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Second Appeal No. 448 of 1969, decided on 7th May, 1976.

S. 13(2)(i)‑Default committed within meaning of Ordinance‑Could not be wiped off by subsequent deposit of rent‑Rent Controller, held, vested with discretion to condone default if same found not deliberate, depending on circumstances of each case.

Fida Hussain v. Muhammad Ibrahim Khan 1972 S C. M R 262 and Muhammad Alam v. Noor Muhammad 1973 S C M R 606 ref.

‑‑ S. 13 (2)(i)‑Default‑Appellant landlords themselves avoiding to receive rent from tenants respondents being interested in making out a ground for ejectment of respondents‑Lower Court, held, perfectly justified and right in holding respondents being not wilful defaulters.

Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11 and Fida Hussain v. Muhammad Ibrahim Khan 1972 SCMR262ref.

------Ss. 15(4) & 13(2)(i)‑Willful default not proved‑Discretion of Rent Controller to refuse ejectment ‑ Unexceptionable‑Authority below having exercised discretion vested in it by law, not appropriate for second appellate Court to interfere with same unless exercised arbitrarily or capriciously.

B. Siddiqui for Appellants.

'A. Hafiz Siddiqui for Respondent.

Dates of hearing: 21st and 22nd April, 1976.

This second appeal is directed against the judgment dated 1‑8‑1969 passed by the learned Additional District Judge, Karachi, whereby he set aside the order passed bye the learned Rent Controller and refused ejectment of the respondent.

2. On 3‑8‑1967, ‑appellant landlord filed the application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, seeking eviction of the respondent from the office premises No. 303‑C situated at Gordhandas Cloth Market, Karachi, on the grounds that the respondent had (1) committed default in payment of rent, (2) sublet the premises, and (3) converted the office premises into his residence. Respondent contested the application and denied each of the grounds. He pleaded that he had offered rent to the appellant but the latter refused to accept it where after he deposited the rent in Court thrice, on 16‑1‑1967, 13‑4‑1967 and 24‑2‑1968, so that no rent was outstanding against him at the time of filing of the application by the appellant and no default was, therefore, committed by him.

3. On the above pleadings the learned Rent Controller framed the following issues and both the parties led evidence:‑

(1) Whether the opponents have committed default in payment of rent

(2) Whether the opponents have transferred and/or sublet the premises in question without the consent of the applicants

(3) Whether the opponents have used the premises for a purpose other than for which it was let out

(4) Whether the application as framed is maintainable or not

(5) Whether the property in question is evacuee property, if so, whether statutory notice was served on the opponents

(6) What should be the final order

3. On the issues regarding subletting and conversion, learned Rent Controller gave a finding in favour of the respondent. However, on the issue regarding default, he held that although the respondent had twice deposited rent in Court before filing of the ejectment application, he yet committed default as the appellant had no knowledge of the deposit and secondly by the time be made the first deposit in Court, he was already in default for ten months which could not be wiped off by such subsequent deposit of rent in Court. He rejected the plea of the respondent that the appellant had avoided to accept rent and that he did not send the rent by money order and instead deposited in Court because the appellant landlord had refused to accept money orders by several other tenants. On the question whether or not the default was wilful he held that the default being for a period of ten months itself showed that it was wilful and ordered his ejectment.

5. Respondent tenant went in appeal before the learned Additional District Judge who disagreed with the findings of the learned Rent Controller and held that no default was committed as, the respondent had admittedly twice deposited all the rent due in Court before filing the ejectment application and such deposit being a valid tender of rent under the Ordinance, it was not obligatory on the respondent to send rent by money order. As to the default being wilful or not, he held that the appellant's conduct showed that they were avoiding to receive rent from the respondent tenant and it being an admitted position the respondent had twice deposited the rent due from him in Court before the filing of the ejectment application, he could not be said to be a wilful defaulter and placing reliance on the case reported as Syed Masood Hussain and others v. Muhammad Saeed Khan and others (P L D 1965 Lah. 11), unhesitatingly chose to exercise his discretion in favour of the respondent by refusing his ejectment. Hence this second appeal by the appellant landlord.

