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Second Appeal No.27 of 1983, decided on 5th September, 1983.

--Ss.13 & 15--Default in payment of rent--Tenant defaulted in payment of rent for seven months--Explanation for default that tenant tendered rent regularly but landlord avoided to receive same and tenant being illiterate and simple man did not perceive that such refusal was with ulterior motives but all the same remitted rent for seven months by money order--Explanation for default, held, not reasonable--Normal behaviour of tenant in such circumstances should have been to remit amount immediately by money order to save tenancy--Second appeal against ejectment order dismissed.

Mehrban Ali v. Haji Muhammad Qassim P L D 1966 Lah. 1052 ref.

S.Ansar Hussain for Appellant.

Shafaat Hussain for Respondent (on pre-admission Notice).

This is a second Appeal by the tenant to challenge concurrent orders of the Controller and the Additional District Judge No.III, Karachi. By such orders the appellant had been ordered to be evicted.

Pre-admission notice had been issued to the respondent, and I have heard Mr.Shafaat Hussain.

In 1974, the respondent /landlord filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance against the appellant on the ground of default as also on the ground of conversion of the premises from residential to commercial in the matter of use thereof. It was alleged by the respondent that the appellant had not tendered, or, paid the monthly rent for the months beginning November, 1973, and ending June, 1974. The rate of rent was Rs.7.50 per month. The reply of the appellant was in the following words:-

"The applicant as usual avoided to receive the payment and the opponent being illiterate and simple man believed him and did not know that this time he did so with this ulterior motive. Anyhow as soon as the opponent came to know about his ulterior motive, he remitted the entire amount of rent by money order which he refused to accept.

The above averment is a re-production from paragraph 2 of the written statement.

In regard to the use of the premises for commercial purposes, the findings of the Controller were in the negative.

The short question is, whether the appellant committed default in payment of rent, and, if so, whether the default was of a nature that deserves to be condoned.

The above passage from the written statement of the appellant before the Controller would clearly show that the case set up by the appellant was that he tendered the rent regularly, but the respondent avoided to receive the same, and that the appellant, being an illiterate and simple man, did not perceive that such refusal by the respondent was with ulterior motives, but all the same the appellant remitted the rent by way of a money order. The money order has admittedly been sent on 12-7-1974, viz. after nearly seven months of the default. If the appellant had tendered rent, which had been refused by the landlord, then the normal behaviour of the tenant should have been to remit the amount immediately by money order in order to save his tenancy. There appears to be no reasonable explanation of the conduct that, in spite of the landlord refusing to accept rent, the appellant allowed the rent to accumulate for seven months. The only excuse given for such late tender of rent by money order is illiteracy and simplicity of the appellant. I have not been impressed by such defence. Moreover, such defence has been disbelieved by both the Courts below, and for substantial and cogent reasons. While dealing with Second Appeal, this Court rarely interferes on facts, and surely this is not a case, requiring interference by this Court in Second Appeal. The learned Advocate has, however, relied on the case of Mehrban Ali v. Haji Muhammad Qassim P L D 1966 Lah. 1052. In this case, the facts were entirely different, because they landlord had admitted that he used to receive rent collectively and periodically. In the instant case, there is no such admission by the landlord. On the contrary, it is stated that the default was persistent and deliberate.

I see no substance in this appeal, which I dismiss in limine.

M. A. K. Appeal dismissed.

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