MUHAMMAD ASIF KHAN vs Sheikh ISRAR

' HAMID ALI MIRZA, J.--- This appeal with leave of this Court dated 10-12-2001 is directed against the judgment, dated 15-1-2001 in F.R.A. No,180 of 2000, passed by the learned Single Judge of High Court of Sindh Karachi, whereby the said appeal was allowed and order, dated 24-12-1999 passed by the Rent Controller was set aside. Consequently, eviction application filed by the appellant/landlord was dismissed.

2. Brief facts of the case are that the appellant/landlord filed eviction application under section 15 of Sindh Rented Premises Ordinance, against respondent/tenant from rented Shop No,28, Plot No,ST-5, Block 14, Federal "B" Area Karachi on the ground of nonpayment of rent from October, 1992 to June, 1993 and sub-letting. The said eviction application of appellant Muhammad Asif Khan was allowed vide order, dated 24-12-1999 passed by Rent Controller/IInd Senior Civil Judge, Central Karachi. The respondent Shaikh Israr/tenant preferred F.R.A. No,180 of 2000 before the High Court of Sindh Karachi which was heard by the learned Single Judge and was allowed thereby order of ejectment passed against respondent/tenant was set aside and eviction application filed by appellant Muhammad Asif Khan was dismissed.

3. We have heard learned counsel for the parties and perused the record. The contentions of the learned counsel for the appellant are that the appellant/landlord has proved default in payment of rent against respondent/tenant as such the Rent Controller rightly held him defaulter in payment of rent. He also submitted that subletting stood proved on the basis of evidence brought on record before the Rent Controller as such the Rent Controller was right in holding that the respondent/tenant had sublet the premises. He submitted that the Single Judge of the High Court has erred in law and facts in reversing the ejectment order of Rent Controller without keeping in view the evidence on record and law.

4. We find substance and merit in the contentions of learned counsel for appellant/landlord while no force in the submissions of the learned counsel for the respondent.

5. On perusal of the evidence it would appear that the respondent/ tenant was in habit of sending rent through money order to the appellant/ landlord but all of sudden without any refusal on the part of appellant/ landlord the respondent/tenant from the month of October, 1992 started depositing rent in the office of Rent Controller. We inquired from the learned counsel for the respondent/tenant as to what was the cause not to continue to send rent through postal money order as per practice which prevailed prior to October, 1992, but he could not give satisfactory reply/justification. There is nothing on record to show that the appellant/ landlord ever refused to accept rent by tender so as to entitle or give any justification to the respondent/tenant to send monthly rent through money order or thereafter to change even said mode into deposit of rent in the office of Rent Controller. The deposit of rent in the office of Rent Controller in absence of having proved refusal on the part of the appellant/landlord would not authorize the respondent/tenant for the deposit of rent in the office of Rent Controller in terms of subsection (3) of section 10 of Sindh Rented Premises Ordinance, 1979. Consequently, such deposit cannot be considered to be a valid tender in the eye of law. Reference may be made to the decision of this Court Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCM R 1140 where this Court observed that, where a landlord refused to accept rent, it was mandatory for the tenant first to remit the rent through postal money order and if that was not done, deposit of rent in Court would not absolve the tenant from being a defaulter for the relevant period.

6. From perusal of the evidence on record it will appear that there is no evidence with regard to refusal of landlord to accept rent so as to provide authority or justification to the respondent/tenant to deposit rent in Court and there being no evidence to that effect the respondent/tenant cannot absolve himself from being defaulter for the relevant period. In this respect finding of the learned Single Judge that deposit of rent through postal money order or deposit of rent in Court was one and the same, hence could not be said to be a default on the part of the respondent/ tenant, cannot be sustained because it was mandatory for the respondent/ tenant to bring sufficient and reliable evidence on record that the appellant/landlord had refused to accept monthly rent so as to entitle him for deposit of rent in Court. Therefore, the said finding cannot be sustained in law. Reference may also be made to Abdul Malik v. Mrs. Qaiser Jehan 1995 SCM R 204 a decision of this Court where this Court observed that where conduct of tenant in making deposit of rent in Court was contumacious as such it amounted to harassment to the landlord/ landlady and the tenant cannot take cover under the plea that it was technical default and in such circumstances ejectment of the tenant was held to be valid. In the instant case conduct of respondent/ tenant in the first instance by sending rent through postal money order which though was being accepted by the appellant/landlord and thereafter without any refusal on the part of the appellant/ landlord, the respondent/tenant deposited rent in the office of Rent Controller which conduct would be termed to be a contumacious as it would operate as an act of harassm ent to the appellant/landlord, therefore, Rent Controller was justified in passing the order of ejectment against respondent/tenant.

7. Learned counsel for the respondent/tenant has placed reliance upon Inayat Ullah v. Zahoor-ud- Din 1987 SCM R 1313 in support of his submission. We find that facts of the said cited decision of this Court are quite different and distinguishable from the facts of the instant case considering that in the instant case the respondent/tenant failed to prove refusal on the part of appellant/landlord to accept rent from him, whereas in the said cited case, there was sufficient reliable evidence to prove that landlord deliberately created difficulties in the way of tenant by not accepting rent in the hope that some omission or slip on the- part of tenant may enable him to carve out a ground for their eviction.

8. Learned Single Judge has placed much reliance upon alleged letter dated 3-1-1992 having been sent by respondent/tenant, the contents whereof have been reproduced in the impugned judgment. Mere production of the photo copy of the above letter would not prove the contents of a document. Mere production of postal receipt would not prove that the said letter was sent to the appellant/landlord by the respondent/tenant considering that no reference of said letter was made by the respondent/tenant in the written statement and there was no acknowledgment of the said letter that it was received by the appellant/ landlord, therefore, the said letter (Exh.O/3) dated 3-11-1992 was not proved hence no reliance could be placed upon it considering that only a photostat copy of the same was produce without accounting for loss of original letter as provided by Qanun-e-Shahadat, 1984. In view of the aforesaid discussion and case-law we find that the finding of learned Single Judge on the point of default in payment of rent cannot be sustained in law and the same is reversed.

9. So far the second ground of subletting, the learned counsel for the appellant/landlord has not placed much reliance upon it, therefore, the same has not been attended.

10. In view of aforesaid finding on the point of default impugned judgment of the High Court is set aside and appeal is allowed. However, the respondent/tenant is granted six months' period to vacate the premises and hand over peaceful possession to the appellant subject to payment of usual rent and other charges failing which he shall be liable to be ejected without any prior notice.