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Civil Petition No. K‑41 of 1984, decided on 29th May, 1984.
(On appeal from the judgment and order of the High Court of Sind Bench at Sukkur dated 15‑11‑1983 passed in First Rent Appeal No. 14 of 1983).
‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15‑‑Leave to appeal‑‑Grant of‑‑Discretionary jurisdiction‑ Ejectment of tenant on ground of default‑‑Set aside in appeal‑‑Order impugned‑‑High Court having exercised discretion to relieve tenant of consequence of non‑payment of rent on finding that landlord was deliberately refusing to accept rent in view of dispute between parties over amenities provided in demised premises‑‑Supreme Court ordinarily not to interfere with discretionary order unless shown that discretion was exercised capriciously and on principles other than judicial‑‑No such circumstance having been pointed out, leave to appeal refused.
Shaikh Abdul Aziz, Advocate Supreme Court instructed by S. Anwar Ali, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 29th May, 1984.
Respondent Shah Nawaz was ordered to be evicted from the demised premises let out to him by order dated 18‑12‑1982 passed by the Rent Controller, Sukkur. The finding of the learned Rent Controller was that the rent for the period from August, 1977 until December, 1977 was not tendered or paid by the respondent. The plea of the respondent was that he had remitted rent for the month of August, 1977 by means of a money order which was refused. In proof of this fact the respondent summoned the concerned postman who testified that he had once offered the money order to the petitioner who is the landlord but he refused to accept it. However, the original record from the postal department could not be produced due to lapse of time and transfer of record to Lahore. The learned Rent Controller held that taking into consideration all the circumstances, the respondent was at least in default for the month of September, 1977.
2. On appeal filed by the respondent the High Court of Sind disagreed with the finding recorded by learned Rent Controller and held that the respondent had not committed wilful default in the payment of rent. The circumstances on record taken into consideration by the High Court were that the dispute between the parties started in March, 1977 when the respondent's water‑supply was disconnected by the petitioner and the matter was referred to Martial Law Authorities in August, 1977. Then before the filing of the ejectment application by the petitioner the respondent applied to the Rent Controller for permission to deposit rent in Court, which application was eventually allowed and the rents were deposited by the respondent in March, 1978. Having regard to this background of the dispute between the parties the High Court felt that the plea taken by the respondent that the petitioner had refused to accept the rent appeared to be correct. Therefore, the learned Judge of the High Court exercised discretion in favour of the respondent and allowed his appeal, rejecting thereby the eviction application filed by the petitioner.
3. The petitioner has now brought this petition for special leave to appeal against the judgment of the High Court, dated 15‑11‑1983 and we have heard Mr. Shaikh Abdul Aziz, learned Advocate appearing for the petitioner. He has urged that the High Court was wrong in exercising discretion in favour of the respondent and that the circumstances of the case indicate a wilful default on the part of the respondent. After hearing him at length, however, we are unable to see any force in these contentions. The High Court has exercised discretion to relieve the tenant of the consequence of non‑payment of rent on the finding that the landlord was deliberately refusing to accept the rent in view of the dispute between .the parties over the amenities provided in the demised premises. This being a case of discretionary order we would not ordinarily interfere with it unless it is shown that discretion has been exercised capriciously and on principles other than judicial. No such circumstances have been pointed out by the learned counsel.
4. In view of the foregoing we think that this is not a fit case for leave and the petition is, therefore, dismissed.
M. I. Petition dismissed.
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