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Second Appeal No. 281 of 1975, decided on 4th April 1977.

S. 13(2) read with Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30‑Eviction for default in payment of rent‑Mere pendency of dispute in Settlement Department between landlord and tenant‑Would not condone default by tenant in payment of rent.

Abdul Majid v. Saadullah P L D 1963 Quetta 17 ; Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530 distinguished.

Muhammad Hussain v. Amtul Batul 1970 S C M R 286 eel.

Abdul Fateh Memon for Appellant.

Qureshi M. Ramzan for Respondent.

Date of hearing : 4th April 1977.

The facts giving rise to this second appeal acre that the subject property was auctioned in favour of the respondent‑landlord on 5‑7‑1972 for Rs. 4,600 and a P. T. D. was issued in his favour on 22‑8‑1972. On 23‑8‑1972 the landlord addressed a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the occupant‑tenant, the appellant herein, in which notice he was also called upon to tender monthly rent at the rate fixed by the Local Authority regularly before the 5th of each month. The tenant in his reply dated 27th October, 1972 referred to the fact that he was in occupation of the flat in question since 1947 and that he had applied to the Settlement Authorities for its transfer in his favour and the flat was offered to h‑m for an amount of Rs. 17,640 whereas the same was auctioned in favour of the landlord, without any notice and in preference to claimant in possession, for a sum of its. 4,600 which was illegal and ab initio without jurisdiction. The reply also stated that the tenant had moved applications before the Settlement Authorities with a view to regularise his C. H. Form and the cancellation of the auction and accordingly, the landlord's demand was premature and if action is taken pending the decision of the higher authorities the same shall be met at the risk and cost of the landlord. This was followed by an eviction application by the landlord on 2‑10‑1973 on the ground among others of non‑payment of rent in spite of demand made. The eviction application was granted on this ground by the Rent Controller and has beer affirmed by the First Appellate Court. It may be noticed that during the pendency of the eviction application before the Rent Controller, the tenant, who bad in the meanwhile failed in his efforts to obtain transfer of the flat in his favour challenged the same in Constitutional Petition No. 1093 of 1973 is which an interim order was sought against further proceeding; before the Rent Controller which was refused by order dated 5‑7‑1974. This petition has since then been dismissed by judgment dated 12‑1‑1977.

2. Before the First Appellate Court the contention on behalf of the tenant was limited to the validity of notice under section 30 of Act XXVIII of 1958 but before this Court the only contention raised is that there was no wilful default on the part of the tenant in the non‑payment of rent by him to the landlord. The learned counsel referred to several decisions more particularly in the case of Abdul Majid v. Saadullah (P L D 1963 Quetta 17), Mst. Shah Jehan v. Mst. Mukti (P L D 1963 Kar. 777), Ghulam Mohammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530) in support of his contention as to the meaning of the word "wilful default". All these decisions were in relation to default under subsection (6) of section 13 of the Rent Ordinance while we are in this case concerned with non‑payment of rent under subsection (2) of section 13 of the Rent Ordinance. At its beat the learned counsel could say that there was a bona file dispute about the premises in question which resulted in non‑payment of rent and the discretion should, therefore, have been exercised in favour of the tenant by the Courts below. This appeared to be purport of his argument. However, there is more than one decision of the Supreme Court of Pakistan that a dispute such as in the present case between the landlord and the tenant will not condones the default by the tenant in A payment of the rent. In the case of Mohammad Hussain v. Amtul Batul (1970 S C M R 286) the Supreme Court was pleased to observe that the were fact that a dispute was going on between the parties in the Settlement Department is no ground to condone the default made by the petitioner.

3. In this view of the matter I find no merit in this appeal and it is dismissed. The appellant will have three months' time to vacate the premises.

S. A. H. Appeal dismissed.

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