2000 (PLP)

Learned Rent Controller framed following points for determination: (1) Whether opponent has committed willful default in payment of rent? (2) What should the order be? On the assessment of the evidence adduced by the parties rent application was dismissed. I have heard Mr. Imtiaz Ahmed Ansari for the appellant and Mr. Muhammad Younus on behalf of the respondent at length and have gone through the R & Ps and case‑law. Mr. lmitiaz Ahmad Ansari contended that learned Rent Controller has misconceived and has not appreciated the evidence properly while passing the impugned order. According to him learned Rent Controller has seriously referred to hold that appellant had refused to accept the money orders without having any cogent evidence from the side of the respondent. One appellant has stated on oath that respondent has neither tendered nor remitted the rent of Rs.520 from 1‑5‑1988 to 31‑8‑1988, the burden to prove the payment entirely shifts upon the shoulder of respondent/tenant. He further argued that the coupons of money order produced by respondent in evidence in the Rent Case do not show the remarks of refusal by the appellant nor bear his signature. Irrespective of the above, the same are devoid of any sort of endorsement by the postman and that of the address of appellant. According to the counsel the respondent in his cross‑examination has categorically admitted that he had seen the money order coupons which do not bear the endorsement of the postman. He has also specifically stated that the said two money order coupons also do not bear the address of appellant/landlord. Learned counsel further submitted that appellant on the contrary has deposed that the rent from May to July, 1988, was never sent to him by the respondent by way of money orders. He used to maintain the receipt book and counterfoil and last rent which he received was that of April 1988 only. It was lastly argued that the appellants case would be covered under section 15(2)(ii) of the Ordinance, whereby the rent was to be tendered within 60 days after the same became due. According to him respondent did not either pay the rent in cash or tendered through money order or deposited the same in the Court from 1st May, 1988 as such the stipulated period of 60 days has expired and has become defaulter. In support of his claim respondent neither examined postmaster, Quaidabad, Landhi, Post Office nor examined the concerned postman from Napier Quaters, Lyari. In support he relies upon the case‑law reported in 1989 CLC 583 and 1048 (b) and (a), 1997 MLD 3240, 1997 MLD 820, 833 and 1030, 1990 CLC 340, 1990 CLC. 1545, 1997 CLC 646 and 1997 CLC.

216. On the other hand the respondent's counsel vehemently controverted the above contentions and argued that respondent had in fact tendered the rent through money order dated 17‑7‑1988 for the sum of Rs. 390, the rent of three months viz 1‑5‑1988 to 31‑7‑1988 and Rs.780/‑ the rent due on 13‑9‑1988 and as such did not commit any default in the payment. According to him it was appellant who refused to accept the rent by way of money order and such proof in writing was produced by the respondent in the rent application and Certificate from Post Master of Quaidabad, Landhi, Post Office was filed to that effect. According to the counsel the order of the learned Rent Controller does not suffer from any illegality or infirmity and is well‑reasoned one. In support he referred to the case law reported in 1986 CLC 380, PLD 1996 Karachi 67, 1987 CLC 1799 and PLD 1993 Karachi

