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First Rent AppeAl No. 474 of 1980, decided on 2nd December, 1981,

‑‑ S. 13‑Default in payment of rent‑Mere technical default in payment of rent due to unavoidable circumstances, held, could be overlooked by Rent Controller in exercising his discretion.

Amir Ali v. MRs.Alima Ahmad P L D 1981 Kar. 150 ref.

‑‑‑ Ss. 13 & 15‑Ejectment‑Delay in payment of rent‑No effort made by appellant to prove tender of rent and refusal on part of respondent to accept same‑Verbal allegation with regard to demand of enhancement of rent not proved on record‑No explanation given for delay in payment of rent‑Appeal against ejectment is dismissed.

Mian Rehmat Ali v. Khadeja Hakim P L D 1967 Lah. 29 ; Sajjad Ali Khan and 1 others v. Peer Bux G. Mehar P L D 1972 Kar. 220 ; Noor Khan v. Abdullah P L D 1976 Kar. 862 ; Muhammad Siddik v. Seth Harehand Rai and another P L D 1976 Kar. 966 ; Sufi Muhammad Yasmin and Brothers, Karachi and another v. Dr. Major Abdul Ahad Khan and another P L D 1976 Kar. 1231 and Muhammad Alimullah v, Ziaul

Islam P L D 1973 Kar. 56 ref. _

Abdul Majeed Khan for Appellant.

Suleman Kassam for Respondent.

Date of hearing: 24th November, 1981.

This appeal is directed against the order dated 11th May, 1980 of the Third Rent Controller, Karachi in Rent Case No. 3697 of 1975 allowing application of respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and directing the appellant to hand over vacant possession of the premises in question to the respondent with in four months of the order.

The facts leading to the filing of the appeal briefly stated are as under ;‑‑

The appellant is a tenant of the respondent in respect of premises K‑7 B (A‑K‑VII=B‑21‑S‑12/1) situated in Daryabad Lyari Quarters, Karachi at a monthly rent of Rs.55. On 25th October, 1975 respondent filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 praying for ejectment of the appellant from the premises on the ground that he was a habitual defaulter and never paid rent regularly. t was the case of the respondent that the appellant had failed to pay rent since January, 1975. The appellant in his written statement filed on 17th October, 1978 raised the plea that it was wrong to say that he was a bad pay master as he used to pay the rent whenever respon dent came to collect the same. It was further his case that the respondent was insisting for increase in rent from Rs.55 per month to Rs.300 p. m. The appellant, therefore, refused to pay the exorbitant rent demanded and started depositing the rent due in Court in Miscellaneous Application No. 178 of 1976. The appellant in his written objections also raised the plea that on the premises which are an open plot with compound wall, with the permission of the respondent . he had constructed a room, a shed and other structures at his own personal cost of Rs.30,000 and thereafter had got sanctioned 15 H. P. Electric Power connection for running his business.

After hearing the parties, the learned Rent Controller in the impugned order allowed the application of the respondent and directed the appellant to hand over vacant possession of the premises to the respondent within four months of the date of his order, mainly on his finding that the appellant had committed default in payment of rent. The learned Rent Controlle rwas pleased to observe that except for the verbal allegation that the respondent demanded enhanced rent, the appellant had failed to prove the allegation. He further observed that there was no evidence to show that there was tender of rent by the appellant and that the respon dent had refused to receive the same from him. He further observed that the appellant had not sent rent through money order to respondent which he could have done even though the respondent had refused to accept the rent. The learned Rent Controller further observed that, although the appellant had deposited rent for 13 months in, Court it was for the first time deposited on 15th January, 1976, a long time after the filing of the application for ejectment.

I have heard Mr. Abdul Majid Khan, Advocate for the appellant and Mr. Suleman Kassam Advocate for the respondent. The main contentions on behalf of the appellant are as under :‑

(1) That there was practice of the parties of the respondent coming to collect the rent after 5‑7 months.

(2) That in view of the fact that on refusal of the respondent to accept rent at the agreed rate, the appellant had been depositing the same in Court since 15th January, 1976, there was no wilful default in the payment of rent.

