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Second Appeal No. 302 of 1976, decided on 12th February, 1981.

‑‑‑‑ S. k3(2)‑Eviction‑Default in payment of rent found to have been technically committed only once in last I1 years of tenancy‑Default not being wilful, Rent Controller, held, acted well within his jurisdiction in exercising discretion vested in him in favour of tenant by refusing his ejectment.

Obaid‑ur‑Rehman for Appellant.

Respondent No. 2 in person.

Date of hearing: 12th February, 1981.

This second appeal by the tenant is directed against the judgment dated 17‑8‑1976 passed by the learned V Additional District judge, Karachi, where by he set aside the order dated 30‑8‑1975 passed by the learned Rent Control ler and directed ejectment of the appellant from the office premises No. 15/16, situated on first floor of the building on Plot No. N. P. 10/1, Ibrahim Cham bers, Gul Muhammad Street, Karachi.

The brief facts are that the respondents applied for eviction of the appellant from the aforesaid premises on the ground of default in pay ment of rent for the months of August, September and October, 1974 at the rate of Rs.105 per month. The appellant contested the appli cation and denied to have committed any default. His case in the written statement was that the respondents were troublesome landlords who were in the habit of harassing the tenants and that they had con verted both rooms on the first floor of the building into an office thereby causing inconvenience to ail the tenants of the floor for which the appellant had filed a Suit No. 4231 of 1974 in the Civil Court in February, 1974 which annoyed the respondents who thereupon stopped accepting rent. The appellant thereafter started sending rent to the respon dents for the months of March, April, May, June and July, which was accepted by them and thereafter sent rent for the months of August, September and October, 1974 through money order dated 4‑11‑1974 which was, however, refused by the respondents and as such the appellant had committed no default.

On the above pleadings of the parties, the learned Rent Controller framed the following issues on which both parties led their evidence :‑

(1) Whether the opponent has committed default in payment of rent

(2) What relief, if any, the applicants are entitled to

On Issue No. 1 the learned Rent Controller, gave a finding that the respondents had filed the eviction application, on 1‑11‑1974 prematurely as the rent for the month of October was yet not payable at the time of filing of the eviction application and that for the months of August and September also it was payable within 60 days thereof and, hence no default within the meaning of provisions of section 13 (2) (i) of the W. P. Urban Rent Restriction Ordinance, 1959, had been committed. On the second issue the learned Rent Controller gave a finding to the effect that even if technically the default had been committed for non payment of rent for the months of August and September 1974 the appellant was entitled to the discretion of being not ejected from the pre mises as he had been tenant for the last 10‑11 years and there was no allegation that he had committed any default previously or that any eviction application bad been previously filed against him and further that the eviction application had been filed against the appellant because of the latter having filed a suit against the respondents regarding con version of both rooms on the first floor. Having thus giving the finding as above, the learned Rent Controller dismissed the eviction application by his order dated 30‑8‑1975. Being aggrieved, the respondents went in appeal before the learned Additional District Judge who allowed the appeal, set aside the order of the Rent Controller and directed eviction of the appellant by his order dated 17‑8‑1976. The learned V Additional District Judge held that the appellant had committed default in payment of rent for the one month of August 1974 in that he had sent the rent for the said month on 4‑11‑1974 late by 4 days and that there being no explanations for the delay of these 4 days the appellant was not entitled to the discretion of not being ejected. Hence this second appeal by the appellant tenant.

The respondent No. 2 Karim Muhammad is present in person and filed an application by the respondents' Advocate seeking adjournment on the ground that the learned Advocate received the power from the res pondents only today. As this is an appeal of the year 1976 it is no ground for adjournment that the learned counsel has received vakalatnama today. It was for the respondents to have taken care to engage the counsel earlier and the case filed would show that even on the last date of hear ing, viz. 23‑12‑1980 the counsel for the. respondents had appeared and requested for adjournment on the ground that due to oversight he had omitted to notice the case in the daily list.

Mr. Obaid‑ur‑Rehman, learned counsel for the appellant, contended that even if the rent for the month of August, 1974 was paid late by four days and thus technically default was committed, the appellant was entitled to the discretion of not being ejected from the premises as he had been a tenant of the premises for the last 15‑16 years and this was the first default alleged against the appellant in respect of one month only and that it had further been established on record that the eviction application had been filed against the appellant mala fide as a sequel to the appellant filing the suit against the respondents ; and the learned Rent Controller having exercised the discretion in favour of the appellant by taking into consideration the aforesaid relevant circumstances, it was not open to the learned Additional District Judge to have interfered with the discretion exercised by the learned Rent Controller and ordered ejectment of the appellant.

The contention raised by the learned counsel for the appellant has considerable force. Admittedly, the eviction application was filed on 1‑11‑1974, alleging default in payment of rent for the months of August, September and October, 1974. There being no agreement of tenancy fixing time for payment of rent, monthly rent could be paid within 60 days of its becoming due. As such, no default had been committed in respect of the months of September and October, 1974. Thus default if any, could be said to have been technically committed. in respect of one month of August, 1974, in that, rent for this month was payable by 30th October, 1974, whereas it was sent late by four days on 4th of November, 1974. It is, however, not denied that the appellant had been tenant of the premises for the last 11 years before filing of the eviction application and this was the first and the only default alleged to have been committed by the appellant during this period in respect of one month only. It is also not disputed that after the appellant had sent rent to the respon dents for the month of February, 1974, the latter stopped accepting rent thereafter on account of which the appellant had to send rent to the respondents through money orders Exhs.02 to 05 for the months of March, April, May, June and July. That being so, even if techninally the default had been committed in payment of rent for the month on August, 1974, the above circumstances on record were in deed relevant for considering whether the default was not wilful and the learned Rent Controller having duly taken into consideration the above cir cumstances and found that the default was not wilful, he acted well within his jurisdiction in exercising the discretion vested in him in favour of the appellant by refusing his ejectment. The learned Additional District Judge was, therefore, not justified nor was it open to him in the circumstances of this case to have interfered with the discretion duly exercised by the learned Rent Controller on relevant and sound con siderations.

For the aforesaid reasons, this appeal is allowed, the order of the learned Additional District Judge is set aside and the order passed by the learned Rent Controller is restored and maintained. In the circumstances of the case, I make no order as to costs.

Appeal allowed.