1986 PLP 471 (CLC)

Najmuddin v . Zamir Ahmed P L D 1982 Kar. 188 and Sital Das v. Haji Muhammad Saffar P L D 1984 Kar. 87 distinguished. Sh. Muhammad Usman for Appellants. Khalid M. Ishaq for Respondent. Dates of hearing: 23rd and 24th September, 1985. This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the tenant /appellant, against the order of Rent Controller, dated 29‑7‑1985, granting eviction of appellant in Rent Case No. 1828 of 1978 instituted by the respondent. The rent application was instituted by the respondent. On 15‑4‑1978, alleging default in payment of rent from September, 1976 to 31st March, 1978 and reconstruction of the premises. The Rent Controller after recording evidence of the parties and hearing them, however, allowed the application only on ground of default and rejected the same on the ground of reconstruction of the premises. The appellant has challenged in this appeal the order of eviction passed against him by the Rent Controller on the ground of default. The respondent /landlord while contesting the appeal also supported the order of the Rent Controller on the ground of reconstruction of the premises which has been decided against her. At the hearing of appeal Mr. Shaikh Muhammad Usman the learned counsel for the appellant very frankly conceded that the dismissal of ejectment application by the Rent Controller on the ground of reconstruction of the premises is not in accordance with the law, therefore, he will have no objection if the findings of Rent Controller is reversed on this issue. After going through the order of Rent Controller I also feel that there was no justification for dismissal of ejectment case on the ground of reconstruction of the premises. The findings of Rent Controller on this issue is, accordingly, reversed. On issue of default the learned counsel for the appellant, contended that the order of Rent Controller granting eviction of the appellant on the ground of default is based on mis-appreciation of evidence. It is firstly, contended by the appellant's counsel that there was no default on the part of appellant in the circumstances of the case and, alternatively it is urged that the default if any, could not treated as either wilful or deliberate so as to call for an order of eviction against the appellant. It is an admitted position in the case that the premises in dispute was originally owned by one Jalilur Rehman. The said Jalilur Rehman died and after his death a notice, dated 13‑1‑1973, was served on the appellant by his legal heirs intimating the death of Jalilur Rehman. After receipt of above notice, the appellant used to pay rent regularly to the legal heirs of Jalilur Rehman. It appears that thereafter a dispute arose between the heirs of Jalilur Rehman which culminated into filing of Suit No. 491 of 1974 in this Court. This suit was decided on 10‑4‑1976 and as a result thereof the property in which the premises in suit is situated came to the share of applicant exclusively. The case of the appellant is, that although after the death of Jalilur Rehman, he was served with a notice under section 13‑A of Ordinance VI of 1959, by his legal heirs (which also included the present respondent), but subsequent to the passing of decree in the Suit No. 491 of 1974, no notice regarding exclusive transfer of property in favour of respondent was served on the appellant until 14‑2‑1977, and before this date the appellant started depositing monthly rent of the premises in Court from 17‑1‑1977 in a miscellaneous rent case and as such he could not be treated as defaulter. It is also contended by the learned counsel for the appellant that in the notice, dated 14‑2‑1977, which was served on the appellant intimating exclusive transfer of property to respondent, there was no mention of default on the part of appellant which also proved that the respondent condoned the default, if any, on the part of appellant. The learned counsel also contended that the appellant being an old tenant in the premises for the last about 30 years and there being no allegation of default against him prior to the filing of the rent case, the Rent Controller should have exercised discretion in their favour under section 13 (2) (1) of the Ordinance as the alleged default was for one month only. The learned counsel for the respondent on the other hand contended that the appellant was fully aware of the exclusive transfer of premises in favour of respondent and he also paid rent to be for sometime and as such the plea of non‑service of notice was wholly irrelevant. It is also contended that the default against the appellant has been proved in the case on his own admission and there being nothing on record to show that the said default was for reasons beyond the control of appellant, the Rent Controller could not exercise discretion in favour of the appellant. It is additionally contended by the learned counsel for the respondent that the appellant having raised a false defence before the Rent Controller and having failed to establish the same, the Rent Controller for this reason alone could have refused to exercise the discretion in favour of the appellant. After hearing the learned counsel for the parties at length, I am of the view that the appeal has no merit. The default is alleged by the respondent in her ejectment application in paragraph

4. In reply to this paragraph, respondent in his written statement alleged that they have been paying rent regularly A to the respondent but upon her refusal to accept the same, they started depositing monthly rent from September, 1976 in Court. The appellant in his written statement nowhere alleged that he was unaware of the transfer of the building, in favour of the respondent nor lie claimed any such notice. On the contrary para. one of the ejectment application, in which respondent claimed that appellant in her tenant, was admitted by the appellant in the written statement. The respondent in support of his case examined one Saeedur Rehman and her Rent Collector Moudood Ahmed Siddiqui. The appellant in cross‑examination of Rent Collector of respondent suggested that from September, 1976 the respondent had refused to accept the rent but he denied this suggestion. In his own evidence the appellant's witness Nasim Ahmed did not allege that appellant had offered rent to the respondent and she refused to accept the same but on the contrary he came out with a totally new defence. He alleged that three months rent for October, November, and December, 1976 was paid to the Rent Collector of the respondent but he did not issue any receipt for the same, and therefore, the appellant deposited the rent for these months in Miscellaneous Rent Case No. 160 of 1977 on 17‑1‑1977. This new case set up by the appellants witness in evidence was totally inconsistent with their plea in the written statement and was never put in cross‑examination to the Rent Collector of respondent when he appeared in the witness‑box. The admitted position in the case is that the appellant deposited arrears of rent in Court on 17th January, 1977, for the months of September to December, 1976. It is, therefore, quite clear that on the date the above deposit was made in Court by the appellant, default in payment of rent for the months of September and October, 1976 had already taken place. The stand taken by the appellant in its written statement to explain the default was belied by the evidence of their own witness. In these circumstances, in my view, the Rent Controller rightly ordered eviction of appellant on the ground of default. The learned counsel for the appellant has referred to the cases of Najmuddin v . Zamir Ahmed P L D 1982 Kar. 188, and Sital Das v . Haji Muhammad Saffar P L D 1984, Kar. 87, but these cases are distinguishable on facts and are of no assistance to appellant. As a result of the above discussion the appeal is dismissed but eviction application of respondent is granted both on the ground of default as well as reconstruction of the premises. There will be however, no order as to costs. The appellant is allowed 6 months time to vacate the premises subject to the condition that they shall continue :o deposit rent in Court as directed by the Rent Controller during this period. H. B. T. Appeal dismissed.