642. In the impugned order much stress has been placed on the said two coupons of the money orders referred above and the refusal to accept the same by appellant and also on the Certificate of Post Master, Quaidabad Post Office. In order to assess the above it is essential to discuss the evidence led by the parties in the light of case‑law. Admittedly respondent has not paid the rent in cash to the appellant in person or to any one on his behalf. Nothing has been said by him either in his written statement nor in his affidavit‑in‑evidence. With regards to the tender of rent be way of money orders I have seen the coupons produced by the respondent .in the rent case. The first coupon of Rs.390 showing the rent from 1‑5‑1988 to 31‑7‑1988 neither bears any endorsement of post‑master regarding refusal by appellant nor it does bear his signature. On the contrary, 'on the back side where there should have been signature of Post Master or that of appellant, the same have been signed by one Muhammad Yaqoob, the attorney of respondent. Irrespective of above, address of appellant has, also not been mentioned therein. Similar is the position so far another coupon of Rs.780 is concerned. Above all the certificates issued by Sub Post Master, Quaidabad, Landhi mentioned at the bottom of letters of Syed Inayat Ali, Advocate of the respondent also do not fulfill the requisite requirement According to the certificates the payments have been made to its remitter T. Ismail, the respondent. The name of payee who refused the payment has not been mentioned. The said certificates even do not show that they were sent to appellant on his address at Nappier Quarters and that concerned postman had brought the same to him and he refused to accept the same. No one from the Post Office, Quaidabad, Landhi or Post Office Nappier Quarters Lyari has been examined on oath by the respondent to the effect and in absence of above important piece of evidence the findings of the learned Rent Controller merit no consideration: Though there is no written agreement of tenancy yet the relationship of tenant and landlord is not disputed in this case. As per section 15(2) (ii) of the Ordinance a maximum period of sixty days is allowed for the payment of rent after the same has become due. In this case the rent for the month of May, 1988 became due on 1st June and if the above stipulated period is taken into consideration then tenant would be defaulter on or after 1st August, 1988. According to the respondent he had starting depositing rent in Rent Miscellaneous Case No. 1516 of 1988 from 30th October, 1988 onwards. Admittedly the same has been done after 1st August, 1988 and has, thus, become a clear defaulter. The case‑law referred by appellant counsel fully supports his contentions. This Court in the case of Habib Bank Limited v. Muhammad Raza (1997 MLD 833) and in the case of Haji Qasim v. Syed Rahim Shah (1997 MLD 3240), Muhammad Azahar Hassan v. Mst. Razia Sultana (1990 CLC 1546), Salim Ahmed Khan v. Mst. Jamila (1990 CLC 349), Mir Khan v. Ahmed (1989 CLC 853) and Salim v. Nisar Ahmed (1989 CLC 1048) have held that in cases where tenant has sent rent by money orders and landlord has denied to receive such money orders it was essential for the tenant to examine postman to show that the same were delivered to the landlord but he refused to accept the same. As per case of Abdul Matin v. Muhammad Hassan (1997 CLC 216), the initial burden of default would be on landlord. Once he denied the receipt of rent, onus of proof would shift to the tenant. The case‑law referred by respondent counsel is on different facts and circumstances than that of present case. In the case of Haji Wali Muhammad v. Yousuf Ali (1986 CLC 380), it has been discussed at para. 6 on page 383 that opponent tendered the rent to the appellant which he refused to receive on the .ground that opppon~ent had not supported the appellant in police‑ case relating to dispute of appellant with some other tenants. In the case of Shahid v. Fazal Ellahi (PLD 1986 Karachi 67) tenant has paid the rent within 60 days as there was no oral agreement between them. Whereas in this case stipulated period had expired on 1st August, 1988 and the rent was deposited in Rent Miscellaneous Case No. 1516 of 1988 on 30th October, 1988 as such it was a clear default in the payment of rent. The case of Usman v. Gulzar (1987 CLC 1753) is also on different facts and circumstances and has no bearing with the facts of case in hand. In the case of State Life Insurance of Pakistan v. Mst. Sadiqa, reported in PLD 1993 Karachi 642 a grace period of 10 days in addition to stipulated period of 60 days was allowed. Even if such period is allowed to the respondent, he yet becomes defaulter. In this citation three modes of payments have been discussed. By first mode a direct payment in cash is to be made and in its failure to do so the rent is to be remitted through money order and on its refusal the same is to be deposited in Court. In this case above procedure has not been followed and no reasons of whatsoever nature are shown for non‑payment of rent in cash. In view of the above said reasonings and case‑law appeal is allowed and findings of the learned Rent Controller are reversed and the respondent is directed to hand over vacant possession of the premises to the appellant within sixty days. Parties to bear their own costs. H.B.T./G‑95/K Appeal allowed.