Mst. YASMEEN KHAN vs ABDUL QADIR and anothers

' HAMID ALI MIRZA, J.--- These civil appeals with the leave of this Court are directed against the judgment, dated 1-3-2001 passed in R.F.A. No,174 and 175 of 1998 filed by the petitioner against the respondents whereby the learned Judge in chambers dismissed both the F.R.As. And maintained the order of Rent Controller.

2. The brief facts of the cases are that the appellant being landlady, filed two eviction 'applications against the respondents-tenants, in respect of shops Nos.2 and 3 on Plot No,13-D, Nursery Market, Karachi, on the ground of default in payment of rent from the month of January, 1991 to April, 1991 and that she needed the property for her personal need. The said eviction applications were contested by the respondents by filing written statements. After framing issues and filing of the affidavits in evidence by the parties, the learned Rent Controller dismissed the eviction applications answering both the issues in the negative and holding that no default was committed and the appellant landlady failed to prove her personal requirement in good faith. The landlady, appellant, preferred two F.R.As. Before the High Court of Sindh at Karachi which were also dismissed by a learned Judge in chambers as per the impugned judgments against which the landlady-appellant preferred petitions for leave to appeal wherein leave was granted by this Court to consider the contentions raised at the time of arguments while relying upon the case-law laid down by this Court reported as Jan Muhammad v. Ishaq 2001 SCM R 762 and Pakistan State Oil Co. Ltd. v.

Muhammad Naqi 2001 SCM R 1140, that direct deposit of rent in the office of Rent Controller without tendering the same to the landlady, would not absolve the respondent-tenant from the commission of default in the payment of rent and further if there was some technical lapse in filing the affidavit and if the deponent is examined in Court and cross-examined, such technical lapses would not make the evidence inadmissible and could be considered.

3. We have heard the learned counsel for the parties and perused the record. The contention of the learned counsel for the appellant is that rent for the month of January, 1991 to April, 1991 was not paid by the respondents-tenants and in view of section 15 read with section 10 of Sindh Rented Premises Ordinance, 1979, the rent for the month of January, 1991 became due on 10-4-1991 but the respondents deposited rent in the office of Rent Controller on 29-4-1991 without tendering the same to her by 10-4-1991 as such there was a deliberate and wilful default at least for the month of January, 1991. The learned counsel, however, has not pressed the ground of personal need.

4. The learned counsel for the respondents, on the other hand, has submitted that admittedly rent was deposited in the office of Rent Controller on 29-4-2001 towards rent from January, 1991 to April, 1991 though respondent has paid rent for the said period earlier to the appellant landlady but no receipt was issued by her therefore, rent for the same period was once again deposited by the respondents, hence there was no default in payment of rent. He has further submitted that at the most it could be technical default of 19 days only in the payment of rent for the month of January, 1991 which could be condoned by this Court in view of the law laid down by this Court in Mst.

Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389.

5. We find substance and merit in the contentions of the learned counsel for the appellant that there has been wilful and deliberate default on the part of respondents in payment of rent for the month of January, 1991 as the rent was deposited on 29-4-1991. Although in view of section 10 of Sindh Rented Premises Ordinance, 1979, a tenant is supposed to tender the rent to the landlord/landlady and in case her/she has avoided or refused then rent is to be sent through money order or deposited in the office of Rent Controller. There is nothing on record to support the case of respondents that they made any attempt to tender the rent to appellant-landlady in the first instance and when she refused to accept the rent or when rent receipt was reported to be issued, the respondents were compelled to deposit rent in the office of Rent Controller. In case rent receipt for the month of January, 1991 was not being issued by the landlady, then in the very month i,e, January, 1991, the respondents should have sent rent for the said month through money order but it was not sent which would show that rent was never tendered to the appellant and only after the receipt of notice from the appellant rent was deposited for four months. Besides above, respondents have admitted that prior to the said period, the appellant did issue rent receipts to them which would also corroborate the plea of appellant that monthly rent receipt was being issued by the appellant in favor of respondents. This would prove the fact that the rent was never tendered to the appellant for the said period and was deposited directly in the office of Rent Controller in the month of April, 1991. It may also be observed that the Rent Controller has misread the evidence on record and has not appreciated the law laid down by this Court in holding that the respondents did not commit any default in payment of rent for the period from January, 1991 to April, 1991 though it is an admitted position that rent was deposited on 29-4-1991. The learned Judge in chambers has not at all attended to the question of default in the impugned judgment.

From the perusal and examination of record, it appears that there has been deliberate and wilful default in payment of rent for at least for the month of January, 1991 on the part of respondents which could not be termed to be technical default as such no case has been made out for exercise of discretion in their favor.

6. In view of the above admitted position and evidence on record and the law laid down by this Court, default in payment of rent for the month of January, 1991 stood proved on the part of respondents. In the- circumstances, impugned judgments are set aside and appeals are allowed.

The respondents are directed to vacate the premises within six months subject to deposit of monthly rent in the office of Rent Controller. The respondents shall hand over vacant possession of the suit property to the appellant on expiry of six months period and in case of failure thereof, the Rent Controller would issue writ of possession against them without any further notice, if necessary with police aid.