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First Rent Appeal No.270 of 1985, decided on 24th May, 1987.

--S. 15(2)(ii)--Default in payment of rent-- Condonation of delay- Where tenant failed to pay rent of premises even after expiry of grace period of 60 days allowed, no plausible reason would appear for condoning such default in payment of rent.

Mohammad A. Aziz Khan for Appellant.

A. Rashid for Respondent.

Date of hearing: 24th May, 1987.

This appeal is directed against an order dated 17-3-1985 passed by the learned Xth Senior Civil Judge and Rent Controller in Rent Case No.5069 of 1980 granting the respondent's application for ejectment on the ground of default but rejecting the other ground namely, personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the respondent filed aforesaid rent case on the ground of personal requirement and default for the period commencing December, 1979 to September, 1980. The above application was resisted by the present appellant. On the basis of the pleadings of the parties the learned Rent Controller framed the following three issues:-

(1) Whether the applicant requires the premises in good faith for her own use

(2) Whether the opponent is will full defaulter in payment of rent

(3) What should he order be "

3. The respondent in support of the application examined her son Masood Ali Ex.1, where as the appellant examined himself as EA.2, Inayatullah son of Mohammad Hussain Khan Ex.3 in alleged regular visitor of the suit premises, Laiq Ahmad Siddiqui son of late Ali Ahmad Siddiqui Ex.4, a neighbour and Shaikh Fareed s/o Shaikh Imam Ex.5, a tenant of a portion of the very house. The learned Rent Controller after hearing the parties allowed the above rent application on the above ground of default. The appellant being aggrieved by the above order has filed the present appeal.

4. In support of the above appeal, Mr. A. Aziz Khan learned counsel for the appellant has vehemently contended that there was no default and if there was any alleged default it was only for the month of June, which should have been condoned by the learned Rent Controller in view of the fact that tenancy had been for quite some time and there had not been any default on the part of the appellant.

Whereas Mr. A. Rasheed learned counsel for the respondent has submitted that even if the evidence of the appellant is to be taken into consideration, there was admittedly default for the month of June which remained unexplained.

5. I have gone through the evidence of the above witnesses. It was the case of the appellant that he had paid rent up to May 1980 to Masood Ali who had not passed on the receipt on the pretext that his mother was not well and he would give the receipt after she recovers from illness, whereas for the months of June to September the case of the appellant was that he had paid the rent through aforesaid tenant Shaikh Fareed, who is a tenant of the portion of the very house as according to him he had gone to India on 8-6-1980 and had come back on 2-9-1980. Shaikh Fareed in his deposition had stated that he had paid the rent in presence of P.Ws. Inayatullah and Laiq. However, the above two witnesses in their cross-examination have admitted the fact that the rent was not paid in their presence. In this view of the matter apparently the payment f or the month of June to September was not proved except the statement of Shaiki Fareed is on the point. It may be observed that an identical case filed against Shaikh Fareed namely, Rent Case No.5068 of 1980, in which the ground of default was disbelieved as he had produced a katcha receipt, photostat copy of which has also been brought on the file of this case as Ex.1/B, which indicates that Shaikh Fareed had paid a sum of Rs.1,100 for the period January to August, 1980. On the basis of the above receipt it has been contended by Mr. A. Aziz Khan that this document supports the case of the appellant as to the non-issuance of the receipt for the month of January to May, 1980 whereas the payment for the month of December, 1979 has been admitted by the respondent's witness when he was confronted with a receipt The above document lends support to the appellant's case upto the period expiring May, 1980. However, according to his own showing he has paid rent for the months of June to September through P.W. Shaikh Fareed, who had allegedly paid the same in presence of two witnesses P.Ws. Inayat and Laiq. Since the above two witnesses have denied the factum of payment of any rent in their presence, it can be concluded that the appellant failed to prove the payment for the above months. Then it was contended by Mr. A. Aziz Khan that the rent case was filed on 14-9-1980 whereas the alleged default period would be for the period of June to August, 1980. According to him if the grace period of 60 days is to be excluded, there would be default of June 1980 only which should have been condoned by the learned Rent Controller, particularly when he had disbelieved the ground of personal requirement and there had not been any default prior to the filing of the above rent case.

6. It may be observed that the grace period allowed by the Ordinance provides the margin within which the lapse on the part of a tenant is condoned by law. Since after excluding the above 60 days' grace period, there still remains default for the month of June A and as admittedly the payment of rent for the above month has not been proved till today, there appears to be no plausible reason for condoning this default.

I would, therefore, maintain the finding of the learned Rent Controller on the question of default and, therefore, dismiss the appe6l with no order as to costs, but I would allow 8 months time to the appellant to hand over the vacant possession on the condition that he shat continue to deposit rent in terms of Rent Controller's Order, failing which the respondent will be at liberty to file execution application before the expiry of the above. Period of 8 months. Furthermore, in case the appellant fails to hand over the----- possession on the expiry of above period of 8 months, the learned Rent Controller, shall issue writ of ejectment without any further order

H.B.T./A-214/K Appeal dismissed.

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