1993 PLP 1734 (CLC)

Respondent Syed Nasir on 18‑3‑1987 filed eviction application against appellant on the ground of default in payment of rent. The case of respondent is that he is a co‑owner of the building, known as Nizamia Corner, on Plot No.SR.7/12, near Denso Hall, M.A. Jinnah Road, Karachi, and appellant is a tenant of the office premises No.313 on 3rd floor of said building on monthly rent of Rs.170 including electric charges. It is alleged that appellant is a habitual defaulter and he did not pay rent for 19 months commencing from Ist August, 1985 till 28‑2‑1987. The appellant resisted the claim of respondent and stated that month wise rent was never collected by respondent or his agent. According to him, rent from January, 1984 to January, 1985 was collected by respondent on 1‑1‑1985 and rent for the period from February, 1985 to July, 1985 was accepted on 1‑7‑1985. It is alleged that the rent collector of respondent .on one ground or the other avoided to receive rent. Therefore, the appellant, having no other alternative, deposited rent from August, 1985 to May, 1987 in Court through Misc. Rent Case No.555. He added that he had not committed any default in payment of rent. Also, he has taken the pleas that an amount of Rs.25,000 was paid by him as pugree to respondent and no intimation regarding change of ownership in respect of building was received by him. On behalf of respondent, Ghulam Muhammad filed his affidavit‑in evidence, which has gone unchallenged. The appellant and his Advocate had remained absent on 21‑2‑1988, 29‑2‑1988 and 21‑3‑1988 and appellant even did not file his affidavit‑in‑evidence Learned Rent Controller settled the following issues:‑‑ (1) Whether there exists relationship of landlord and tenant between the parties. (2) Whether Opponent has committed default? (3) Whether Opponent has paid pugree in obtaining the disputed premises? (4) What should the order be? On assessment of evidence brought on record, learned Rent Controller decided Issues Nos.l and 2 in the affirmative and Issue No.3 in the negative. Consequently, she allowed the eviction application by the order, which has been impugned in this appeal. The appellant on 4‑1‑1988 was directed to withdraw rent from Misc. No.555/87 and deposit the same in the name of respondent till 30‑1‑1988. The appellant was further directed to .deposit future rent from January, 1988 onwards before 10th of each succeeding month. It appears that this order was not complied with. It is contended on behalf of appellant that proper opportunity was not given to him for cross‑examining the respondent. Also, it has been argued that finding of the learned Controller on the point of default is incorrect and contrary to the material available on record. Learned counsel contended that, under the circumstances, the case be remanded to learned Controller for deciding it afresh after affording an opportunity to appellant to cross‑examine the respondent. In support of these contentions, he cited (1) PLD 1965 SC 669, Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (2) PLD 1966 SC 461, Babu Jan Muhammad and anothers v. Dr. Abdul Ghafoor and others. In Seth Shivrattan G. Mehetta's case, it was held that for Counsel's negligence in prosecution of suit the plaintiff shall not suffer. 1n Babu Jan Muhammad's case, Counsel arrived late being busy in High Court. In these circumstances, it was observed by Hon'ble Supreme Court that there was sufficient cause for restoration of the matter. Above contentions have no force and the cited cases are distinguishable. It is evident from the case diary that neither appellant, nor his counsel had taken any interest in the matter before learned Rent Controller. As mentioned earlier, on so may dates they remained absent without any justification and so was deen by them even before this Court. This appeal on 18‑9‑1991 was dismissed for non‑prosecution, but later on was restored. The affidavit‑in‑evidence filed on behalf of respondent has gone unchallenged wherein it has been specifically stated that appellant had paid rent to respondent from 1‑1‑1984 to July, 1985 and did not pay rent for the period commencing from 1‑8‑1985 to 28‑2‑1987, and that no Pugree was paid to respondent, and that since appellant had already paid rent to respondent for more than two years, he could not claim notice for change of ownership. Thus, it stands proved that appellant had committed wilful default in payment of rent for the period mentioned earlier. There is no justification for remanding the matter to the Lower Court. Also appellant failed to prove that he had paid any pugree to respondent. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to cost. The appellant is directed to hand over vacant possession of the premises in question to the respondent within three months from now. H.B.T./I‑221/K Appeal dismissed.