IN THE HIGH COURT OF SINDH AT KARACHI

C. P. No: S - 707 of 2004

Rajaldas Gianchand……………………………...…………………..Petitioner

Versus

Ist Additional District Judge,

Karachi, South and another………….……………….………….Respondents

Dates of Hearing: 21-11-2017

Date of Judgment: 21. 11.2017

Petitioner in Person

None present for respondent

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Through the instant petition, the Petitioner has assailed the order dated 01.10.2004, passed by the learned Additional District Judge-I, Karachi South whereby the findings of learned Rent Controller-VII, Karachi South was upset and the rent application filed by Respondent No. 2 was allowed.

2. The facts of the case are that Respondent No. 2 has filed Rent Case No.540/2000 before the learned Rent Controller-VII, Karachi South seeking eviction of the Petitioner on the ground of default. The learned Rent Controller after full-fledged trial of the said rent application, came to the conclusion that the Petitioner has not committed any default, as such the rent application was dismissed under Order dated 30-11-2002. The verdict of learned Rent Controller was challenged before the first appellate forum which was allowed through impugned order on the ground that the Petitioner could not establish his case of payment of rent regularly as he was unable to examine the postman concerned to verify that the money order was really tendered by him and the same was declined by the Respondent No. 2

3. The Respondent No. 1 is not in attendance since last so many dates of hearing and even notice was issued to her and her counsel but no one is in attendance. Record reveals that after service, the Respondent No. 2 remained in attendance through her advocate but later on neither the Respondent No. 2 nor her counsel bothered to attend the dates of hearing. In such a situation, there was no other alternate but to hear the party present before this Court and decide the matter as per record and hearing, as such arguments were heard and the record was perused.

4. The learned Rent Controller has passed a detailed and speaking order in which she had examined all the aspects of the rent application filed before her. I am of the view that the learned Rent Controller has left no room to disturb her finding in respect of alleged default. The learned Rent Controller has rightly held that the Petitioner was paying rent regularly without any breaks or delay and there was no default in payment of rent. It was the reason that learned Appellate Court did not touch the meritorious aspects of the order of the court of first instance. However, the learned Additional District Judge reversed the findings of the learned Rent Controller on technical grounds. According to the learned Additional District Judge, the findings of the learned Rent Controller are not sustainable on the ground that the Petitioner did not produce the postman in respect of tendering money through money order.

5. It is usually happened that the landlord/landlady tries to get vacated the rented premises by creating hurdles in the way of the tenant in tendering rent. The aim of creation of such hurdles is to knock out the tenant technically by establishing a default on his part. The legislature has taken care of this practice of the landlords by inserting a specific provision in the Sindh Rented Premises Ordinance, 1979. Whenever, a tenant faces such a situation where it becomes difficult for him to approach the landlord, he may adopt the alternate mode of tendering rent through money order or deposit the rent in court. If the landlord does not receive the rent tendered through money order, the tenant may deposit rent in court to avoid his eviction on the ground of default in payment of rent. It is not necessary to establish the refusal of landlord prior to tendering rent through money order. It is also not necessary to establish the refusal or accepting rent through money order by calling the postman as witness of such refusal. I am of the view that in this respect the statutory provision is quite clear. As the text of law is unambiguous; therefore, there is no need to travel beyond the same. There are two alternate procedures provided under Section 10 (3) of Sindh Rented Premises Ordinance, 1979 which is as under:

"(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated."

It is to be noted that under the above statutory provision, the conjunction 'Or' is used between the two modes of tendering rent. From the bare reading of the above provision of law, it is clear that if the rent is deposited in court without any delay and without tendering through money order; there will be no default on the part of tenant. In this respect reliance, may be placed on a case reported as Hirhibhai Behrana Dar-e-Meher through Attorney v. Messer Bombay Steel Works Partnership Firm, through Partner (2001 SCMR 1888), wherein it is held as:

“A cursory glance at the language in which the above subsection is couched will show that it is free from any ambiguity and no scholarly interpretation is called for. It simply means that where a landlord refuses or avoids to receive due rent the same can be tendered by means of money order or in the alternate it can be deposited with the learned Rent Controller in whose domain of jurisdiction the demised property is located. The tendering of rent by means of money order would be in two eventualities i.e. "refusal" or "avoidance" which are not synonymous or interchangeable terms and have been used to cover two different situations. The word "refusal" indicates categorical denial or renouncement in an unambiguous manner by the landlord while the word "avoid" with reference to the context reflects the conduct where the landlord instead of a categorical denial or refusal prefers to remain silent, shows reluctance to receive the rent and becomes unapproachable by keeping himself away to get the issue prolonged ‘to create the grounds of default’. In both the above referred two situations the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 can be invoked. The tendering of rent by means of money order can be proved by producing its receipts, which has been done by the respondent. The only embargo, which can be placed in this particular sphere, is that the money order must be sent on a given and correct address. It was never the case of the appellant that money order has been sent on incorrect address. A careful analysis of the provisions as contained in section 10(3) of the Sindh Rented Premises Ordinance, 1979 would reveal that it is not obligatory for the tenant to show and prove that how, when, why and under which circumstances the refusal was made by the landlord.”

6. If there is an endorsement of postman that the remittance is refused by the payee and the same is not challenged or rebutted, then there is no need to call the postman as witness by the tenant. The learned Rent Controller has already reached to a conclusion that there is no gap in the sequence of accepting rent and depositing the same in the court, in such a situation there is no need to call postman by the tenant at the time of evidence. What is more, the Respondent No. 2 has never questioned the factum of tendering rent, as during cross-examination of the petitioner, no question regarding this aspect was asked. If it is not disputed during trial, it cannot be raised at appellate stage. Besides, if the rent is tendered through money order on the correct address of the landlord/landlady, the proof of sending money order through producing receipt is sufficient to establish that the rent was actually tendered. In this respect reliance may be taken from the case of Fakhar Mahmood Gillani v. Abdul Ghafoor (1995 SCMR 96), in which the Apex Court has observed as:

"The rent remitted by money order to the landlord albeit on his correct address shall be deemed to be a valid tender and it has no nexus with the refusal of the landlord to accept the rent. The responsibility of the tenant is only that he remits the rent through money order and it is not expected of him to follow the postman to its destination"

The decisive conclusion of the above discussion is that the ground taken by the Appellate Court is contrary to law and the same is not sustainable. As such, the instant petition is allowed and the impugned judgement is set aside. Resultantly, the findings of the learned Rent Controller are restored. These are the reasons for the short order dated 21-11-2017.

Karachi

Dated 13.12.2017. J U D G E