Find a Lawyer

-- S. 13 (2)-Ejectment-Default-Tenant not giving -satisfactory Vs account of delay in depositing rent-Default, held, committed.

Abdul Majid v. Saadullah P L D 1963 Quetta 16 and Abdui Majid v. Hafiz Abdullah P L D 1969 Kar.. 82 ref

--S.13-Ejectment -Default -Striking off defence;.- Landlord old man of 80 years submitting application for striking off defence of tenant within three months of default, held, not waived his right against tenant which resulted from default committed by him.

P L D 1965 Lab. I I ref.

Muhammad Shafi v.. Allah Dino P L D 1966 Kar. 523 -rot.

Abdul Fateh Memon for Appellant.

Faizanul Haq for Respondent. Date of hearing : 23rd October, 1972.

This is a second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, from the appellate judgment of the Additional District Judge, Larkana, upholding the order of the Rent Controller, Larkana in rent application No. 23 of 1968, striking off the defence of the appellants.

2. The circumstances which have led the filing of this second appeal are as follows

The appellants are the tenants of a shop bearing No. C. S. 288, Ward 'A'. Larkana, and the respondent is the landlord of the said shop. On 14th December, 1968, the respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, before the Rent Controller, Larkana, for the ejectment of the appellants on the ground of non-payment of rent. The Rent Controller, vide his order dated 8th March, 1968, fixed the rent of the premises at Rs. 25.00 per month and directed that the arrears of rent be deposited by 5th April, 1968 and future rent be deposited before 15th of every month. The appellants deposited the arrears of rent before the due date but did not pay the rent for the months of May and June, 1968, in time. On 22nd July, 1968, appellant Abdul Majeed filed an application before the Rent Controller stating that as he was ill, be bad not been able to pay the rent of the premises for the months of May and June, 1968, in time and he may be allowed to deposit the amount of Rs. 50.00 in Court. On that application the Rent Controller ordered that he may be allowed to deposit rent at his own risk. On the following day, appellant Abdul Majeed deposited the amount of Rs. 50.00, in Court.

3. On 5th October, 1968, the respondent/landlord filed an application before the Rent Controller that the appellants having made default in payment of rent for the months of May and June, 1968, their defence may be struck off. Appellant Abdul Majeed thereupon filed an affidavit on 2nd November, 1968 to the effect that the default in making payment of rent was not wilful but was due. to the fact that he had been suffering from Asthama and also from occasional severe illness on account of which he had been confined to bed for several days on each occasion ; that on 13th June, 1968, he had suffered such an attack and was not able to move until 22nd June, 1968, that on 22nd June, 1968, he had come to the Court to deposit the rent, but as it was a holiday the rent was not accepted and, therefore, he deposited the rent on the next day ; that the second opponent, who is his real brother, is also suffering from .12 months and was being treated by a Medical Practitioner are Mirpurkhas, for which place he had left for treatment on 12th June. and returned on 23rd June, even ing ; and that the application is a belated one and the applicant has waived his right to ask for the striking off of the opponent's defence.

4. The learned Rent Controller found that the appellants had committed default in payment of the rent of the premises for the months of May and June ; that-they had not led any evidence in support of their claim that they were ill ; that even from the affidavit of. appellant Abdul Majeed it appears only that the appellants are suffering from a protracted illness, which was not a good ground for committing default in depositing the rent and that finally they had made no application for condonation of delay in depositing the rent. He accordingly allowed the application for striking off the defence of the appellants, placing reliance on Abdul Majid v. Saadullah (P L D 1.963 Quetta 16) The appellant preferred an appeal against the aforesaid order to the District Judge, which was dismissed by the Addi tional Sessions Judge, Larkana, on the ground that the rent for the months of May and June, 1968, had not been deposited in time and that the appellants had not established that it was not within their power to pay rent in time.

