In this view of the matter, I do not feel inclined to interfere with the impugned order. In the result, the appeal fails and is hereby dismissed with no order as to costs. H.B.T./B‑92/K Appeal dismissed.