NATIONAL BANK OF PAKISTAN Versus LSHTIAQUE

The appellant‑Bank is operating its branch at Umarkot Town in district Tharparkar in a rented building situated on Plot No. 20/1 belonging to the respondents. It is alleged that rent was not paid for the months of August and September, 1978, within due dates but it was sent later by means of cheques which were returned. No rent was paid also for subsequent period till ejectment case No. 5 of 1979 was filed before the Rent Controller, Umarkot, on 14‑7‑1979. The ejectment case was resisted but without success, order for ejectment of the appellant‑bank was passed on 23‑4‑1980. This appeal has been filed against the order of ejectment.

2. The impugned order is based on the alleged default in payment of rent for the months of August and September, 1978. The learned Controller held the view that the tenancy was created by way of an agreement in writing, which stipulated payment of monthly rent before the 5th day of the succeeding month and the tender of the rent for the months of August and September, 1978 by way of cheques during the last week , of October, 1978, did not amount to the payment of rent within due date and he made reference to the provisions of section 13(2)(ii) of the Sind Urban Rent Restriction Ordinance, 1959 which was operating when the alleged default was made.

3. The learned Advocate for the appellant has contended that the tenancy by written agreement ended on 31‑7‑1978 and it was not extended by mutual agreement but it was deemed to have been extended by operation of law and it had become a statutory tenancy and the rent was payable within sixty days after it had become due as provided in second part of clause (i) of subsection (2) of section 13 of the said Ordinance. He, therefore, advanced the argument that in view of the admission of the respondents landlords that two cheques in respect of rent for the months of August and September, 1978 were delivered to them in the month of October, 1978, amounted to payment of rent within sixty days of the rent having become due, as provided under section 13(2)(1) of the said Ordinance. To controvert this plea, the learned counsel for the respondents argued that payment by cheques was not legal tender of rent as envisaged in explanation (ii) to subsection (2) of section 13 of the Ordinance. It is the respondent's own case that two cheques covering the rent for the months of August and September, 1978, were actually delivered to them and they had returned them. It follows that the respondents had refused to accept the rent. It is not denied that the tenancy by agreement came to end on 31‑7‑1978. The occupation of premises by the appellant thereafter was to be governed by the statutory law then operating, namely ‑‑ The Sind Urban Rent Restriction Ordinance, 1959. This proposition of law stands propounded by the Supreme Court in a case Muhammad Yousuf v. Abdullah, reported in P L D 1980 S C 298. Under section 13(2)(1) of the Sind Urban Rent Restriction Ordinance, 1959, the statutory tenant was liable of committing default in payment of rent if the due rent was not paid or tendered within sixty days from .the day the rent became payable. In the instant case, the rent for the months of August and September, 1978 was admittedly offered to the landlords by way of cheques somewhere in the month of October, 1978. The rent for the month of August 1978 had become due in the month of September, and that for the month of September in the month of October: As such, the offer of payment of rent through cheques was made within sixty days from the period for which the rent for the months of August and September, 1978, had become due and no default was committed. Of course, the learned counsel fur the respondent advanced the argument that tender of rent contemplated under section 13(2)(1) of the said Ordinance could be effected only by remittance by money order or by deposit in the office of the Controller having jurisdiction as provided in clause 2 of explanation to clause 1 of subsection (2) of section 13 of the said Ordinance. But that provision does not exclude the payment of rent by way of cheque. It is undisputed fact that the cheques covering rent for the months of August and September, 1978, were actullay delivered to the respondents but they were n6t encashed by them and were returned for any reason. No doubt the landlords could refuse to accept payment of rent offered by cheques, unless it was agreed mode of payment, and insist upon payment thereof in cash. However, tender of rent by cheques within statutory period absolved the tenant bank of being wilful defaulters in payment of rent. The learned counsel for the respondents next contended that usual mode of payment of rent was by way of credit of the amount in the account of the respondents. But change in mode of payment was necessitated on account of expiry of the period of tenancy at the end of July, 1978 as per written agreement and the tenancy continued by operation of law and the rent had to be paid to the landlords in a manner as to make them conscious of it. As regards the rent for the period subsequent to the months of September and October, 1978, the learned Controller did not record his findings. It was brought in evidence that rent was sent for the subsequent period by means of pay orders. The learned counsel for the respondents contended that the pay orders were sent on an address other than the address of the respondents mentioned in the tenancy deed. But it was not contended that the address, the pay orders were directed to, was not their address. The rent was ultimately deposited with the Controller. It thus follows that there was no wilful default on the part of the appellants in payment of rent.

4. For the foregoing reasons, the appeal is allowed and the impugned order of the learned Controller is set aside. The parties are left to bear their own costs.

H. B. T. Appeal allowed.