5. The learned Advocate for the appellants has contended that the factum of the illness of the two appellants stands fully established by the affidavit dated 2nd November, 1968 of appellant Abdul Majid, which has gone unchallenged since no counter-affidavit or evidence to the contrary was led by the respondent and, therefore, there was no wilful default on the part of the appellants. In support of his case he has relied on Abbul Majid v. Hafiz Abdullah (P L D 1969 Kar. 82). The facts of that case, however, were totally different from the facts of the present case. In the reported case, the Rent Controller had made an order for deposit of arrears of rent by a specified date and thereafter for payment of rent till the disposal of the matter. The tenant having failed to deposit the rent for five months in time, the landlord moved an application for striking off his defence. At the same time an application was made by the tenant for permission to deposit the rent and asking for condonation of delay on the ground that he had been ill. The Rent Controller permitted the tenant to deposit the rent, which was deposited on the same date, and at the same time he made an order on the application of the landlord that since the opponent had paid up all the arrears till 30th November, 1961, the application be filed. The landlord apparently was contented with that order and preferred no appeal. It was only when the main case was decided against the landlord on merits, that he took up the plea in the appeal before the High Court that the tenant had committed default and therefore, his defence should have been struck off. The High Court held that the question whether the tenant was preven ted by superior force in depositing rent could have been looked into and examined by the Rent Controller if the landlord had properly contested the matter, and since he had not done so it was not possible for the Appellate Court to go into this question.

6. The rent for the months of May and June, 1968, admittedly not having been paid in time, it was for the appellants to establish that the delay in payment was due to circumstances beyond their control. As obser ved by Sajjad Ahmad Jan, J., in Abdul Majid v. Saadullah (P L D 1963 Quetta 16) "to entitle the tenant to condonation, it seems imperative that he should without loss of time have made payment, explaining at the same time the circum stances for delay". The appellants, however, have failed, in the instant case, to account for the delay. The rent for the month of May was due before 15th June, 1968, while that for the month of .tune, 1968, was due before 15th of July, 1968. In his application dated 22nd July, 1968, appellant Abdul Majid has merely stated that he had not been able due to sickness to pay the rent for the month of June and therefore, he may be permitted to pay rent for the months of June and July. No mention was made by him in that application in regard to the default for payment of rent for May, or the sickness of appellant Muhammad Bux. Again, though the respondent in his application, dated 2nd November. 1968, for striking off the defence of the appellants had specifically alleged that they had committed default in payment of rent for the months of May and June, in the affidavit filed by appellant Abdul Majeed, he has contended that the rent for the month of June was deposited in time and it is only in respect of the rent for the month of July, that he has tried to show that he was not able to deposit it in time as both he and his brother were ailing from the 13th of June to the 22nd June, 1968, when he came to the Court to deposit rent. In the first place, the assertion in the affidavit that the rent for June, 1968, was paid in time is not correct. As is clear from the appli cation of appellant Abdul Majid dated 22nd June, 1:968, the rent for the said month was not deposited at least till 22nd July, 1968. It appears that the rent for the said month as well as for May, 1968, was deposited on 23rd July, 1968. Secondly, even if the affidavit of appellant Abdul Majid dated 2nd November, 1968 it accepted at its face value, the two appellants were ill for the period from 12th June to 22nd June. It has not been explained by the appellants why they were unable to deposit the rent for the month of May, 1968, immediately after 22nd June, 1968, and why the rent for June, 1968, was not deposited till 23rd July, 1968. The appellants have thus failed to give satisfactory account for the delay in depositing rent for the months of May and June. 1968, _ and have committed default.

The next contention of the learned Advocate for the appellants that the respondent landlord, not having moved an application for striking off the defence of the appellants for over 21 months after the period of the alleged default, should be deemed to have waived his right to ask for striking off the defence of the appellant also is without any substance. In support of this contention he has relied upon the observation of a learned Single Judge in the case reported in P L D 1965 Lab. 11. "That by his failure to bring the default to the notice of the Court for a period of one year, the landlord should be deemed to have waived his right to object in this behalf." The above observation was considered in Muhammad Shafi v. Allah Dino (P L D 1966 Kar. 523) where a delay of 5/6 months in bringing to the notice of the Rent Controller the default committed by the tenant was not consi dered to be waiver on the part of the landlord, as he was a blind person and had persistently been pursuing his application against the tenant. In the instant case, the respondent is said to be an old man of 80 years and had submitted his application for striking off the defence of the appellant within three months of the default having been committed by the appel lants. The respondent, therefore, cannot be considered to have waived hi right against the appellants .which resulted from the default committed by them.

8. For the foregoing reasons, t am of the opinion that there is no substance in the appeal and I accordingly dismiss the same with costs.

M.A K. Appeal dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.