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Second Appeal No. 190 of 1978, decided on 29th April, 1984.

---S.13--Ejectment on ground of default in payment of rent--'Tenant claiming adjustment towards rent of amount due from landlord--No clause in agreement about such adjustment existing--Order of ejectment passed by first appellate Court maintained--Tenant, held, wilful defaulter in circumstances.

S. Mazhar Imam for Appellant.

Faseehuddin Ahmed for Respondent.

Date of hearing: 16th April, 1984.

This second appeal has been filed against the judgment dated 1-4-1978 of IIIrd Additional District Judge, Karachi whereby tie has set aside the order of the IInd Rent Controller passed on 15-8-1977.

The facts of the case are that S. Arshad Hussain respondent filed a rent case on 2-12-1974, against the appellant under section is of the Urban Rent Restrictions Ordinance, 1959. The appellant is tenant in respect of shops Nos. 4/1 and A/4 of "KHATOON MARKET" S.M. Taufiq Road, Liaquatabad, Karachi, belonging to respondent at the monthly rent of Rs.60 and Rs.40 respectively. According to respondent appellant was supposed to tender monthly rent to the respondent regularly by first of each month. It is mentioned in tile rent application that appellant failed to pay rent from May, 1973 to December, 1974. Therefore, he is a defaulter.

Appellant filed his written statement in which he has stated that respondent purchased golden ornaments froth the appellant for Rs.2,200 and a sum of Rs.1,000 was paid in May, 1973, and even subsequently he took Rs.100 cash from him and he permitted the appellant to adjust the said amount towards the rent. He has also mentioned that after adjustment he sent a cheque of Rs.503, to the respondent as arrear' of rent upto November, 1974, and respondent accepted that cheque and encashed it.

The Rent Controller on the pleadings of the parties framed the following issues:---

(1) Whether the appellant has committed wilful default in payment rent

(2) Whether respondent is entitled to relief' claimed for' '

(3) What the order should be

The Rent Controller came to the conclusion that no default had been committed, therefore, he dismissed the application with cost vide his order dated 15th August, 1977. Being aggrieved respondent filed an appeal which was decided by IIIrd Additional District and Sessions Judge, Karachi who set aside the order of the Rent Controller and held that appellant is a wilful defaulter.

Before the Rent Controller appellant and the respondent examined themselves. The only question before me is whether the appellant was the wilful defaulter. As far as question of default is concerned it is admitted by the appellant in his written statement as well as in his letter, dated 6-12-1974, sent by him to the respondent that sum of 85.1,397 was due and payable by the appellant but he had agreed to adjust the same towards the monthly rent upto May, 1973. The appellant has not produced any documentary evidence in support of his case and there is no clause in the agreement about such at) adjustment. Even) for the sake of argument it is considered that there was some under standing between the parties, even then the amount of Rs.1,397 was sufficient for adjustment for future rent for only 13 months i.e. from May, 1973 to May, 1974 and thereafter from January 1974, the appellant had to pay his monthly rent to the respondent regularly. The appellant has paid Rs.503 on 7-12-1974, after the ejectment application was filed. He had not made any efforts to tender rent. This rent case was filed on 2-12-1974, as stated above. The failure on the part of the appellant cannot absolve him from the liability of payment of rent regularly. By sending money order he has admitted default even that amount covers the rent for 5 months. The Additional Sessions Judge in his judgment has fully discussed the evidence and other aspects of the case and finally ordered ejectment of the appellant.

From the record it is proved that appellant has committed wilful default in payment of rent, and he is liable to be ejected. Consequently the appeal is dismissed and appellant be ejected in the terms of the order of the learned Additional District and Sessions Judge.

M. Y . H . Appeal dismissed.

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