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S. 13-Non-payment of rent for 4 years admitted by tenant Reasons for non-payment of rent being not wilful nor established by tenant-Default, held, wilful and eviction ordered.

S. 13-Eviction proceedings-Default-Demand of excessive rent, held, does not absolve tenant of his obligation to pay or tender rent due and payable.

S. 13-Default-Pendency of dispute between Settlement Autho rities per se, held, not a ground for condoning default. Muhammad Hussain v. Amatul Batool 1970 S C M R 286 ref.

Kh. Muhammad Farooq for Appellant.

Sh. Masood Akhtar for Respondent.

Date of hearing: 9th February, 1982.

JUNGMENT

This second appeal arose out of an ejectment petition filed by the appellant against the respondent on the grounds of default and bona fide personal need. The shop in dispute was an evacuee property and was transferred to the appellant vide P. T. D. dated 19th June, 1963. A notice dated 18th December, 1969 Exh. P. 3 was served demanding rent for the period commencing from 1st October, 1965 to 30th November, 1969 at the rate of Rs. 100 per mensem. The respondent denied the relationship of landlord and tenant as well as the service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and on the pleadings of the parties two preliminary issues were framed. These preliminary issues were decided in favour of the appellant-landlord vide order dated 26th .May, 1971. Thereafter the learned Rent Controller framed issues on merits in respect of default and bona fide personal need. After recording the evidence and hearing the arguments of the parties, the learned Rent Controller vide order dated 22nd February, 1973 accepted the petition as he held that the default was wilful and that the shop in dispute was, in good faith, required for personal use by the landlord. The respondent filed an appeal which was accepted vide judgment dated 5th May, 1976. The learned Additional District Judge, Lyallpur agreed with the finding that the respondent-tenant had defaulted in making pay ment of the rent for entire period of default, but disagreeing with the learned Rent Controller recorded the view that the default was not wilful. The finding on the question of bona fide personal need was also reversed. The judgment dated 5th May, 1976 is under challenge , in this Second Appeal.

2. The learned counsel for the appellant argued that the learned Appellate Court has erred in law in holding that the default was not wilful because pendency of dispute as a transfer before Settlement Authorities cannot be considered to be a reason for condoning the non-payment of rent for almost a period of 4 years. He also submitted that the demand of excessive rent also would not furnish a cause for not paying ,the rent at all, and that in any case these two grounds fail to provide a reason- a able basis for exercise of discretion in favour of the tenant. Learned counsel also argued that the bona fide personal need was established on record but the learned Additional District Judge failed to apply his mind and acted arbitrarily in reversing the finding returned by the Rent Controller. .

3. Learned counsel for the respondent in reply relied on the observa tions of the learned Additional District Judge, the appellate Authority and contended that as discretion was exercised properly and judiciously, no interference was called for in second appeal.

4. The learned Additional District Judge for holding that the default was. not wilful, appears to have accepted the argument that a reasonable apprehension was entertained by the respondent that if he paid or tender. ed the rent, he may be considered to have waived the right to seek transfer of the shop or to be debarred from claiming the property in dispute as he observed that the appellant could in the circumstances of the ca reasonably apprehend that in case he starts paying rent to the respondent, that will weaken his case and may not prove fatal to the cause for which he was vehemently making efforts .and that these state of affairs -definitely show that the default, was not wilful. The second reason for condoning the default was demand of excessive .rent by the respondent.

5. Assuming that the respondent entertained any such .apprehension, even then both the grounds which weighed with the learned Additional District Judge are not in law sufficient for holding that the default made was not wilful. The demand of excessive rent will not absolve the tenant of the obligation to pay or tender the rent due and payable for the premise in his occupation. Again pendency of a dispute before the Settlement Authorities per se is no ground for condoning the default. Reference is invited to Muhammad Hussain v. Amatul Batool (1970 S C M R 286), as in this case it was held that the mere fact the dispute was going op between the parties in the Settlement Department is no ground to condone the default made. As both the reasons for holding that the default was not wilful were not available and. the non-payment of rent for a period .of 4 years being admitted, there was no option but to hold the default to be wilful. The appeal, therefore, merits to be accepted on the ground of default alone.

6. In the above view of the matter there is no need to go into the, question of bona fide personal need. Moreover the view taken in this respect by the appellate Court cannot be considered to be arbitrary or capricious. Despite the fact that the finding recorded in respect of the plea of self-requirement is not being reversed this appeal, as indicated above, merits to be allowed on the ground of default. The result of the above discussion is that the judgment dated 5th May, 1976 of the learned Additional District Judge is reversed thereby restoring the order of ejectment passed by the learned Rent Controller. The respondent is, however, granted two months time to deliver vacant possession of the shop in dispute. The appeal is, therefore, accepted with costs.

Appeal accepted.

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