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Second Rent Appeal No. 419 of 1978, decided on 19th May, 1983.

‑‑‑ S. 15 (2)(vii)‑Ejectment proceedings‑Question regarding owner ship of property decided by Custodian in favour of landlord much earlier and tenant not challenging same‑Rent Controller, held, could not sit in judgment over order passed by Custodian regarding ownership‑Tenant bad no excuse for refusing pay ment of rent to landlord‑Tenant, if having doubt could deposit rent in Court by a miscellaneous rent case instead of paying rent to landlord‑Ejectment order passed by first appellate Court, ‑ in circumstances, upheld.

Abdul Aziz A. Shaikh for Appellants.

Qazi Shahid Ali for Respondents.

Date of hearing : 19th May, 1983.

This is a Second Rent Appeal. Rent Case No. 232/64 was filed by the respondents for ejectment of the predecessor‑in‑interest of the appel lants from the premises in question on the ground of default in the pay ment of rent from 1960. Rent Case was filed on 31st October, 1963. By order, dated 28th January, 1978 the learned Rent Controller dismissed the ejectment application. The respondents filed Rent Appeal No. 154178 which was allowed by the learned IVth Additional District Judge, Karachi by order, dated 23rd September, 1978 ordering ejectment of the appellants. This Second Rent Appeal has been filed by the appellants challenging the order, dated 23rd September, 1978 passed by the learned First Appellate Authority. I have heard Mr. Abdul Aziz A. Sheikh, learned counsel for the appellants and Mr. Qazi Shahid Ali, learned counsel for the res pondents.

It was submitted by learned counsel for the appellants that title of the property in question was in dispute and the respondents had filed Suit No. 1349/60 against the predecessor‑in‑interest of the appellants in the civil Court for ejectment and recovery of rent. This suit was decided on 25th September, 1963 in which it was held that the respondents were the owners of the property and a decree was passed in favour of the res pondents for rent due up to January, 1960. It was submitted by learned counsel for the appellants that within about one month of the decision of Suit No. 1349/60, ejectment case was filed by the respondents on 31st October, 1963. It was contended that a reasonable period of time should have been granted for the payment of rent to the tenant after the decision in Suit No. 1349/60 and as this was not done and the ejectment case was filed in haste, no wilful default was committed. It is an admitted posi tion that rent had not been paid from January, 1960 till filing of the ejectment case. The question of the ownership of the property in ques tion had been decided much earlier by the custodian authorities and no proceedings were taken by the tenant for challenging the orders passed by the Custodian. Then it is not the case of the appellant in their written statement that they should have been granted time to pay the rent after the decision of Suit No. 1349/60. In the written statement also the title of the respondents had been challanged and it was averred that rent had not been paid and would not be paid till the title of the respondents was established. In the rent proceedings, the learned Rent Controller could not sit in judgment over the orders passed by the Custodian and then the tenant had not taken any proceedings for setting aside the orders of the Custodian. In the circumstances the tenant had no excuse for refusing to pay rent to the respondents. If at all there was any doubt, instead of paying the rent to the respondents, the rent could have been deposited in Miscellaneous rent case.

It was then contended by learned counsel for the appellants that dis cretion was exercised by the Rent Controller in favour of the appellants and the First Appellate Authority should not have reversed the order of the Rent Controller. I have already observed that default had been committed for several years in the payment of rent and the tenant had no excuse for refusing to pay the rent and in the circumstances the discretion was not exercised properly in favour of the appellants by the learned Rent Controller. In my view the order of the learned First Appellate Authority, has been passed in accordance with law on the basis of the evidence on record. I find no merit in this Second Appeal.

Second Appeal No. 419/78 is dismissed with no order as to costs, as costs are not claimed by learned counsel for the respondents.

With the consent of learned counsel for the respondents, the appel lants are granted time till 31st December, 1983 to vacate the premises.

M. Y. H Appeal dismissed.

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