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Second Appeal No. 219 o; 1975, decided on 9th September 1980.

Ss. 13(2')(1) & 13(6)‑Rent‑Payment‑Amount of rent deposited under order of Rent Controller in previous case under S. 13(6)‑Not a payment under cl. (i) of subsection (2) of S. 13.

Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 S C M R 26 ref. Syed Shin Gut v. Haji Abdul Hamid P L D 1968 Quetta 45 ref. Fazal Bhoy for Appellant.

Muhammad Ashraf for Respondent.

Date of hearing: 9th September 1980.

This is a second appeal against the order, dated 5‑7‑1975 of the IVth Additional District Judge, Karachi passed in Rent Appeal No. 318/73 reversing

the order dated 30‑7‑1973 of ejectment passed by the XIVth Civil Judge &, Rent Controller in Rent Case No. 392/1974.

2. The facts relevant for the purposes of this appeal, briefly stated, are that on 28‑2‑1964 the appellant filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, alleging that the respondent had committed default as he failed to pay the rent since 1‑6‑1961. The respondent pleaded no default in the written statement and stated that he had already deposited rent with the Nazir of the Court upto December 1963, in pursuance of an order passed under section 13 (6) by the Controller in previous application for ejectment No. 1247/62 filed by the appellant against the respondent. The respondent further pleaded that the application was premature inasmuch as the rent for the month of January 1964 was due against him and there being no agreement in writing he could‑pay the same 60 days after it was due. The learned Rent Controller after recording evidence adduced on behalf of the parties found default against the respondent and allowed the application for ejectment. The respondent went up in appeal and the appellate authority reversed the finding of the learned Rent Controller and set aside the said order. Against that order this appeal has been filed.

3. Mr. Fazal Elabi the learned counsel for the appellant contended that the amount of rent deposited in compliance of the order passed by the learned Rent Controller in the previous Rent Case No. 1247/62 under section 13 (6) of the Urban Restriction Ordinance, i959 was not a payment under clause (i) of subsection (2) of section 13 of the Ordinance. In support of his contention he relies on Hnji Fida Hussain v. Muhammad Ibrahim Khan (1972 S C M R 26). In this case the contention was that section 13(2)(1) of the said Ordinance provided for the determination of the question of default with reference to the date of the application for ejectment. As the petitioner had already deposaed the rents with the Rent Controller before the application for ejectment on the refusal of the landlord to accept them, there was no default. The contention was repelled and it was held "that the tender contemplated under the Explanation must be a tender within the time prescribed in clause (i) of the subsection".

4. In the present case the deposit was made in obedience to the order of the learned Rent Controller in an 'earlier rent case which was, however, dismissed for default and the question of default whether wilful or otherwise could not thus be decided. It was then open for the respondent to contend in these proceedings that the default as contemplated by clause (i) of sub section (2) of section 13 was not wilful but I find not a slightest reference to this aspect of the case in the evidence produced on his behalf in the Court of the learned Rent Controller.

5. The contention of Mr. Muhammad Ashraf learned counsel for the respondent is that the application was premature as the rent for the month of January, 1964 only was due against him on the date of filing of the applica tion for ejectment against him. He relied on an authority, Syed Shin Gul v. Haji Abdul Hamid (P L D 1968 Quetta 45). This authority undoubtedly supports his contention but the point relevant for consideration in this case is whether the rent for the period alleged in the application, i. e. from 1‑6‑1961 upto the filing of the application was tendered or paid in terms of clause (i) of subsection (2) of section 13 of the Ordinance. I find the authority reported in 1972 S C M R as referred to above, as applicable to the facts of the case on all fours and set aside the impugned judgment and maintain the order of the learned Rent Controller.

In result, the appeal is allowed with costs. The respondent is directed to vacate the premises within 2 months from the date of this order subject to payment of rent.

M. Y. M. Appeal allowed.