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Civil 'Petition No. 92‑R of 1979, decided on 19th June, 1979.

(On appeal from the judgment and order dated 18‑2‑1979 of the Lahore High Court at Lahore in S. A. O. No. 431 of 1978).

----S. 13‑Ejectment‑Default in payment of rent‑Cash rent for five months admittedly not paid by petitioner‑tenant to landlord Petitioner's plea of his being entitled to adjustment of rent due for such period owing to his having paid certain amount to a mason for repairs and a bond of a certain amount not proved satisfactorily Rent remitted for subsequent period by money order‑Not a validly tendered rent without having cleared arrears due for preceding period Petitioner also failing to pay monthly rent within 60 days from month for which payable‑Tender of arrears of rent for several months‑Cannot condone default thus committed‑Mere fact of petitioner having at times paid rent after two, three or four months Could not absolve tenant of his liability at law‑Three Courts below having concurred in holding petitioner to be a defaulter such finding of fact unexceptionable and not open to interference.‑‑[Finding of fact].

M. Kowkab Iqbal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 19th June 1979.

.‑On the 14th of March 1977, the learned Rent Controller, Rawalpindi ordered the ejectment of the present petitioner from the house in dispute. His appeal against the order was dismissed by the learned District, Judge, Rawalpindi and be also failed in second appeal which was rejected in limine by a learned Judge of the Lahore High Court at Lahore on the 18th of February 1979. This is his petition for special leave to appeal from the order.

We have heard the learned counsel for the petitioner in this petition before us. The application for the ejectment of the present petitioner from the house was based on the two‑fold grounds that he had caused material damage to the property and was a defaulter in the payment of the rent amounting to Rs. 1,400 due from him since June 1973 at the rate of Rs. 50 per mensem.

The learned Rent Controller found against the petitioner in holding that he was a defaulter in the payment of the rent due to the respondents and ordered his ejectment on that ground alone. In appeal the learned District Judge agreed with the findings of the Rent Controller. His order on the point is more elaborate and exhaustive. He observed that it was a common ground between the parties that the petitioner did not pay any rent in cash to the respondent for the period from August 1974 in spite of the notice of demand in writing served on him. According to the petitioner be had made a payment of Rs. 160 to one Fazal Ilahi, a mason, as directed by respondent No. 2 for effecting repairs to the house in dispute and had also paid another sum of Rs. 100 to the landlord in the shape of bonds issued in her favour and in lieu thereof he was entitled to adjust Rs. 260 against arrear of the rent of the premises for the period from August 1974 to December, 1974 and for the remaining period from January 1975 to June 1975 he had duly remitted the rent due by money order which was refused by the landlord. But the learned District Judge was not satisfied with this plea raised in defence. He found that the petitioners uncorroborated solitary statement on the point was not sufficient to satisfactorily discharge the onus to prove the adjustment against the rent due for the period from August 1974 to December, 1974 on account of the repairs and in the shape of the bond. The Court therefore, concluded that the petitioner had neither paid nor tendered the rent due to the respondents for the period from August 1974 to December, 1974. The rent due for the period from January 1975 to June 1975 was admittedly tendered by money order in July 1975. He had failed to pay or tender the rent for this period in time within 60 days for the month from which the rent was payable and was consequently held to be defaulter for the second period as well. In this connection it conceded that this default at best was a technical only. The respondents used to receive rent from the petitioner off and on after 3/4 months in lump sum and not regularly as and when it fell due to them. As such, according to the learned counsel the petitioner was not liable for ejectment on this ground. But learned District Judge repelled this contention. In his opinion this payment of the rent in lump sum at times did not absolve the petitioner from his liability to pay or tender the rent regularly as it fell due in accordance with law and in this view of the matter the default in the payment of the rent by the petitioner was unexcusable and he was not entitled to the exercise of the discretion in his favour in ordering his ejectment. In consequence the learned District Judge upheld the finding of the Rent Controller on this issue and dismissed his appeal.

The order was upheld in second appeal rejected m limine by a learned Judge of the Lahore High Court at Lahore on the 18th of February 1979. He observed that the second appeal before him was concluded by the finding of fact that the petitioner had failed to pay or tender the rent for the period from July 1974) (should be August 19741 to December 1974. Later on he tendered the rent due from January 1975 to June 1975: But this did not absolve him of the liability for the default in respect of the rent due for the period from July 1974 to December 1974. The Court was not impressed by the argument advanced on behalf of the petitioner that a practice had developed under which the petitioner was required to pay rent in lump sum some time for two, three and at times for four months at a time. In the opinion of the Court the petitioner did not pay the rent to the respondent despite the notice of demand in writing served on him. It was the responsibility of the petitioner to have tendered the monthly rent as and when it fell due to his landlord and he could not take advantage of his own default.

We have heard the learned counsel for the petitioner at some length. Admittedly, no cash rent for the period from August 1974 to Decem ber 1974 was ever paid by the petitioner to his landlord. He failed to prove to the satisfaction of the Courts below that he was entitled to the adjustment of the rent due for this period in question towards the payment allegedly made to the mason for repairs to the house and in the shape of the bond of the value of Rs. 100. On this finding therefore, it follows that even up‑to‑date the rent for this period in question was neither tendered nor paid to the landlord and this default on his part was wilful and con tumacious. A fortiori the rent remitted for the subsequent period from January 1975 to June 1975 by money order in July 1975 did not amount to a valid tendered rent without having cleared the arrears due for the period from August 1974 to December 1974. Moreover, he had failed to pay or tender the monthly rent within 60 days from the month for which the rent was payable and for this reason the tender of the arrears in lump sum in July 1975 did not condone the default thus committed by him. The mere fact that at times the rent was paid by the petitioner after two, three and four months in lump sum did not absolve him of his liability in law. The three Courts have concurred in holding that the petitioner was a defaulter in the matter of payment of the rent due from him. This finding is unexceptionable. This petition has no force and is accordingly dismissed. However, in the interest of justice the petitioner is allowed three months' time to vacate the house in dispute subject to regular payment of the rent before the 15th of each calender month.

Petition dismissed.

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