1993 PLP 896 (CLC)

8. Admittedly the rate of rent of the disputed premises is Rs.300 P.M. According to the respondent the rate of rent is Rs.3W P.M. excluding conservancy, water, electricity and gas charges. The appellant has, however, disputed this position by stating that electricity consumption charges are paid by the tenants of the building, while rest of the above charges were paid by the respondent/landlady. Mrs. Tanveer Wahid Kazi (P.W.1) has, however, made the following admissions which support the plea taken by the appellant:‑‑ "It is fact that there is one meter of gas for whole building. It is correct opponent used to pay gas charges from the amount collected as rents. It is correct that there was common bill for gas dues to opponent. The opponent used to collect Rs.50 as gas charges from each tenant separate from rent and he never gave that amount to my mother. On the contrary he used to deduct the amount from rent as gas charges. Above facts I have not mentioned in my ejectment application as well as affidavit‑in‑evidence. In these three years I have not charged any gas payment but tenants are paying gas charges directly to the company. I have not authorised any body to collect gas charges and to pay to the company."

9. It is thus obvious that Mrs. Tanveer Wahid Kazi (P.W.1), who is daughter and attorney of the respondent has tried to magnify the case and to improve upon it to this limited question of quantum of rent.

10. Admittedly there is no agreement of tenancy in writing between the parties. In para 2 of the application for ejectment filed under section 15 of the Sindh Rented Premises Ordinance, 1979, the respondent has pleaded that the rent was payable in advance on first of each English calendar month. The appellant, although disputed this position in para 2 of his written statement, but admitted about this mutual agreement in his cross‑examination in the following words:‑ "It is fact that rent was payable in advance for each month."

11. Mrs. Tanveer Wahid Kazi (P.W.1), who is daughter and attorney of the respondent has testified about the defaults committed by the appellant in payment of rent with effect from 1‑4‑1985. She has, therefore, discharged the burden, which was then shifted to the appellant, who as his own witness (D.W.1) has produced the receipt (Exh.4/C), which reads as follows:‑‑ "Received Rs.1,600 from Mr. Joseph Dean for rent. Mrs. Kazi, 14th April, 1985." It is the case of the appellant that this receipt (Ex.4/C) was in respect of rent for the months of December, 1984 to April, 1985, with extra one hundred rupees towards part payment of rent of May, 1985. The appellant, however, took a somersault in his cross‑examination by stating as follows:‑ "I think I had paid the rents in April, 1985 as advance rents for the months of April, 1985 to August, 1985, i.e. 5 months rent amounts to Rs.1,5W."

12. Thus the appellant has taken inconsistent stands at different times. Admittedly there was exchange of legal notices prior to this litigation. The notice sent on behalf of respondent dated 26th June, 1985 (Exh.5/C) is on record. At page 2 of this notice the respondent had alleged default of payment of rent for April and May, 1985. The appellant replied to this notice vide (ExhA/3), in which he had not taken the spec plea of payment of Rs.1,600 towards rent and an advance of Rs.100. The receipt (Exh.4/C) does not show that this amount was paid by the appellant towards the rent of the disputed premises. The period for which the rent was paid is also not mentioned in it. In tact the receipt (Exh.4/C) is in the form of acknowledgment. Admittedly the appellant was also a rent collector of the respondent and the record shows that he had not fully accounted for the amount of rents collected by him from other tenants on behalf of the respondent. The explanation furnished by Mrs. Tanveer Wahid Kazi (P.W.1) that this amount was received by her towards the satisfaction of amount of rent collected by the appellant on behalf of the respondent, therefore, rings true. A cursory glance at this acknowledgement (Exh.4/C) is enough to show that it was an acknowledgement of an amount of Rs.1,600 collected by the appellant on behalf of the respondent and the appellant has tried to play fast by substituting this document towards the payment of his arrears of rent.

13. Section 15 (2)(ii) of the Sindh Rented Premises Ordinance, 1979, lays down that the Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied‑,‑ (ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment. Admittedly there was mutual agreement between the parties for the payment of monthly rent in advance. Therefore, it means that either the rent should be paid before the commencement of the month or before the expiry of the month, i.e. up to the last day of the month. So even if it is accepted for the sake of arguments that the appellant had tendered accumulated rent for five months vide (Fxh.4/C) on 14‑4‑1985, he was still a defaulter in payment of rent within the meaning of clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. It may be added that payment of rent after the defaults were committed will not have the effect of erasing the defaults already committed. Likewise the tender of rent by money order or deposit of rent in the office of the Rent Controller long after the due dates will not absolve the tenant from the consequence of defaults already committed.

14. It is not disputed by the appellant that he was collecting rent from other tenants of the building upto March, 1985, which he used to remit to respondent through her son. In such a situation the plea of practice of payment of accumulated rent by him is devoid of any force.

15. Thus, from whatever point of view the matter may be looked at, the appellant has got no case. The appeal is, therefore, dismissed with no order as to costs. The appellant is, however, allowed two months time to vacate the demised premises. H.B.T./J‑147/K Appeal dismissed.