With regard to contention No. I it may here be observed that the alleged practice of receiving rent of 5 to 7 months in lump sum has not been proved and except for the word of the appellant no other evidence has been adduced by him on the point.

With regard to the only other contention, it is settled law that mere technical default in the payment of rent which is due to unavoidable, circumstance could be overlooked by the Rent Controller in exercise of his discretion. Mr. Abdul Majeed Khan, the learned counsel for the appel lant, has referred to the decision of this Court in Amir Ali v. Mrs. Alima Ahmad (P L D 1981 Kar. 150) in which reliance was placed on the decision of the Supreme Court in the case of Ghulam Muhammad Lundkhor v. Safdar Ali (P L D 1967 S C 530) special ly on the observations which read as under : ‑

"The word default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non‑compliance. To establish default one must show that the non compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way responsible or which was beyond his control: It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless, the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order or direction."

In this Court's decision, already referred to, it was observed that in view of the fact that the Rent Controller has discretion in a case of non-payment under section 13 (2) of the Ordnance, the question which re quires consideration is as to whether in a particular case an Appellate Court could be justified in interfering with discretion exercised by him and further whether there were circumstances in the case warranting the exercise of discretion by the Controller.

Reverting the facts of the instant case, it is clear from the record the no effort was made to prove tender of rent and refusal on the part of the respondent to accept it. There is nothing on the record to support the verbal allegation with regard to demand of enhanced rent and, therefore, the refusal on the part of the respondent to accept rent. As observed by the learned Rent Controller, there is nothing on record to show that the rent was tendered by money order which is usual, on the refusal of the landlord to accept rent. A perusal of the record of the proceedings before the Rent Controller would show that, although application for eject ment on the ground of default was filed on 25th October 1975, the first de posit of rent in Court was made only on 15th January, 1976 that is, after the filing of the application for ejectment, there is no explanation for the B delay in depositing the rent specially when it is the case of the appellant that the respondent demanded enhanced rent and refused to accept the rent tendered to him. Mr. Abdul Majeed Khan for the appellant, ha relied on Mian Rehmat Ali v. Khadeja Hakim (P L D 1967 Lah. 29). a decision of the Lahore High Court and a decision of this Court in Sajjad Ali Khan and 2 others v. Peer Bux G. Mehar (P L D 1972 Kar. 220) on the point that the Controller has discretion to refuse ejectment of tenant if circumstances of the case justify doing so in the interest of justice. As an example of circumstances considered justifying the refusal of ejectment has been mentioned, the practice of the landlord habitually accepting arrears of rent periodically and in lump sum from the tenant in the instant case if, as already stated no such practice has been proved.

On the other hand Mr. Suleman Kassam, the learned counsel for the respondent, has referred to the decision of this Court in Noor Khan v, Abdullah (P L D 1976 Kar. 862) in which it was inter alia observed that the tenant was bound to tender rent for the period it was due and not having done so, could not claim that the discretion be exercised in his favour.

In I Muhammad Siddik v. Seth Harchand Rai and another (P L D 1976 Kar. 966), a decision of this Court it was held that tender of rent beyond the due date does not wash out default already committed. It was further held that when default was not shown as due to causes beyond control of tenant order of ejectment was proper.

In another decision of this Court Sufi Muhammad Yasmine and Brothers, Karachi and another v. Dr. Major Abdul Ahad Khan and another (P L D 1976 Kar. 1231) it was inter alia held that in a case of a tenant in arrears of 15 months seeking permission to deposit rent in Court, such deposit was of no avail, and does not exonerate default committed by him in terms of section 13 (2) (i). In a decision of this Court Muhammad Alimullah v. Ziaul Islam (P L D. 1973 Kar. 56) it was inter alia observed that the Ordinance imposes no obligation on landlord to find the tenant and collect rent from him and that the tenant under the law is required to pay rent to the landlord himself.

In view of the reasons given, there is no merit in this appeal which is accordingly dismissed with no order as to costs. The appellant is hereby ordered to give vacant possession to the premises to the respondent within two months o f this order.

X.M.A. ‑‑‑‑‑‑‑‑‑‑‑ Appeal dismissed.