6. Mr. Shafique Ahmad, learned counsel for the appellant, contended that the default under the Ordinance had to be considered not with reference to the date of filing of the application for ejectment, but with regard to definition of default within the meaning of section 13 of the Ordinance, according to which if the tenant fails to pay rent within 15 days of the date fixed in the agreement or within 60 days in other cases, he commits default which cannot be wiped off by depositing the rent in Court subsequently and since in this case the respondent at the time of the first deposit was already in arrears for ten months, he committed default within the Ordinance which could not be erased by subsequent deposit of rent in Court. In support he placed reliance on 1972 S C M R 262 and 1973 S C M R 598 and 606.

7. Learned counsel next contended that default being for a period of ten months, itself showed that it was wilful so that the respondent was rightly ejected by the Rent Controller and the learned Additional District Judge was wrong in interfering with the order of the learned Rent Controller.

8. Mr. Hafiz Siddiqui, learned counsel for the respondent‑tenant, however, contended that since the respondent tenant had deposited all the rent due from him in Court much before the filing of the application for ejectment by the appellant landlord, no default was committed by the appellant. He next contended that, in any case, even if it was to be conceded that technically default had been committed, it was not willful inasmuch as the respondent had been offering rent to the landlord but the latter avoided to receive it with the result that the respondent tenant applied to the Court and twice deposited the rent up to date in Court before the filing of the ejectment application, and the learned Additional District Judge having further found as a fact, that the appellants were avoiding to accept rent from the respondent, he was perfectly justified in interfering with the order of the learned Rent Controller and in exercising the discretion vested in him by law in favour of the respondent tenant by refusing his ejectment which could not be interfered with in this second appeal.

9. The question for consideration is whether the respondent committed default and whether, it was willful to call for his ejectment. Indeed, the question of default has to be viewed in the light of section 13 of the Ordinance according to which tenant commits default if he had not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days from the period for which the rent is payable. It is an admitted position in this case, that the respondent was in arrears for ten months at the time be made first deposit in Court. It. cannot, therefore, be disputed that the respondent' committed default within the meaning of the Ordinance which could not be wiped off by the subsequent deposit of rent by the respondent, in vie, 0,, 1972 S C M R 262. Indeed learned counsel for the respondent himself bad to concede that technically default had been committed. The next question of no mean importance, that remains to be considered is whether the default committed by the respondent was wilful to call for ejectment of the respondent, for, it cannot be disputed that in spite of default having been committed, Rent Controller has been vested with the discretion to condone the default, if it is found not to be deliberate, depending on the circumstances of each case. If authority is needed for this, reference may be made to the following relevant observations made by the Supreme Court in the case reported as Muhammad Alam v. Noor Muhammad (1973 S C M R 606):

"The Rent Controller could, however, condone the delay........ ..and the Court might exercise discretion .against directing eviction of the tenant although, in law, default is proved on his part."

10. Admittedly, respondent twice deposited in Court Rs.275, on 16‑1‑1967 and Rs.136.62, on 13‑5‑1967 before the ejectment application was filed on 22‑7‑1967 and it is also not disputed that no arrears were outstanding against the respondent at the time of filing of the ejectment application. This only shows that he was too willing to pay rent, for why should he have, otherwise, taken the trouble of applying and depositing the rent in Court, unless he was driven to that necessity by the appellant avoiding to accept rent, and it has to be borne in mind that he had deposit all the rent due in Court not once but twice before the eviction application was filed against him. The assertion by the respondent that the appellant landlord himself avoided to receive rent was also not without basis as the learned Additional District Judge on appreciation of the material found, as B fact, that the appellant had avoided to receive rent from the respondent as they were interested in making out a ground for ejectment of the respon dent. In this view of the matter, learned Additional District Judge was perfectly justified and right in holding that the respondent was not a willful defaulter and in exercising the discretion vested in him by refusing ejectment of the respondent.

11. It is well settled, that if the authority below has exercised its discretion vested in it by law, it will not be appropriate for the second c appellate Court, to interfere with it, unless it is found that it has been exercised arbitrarily or capriciously, which is not the case here.

13. For the aforesaid reasons, I see no substance in this appeal which is' hereby dismissed. In the circumstances, I make no order as to costs.

M Y H. Petition dismissed.