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First Rent Appeal No.616 of 1983, decided on 31st August, 1986.

‑‑‑S.15(2)(ii)‑‑Payment of rent after commission of default‑‑Effect‑‑Rent paid by tenant after commission of default before filing of eviction application against him, held, would be of little significance and such payment could not erase consequences of default already committed by tenant‑‑Contention, that after receipt of such payment, landlord had waived his right to file eviction application, had no substance.

‑‑‑S.21(1)‑‑Finding of Rent Controller based on sound reasoning and quite in accord with principles laid down by superior Courts were upheld in appeal.

M. Umer Qureshi for Appellant.

Syed Nabi Raza for Respondent.

Date of hearing: 24th August, 1986.

This First Rent Appeal is directed against the order, dated 24‑7‑1983 passed by the XIIth Senior Civil Judge/Rent Controller, Karachi, whereby she allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant possession of the premises in question to the respondent within sixty days from

The facts leading to the filing of the above appeal are that the respondent is an exclusive owner and landlord of premises No.203/3, at Tannery Road, Behar Colony, Karachi, and the appellant is tenant in respect of shop at the monthly rental of Rs.100. The respondent filed eviction Application No.2628 of 1981 against the appellant on the ground of default for the period commencing from‑1‑7‑1980 to 30‑6‑1981 amounting to Rs.1,200. The appellant resisted the eviction application. The respondent filed his own affidavit‑in‑evidence in support of the application and reitrated the same facts. In rebuttal the appellant filed his own affidavit and stated therein that he had not committed default in payment of rent to the respondent. They were cross‑examined by the respective counsel of the parties.

The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application vide order, dated 24‑7‑1983.

The appellant being aggrieved against the order, dated 24‑7‑1983 of the XIIth Senior Civil Judge/Rent Controller, Karachi has filed this First Rent Appeal on the grounds disclosed in the memo. of appeal.

Mr. M. Umer Qureshi the learned counsel for the appellant has contended that the respondent filed the eviction application after receiving rent for eleven months on 15‑5‑1981 which he could not do so as he waived his right. His contention is that the appellant had not committed default.

On the other hand, Mr. Syed Nabi Raza, the learned counsel for the respondent has submitted that the appellant committed default in payment of rent and the mere acceptance of rent after due date does not absolve the tenant from the penalty prescribed by law.

The point for consideration is whether the respondent waived his right to file eviction application.

It is an admitted position that the appellant did not pay rent for the period commencing from 1‑7‑1980 .to 30‑6‑1981 on due date. It is an admitted position that the respondent received rent for the disputed period on 15‑5‑1981. It is also an admitted position that the respondent filed the eviction 'application on 29‑5‑1981, that is, after receipt of the rent for the disputed period: The payment of rent under section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 should be within fifteen days of the date specified in the agreement and in case there is no agreement with sixty days of the rent becoming due. The fact that the rent was paid by the tenant after default was committed before the filing of the eviction application against him is of little significance, as such payment of rent on the part of the tenant cannot erase the effect or consequences of default already committed by him. In these circumstances, the contention of the learned counsel for the appellant that the respondent waived his right to file the eviction application has no substance. I find that the Controller in this case, rightly came to the conclusion that the appellant had committed default and finding is based on sound reasoning which were in accord with the principles laid down by the superior Courts.

As a result of the above discussion the appeal is dismissed and the order of the Controller is upheld. The appellant is allowed four months time to vacate the premises. The appeal was dismissed by a short order, dated 24‑8‑1986 and the above are the reasons for the same.

H.B.T. Appeal dismissed.

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