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Second Appeal No.32 of 1983, heard on 20th October, 1983.

---Ss.13 & 14- -Ejectment on ground of default in payment of rent In first application eviction was sought on ground of default in payment of rent from June, 1973 to November, 1973 while in second application eviction was sought on ground of default in payment of rent from December, 1973 to December, 1976--Issues of default in two applications related to two different causes of action--Section 14, held, not applicable to second application.

---S.13--Ejectment--Default--Tenant failing to pay rent in view of compromise in distress warrant proceedings--Held, default on part of tenant in payment of rent is clear and wilful.

Attaullah Khan for Appellant.

Date of hearing: 20th October, 1983.

In this appeal and Second Appeal No. 33 of 1983, the parties are common. The dispute in both the cases relates to house bearing No.A-67, Block 'C'. Barkat-i-Hyderi, North Nazimabad, Karachi, from which the eviction of the appellant has been ordered by the Controller by separate orders both dated 13-2-1979, passed in Rent Cases Nos. 2935 of 1973, and 208 of 1977. Two separate appeals were preferred against the orders of the Controller and both have been dismissed by the Second Additional District Judge, Karachi by two separate orders both dated 5-10-1983. I however, propose to dispose of both these appeals by this common order.

2. The appellant as tenant and Mst. Mariambai as landlady entered into an agreement of tenancy in respect of the aforesaid house at a monthly rent of Rs.200. At the commencement of the tenancy in March, 1973, the appellant paid two months rent and also deposited a sum of Rs.1,500 as fixed deposit He however, failed to pay rent with effect from June, 1973, and therefore, the landlady served a notice on him in September, 1973. On appellant's failure to pay the rent. in October, 1973, the landlady filed an application for distress warrant in the small Causes Court, Karachi, being D.W.A. No.534 of 1973, Accordingly, D.W. was issued. But during the pendency of the proceedings on 7-11-1973, the parties filed a compromise application, the terms contained therein may be reproduced herein below in extenso.

"(1) That opponent undertakes to vacate the premises in question on 30-11-1973 positively.

(2) That the applicant will adjust Rs.1,250 towards rent dues from the fixed deposit lying with her and the balance of Rs.250 will be paid to the opponent on delivering vacant possession of the house.

(3) That D.W. is compromised withdrawn as in terms of this compromise."

3. The compromise was recorded and the proceedings were disposed of in terms thereof.

4. However, the appellant failed to deliver vacant possession of the house to the landlady Mst. Mariam. She, therefore, in December 1973, filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) on account of default in payment of rent from June, 1973 to November, 1973.

5. The proceedings remained pending. During the pendency of the said proceedings on 15-1-1977, the landlady filed another rent application under section 13 of the Ordinance for eviction of the appellant on the ground of default in payment of rent from December, 1973 to December, 1976. Both the applications, as stated above, were finally disposed of by two separate orders both dated 13-2-1979.

6. The first appeals filed against both the orders also failed, and therefore, the appellant has filed the present appeals.

7. During the pendency of the first appeals the landlady, sold the transferred house to Muhammad Moiz Abbas, the present respondent.

8. I have heard Mr. Attaullah Khan learned counsel for the appellant. He submitted that in view of the pendency of the first application, the second application was not maintainable and in this connection he relied on the provisions of section 14 of the Ordinance, which reads as follows:-

"14. The Controller shall summarily reject any application under section (2) or "under subsection (3) of section 13 which raised substantially the same issues as have been finally decided in a former proceedings under this Ordinance."

9. Mr. Attaullah Khan stated that in the second application, i.e Rent Application No.208 of 1977, he had filed the application under section 14 of the Ordinance which remained pending and was not disposed of .

10. I am however, of the view, that application under section 14 of the Ordinance was misconceived for section 14 of the Ordinance provides that the Controller shall summarily reject any application under sub-section (2) or under subsection (3) of the Ordinance which raises substantially the same issues as have been finally decided in the former proceedings under the Ordinance, for the reasons, firstly, the former proceedings were pending and no issue was finally decided in those proceedings, secondly, in the first proceedings the eviction was sought on the ground of default in payment of the rent from June, 1973 to November, 1973, while in the second application eviction of the appellant was sought on the ground of default in payment of the rent from December 1973 to December 1976. Therefore, the issues of default in two applications related to two different causes of action. Therefore, section 14 has no application to the second application.

11. On merits of the case the appellant furnished no explanation except that the appellant's Advocate in rent proceedings, namely, Mr.V.P. Shaikh had died and, therefore, he could not locate the file and could not attend the Court. This explanation did not find favour either with the Controller or the Additional District Judge. The learned Additional District Judge, has stated that it was the duty of the appellant to have been vigilant enough in pursuing the matter. I agree with him. Obviously the appellant failed to pay rent in view of the compromise in the D.W proceedings, whereby the appellant undertook to vacate the premises by the end of November, 1973. Therefore, default on his part is clear and wilful.

12. I, therefore, find no substance in both the appeals and dismiss them in limine. Since the learned Additional District Judge has not allowed the appellant any time I allow the appellant two months more time from today to vacate the premises and handover its vacant possessions to the respondent provided, he continues to deposit the rent with the Controller, failing which, notwithstanding the above order, the appellant shall become liable to be evicted and shall be evicted forthwith.

M . A . K . Appeal dismissed.

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