Find a Lawyer

Civil Petition No. 285‑K of 1985, decided on 15th August,1985.

(On appeal from the judgment and order of the High Court of Sind, dated 7‑4‑1985, in FRA 383/82).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.16(2)‑‑Ejectment‑‑Failure to comply with order for deposit of rent within prescribed time‑‑Explanation for delay unsatisfactory‑‑Concurrent finding of fact by two Courts not open to interference‑‑Plea that default not being wilful, discretion should have been exercised in tenant's favour repelled‑‑No such plea was raised before High Court nor there was anything on record to show that default was on account of circumstance beyond tenant's control‑‑Leave to appeal refused.

Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th August, 1985.

This is a petition for special leave to appeal from the judgment of a learned Single Judge of the Sind High Court, dismissing the petitioner's appeal under section 21 of the Sind Rented Premises Ordinance, 1979.

2. The petitioner is in occupation of the demised premises as a tenant of the respondents who had sued him for eviction before the Rent Controller. The latter passed an order under section 16 (1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) directing the petitioner to deposit the arrears from January, 1976 to July, 1980, amounting to Rs.1,375 before the 30th September, 1980 and further directing him to regularly deposit the future monthly rent from August, 1980 onwards on or before the 10th of each succeeding month. On 2nd November, 1981, the landlord sought the defence of the tenant to be struck off under section 16 (2) of the Ordinance, on the ground that the tenant had failed to comply with the order for deposit of rent. The tenant objected to this application and in his reply submitted that he had fallen seriously ill during the period from 2nd October to 18th October, on account of which he was unable to deposit the rent which he did by depositing a sum of Rs.100 as rent upto December, 1981, immediately on recovering from his illness. The learned Rent Controller found that the tenant had deposited the rent beyond time for the month of August, 1980, and the month of September, 1981 which he deposited or. 13th October, 1981. The explanation of the tenant that 11th September, was a public holiday, 12th September, was a Friday and on 13th September, the Court was closed on account of the demise of the former Chief Justice, was found unsatisfactory by the learned Rent Controller, in that, no explanation was furnished for the failure deposit the rent on 10th September, 1980. It was, therefore, held that in depositing the rent for the month of August, 1980, on 14th September, 1980, the tenant had committed default in compliance with the order. As regards, the failure to deposit the rent for the month of September, 1981, within the prescribed time the learned Rent Controller rejected the plea of the tenant that he was prevented from doing so on account of illness. Accordingly by his order, dated 21st February, 1982, the learned Rent Controller allowed the application of the landlord under section 16 (2) of the Ordinance with the result that he struck of the defence of the tenant and directed him to vacate the demised premises.

3. On appeal, the learned Judge in the High Court upheld the finding of the learned Rent Controller in regard to the default pertaining, to August, 1980. He also repelled the contention that the amount of Rs.1,375 directed to be deposited as outstanding arrears was inclusive of the rent for the month of August, 1980. In this view of the matter, the learned Judge did not feel called upon to go into the question of the second default committed by the tenant in respect of the month of September, 1981. Accordingly, the learned Judge dismissed the appeal of tenant as already stated.

In support of this petition it has been urged by the learned counsel that the petitioner had not committed default in the compliance of the order passed by the Rent Controller for deposit of rent. The further submission of the learned counsel was that in any case the tenant had not committed wilful default and as such was entitled to the exercise of discretion in his favour. After hearing the learned counsel at length we find no substance in either of these contentions. The established facts on the record clearly show that the tenant had deposited the rent for the month of August, 1980 on 14th September, 1980 and no explanation was given for failure to deposit the same on the 10th September, 1980. This concurrent finding does not appear open to any doubt and being a question of fact is not liable to be up set at this stage. The question of exercise of discretion also does not arise as no such plea was raised in the High Court and in any case there is nothing on record to show that the failure to deposit the rent on that date was on account of circumstances beyond the control of the tenant.

4. For the foregoing reasons, the judgment of the High Court is not open to exception and this petition is, therefore, dismissed.

M . I . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.