P L D 1963 (W (PLP)

The applicant filed an application under section 18 of the Act on the 7th April 1961, on the ground that the opposite‑party had failed to pay the arrears of rent. The opponent in his written statement contended that he had paid the rent by cash and adjust ment of amount spent on repairs, cost of two drums for water pumping and payment of salary of pump man towards rent. It may be stated that the opposite‑party in his written statement did not express his willingness and readiness to pay rent in case the Court found that he was in arrears of rent. He however stated in his statement before the Court that he was ready and willing to pay the rent in case the Court found that he was in arrears of rent. The learned Small Causes Court Judge framed the following issue for determination :‑ "Whether the opponent was in arrears of rent, which he was ready and willing to pay to the applicant? " The learned Judge came to the conclusion that the opposite‑party was not entitled to claim any amount for repairs and other items mentioned in his written statement. He further found that the opposite‑party was in arrears of rent and lastly that as the opposite‑party was ready and willing to pay the arrears up‑to‑date he‑would dismiss the application for ejectment.

2. In order to consider the contention of the learned Advo cates for the parties it would be useful to reproduce the finding of the learned Judge in respect of the readiness and willingness of the opponent to pay the arrears of rent. It runs as under "I find that the relation between the parties had become strained for sometime past with the result that there were crimi nal litigations between them. The opponent has stated that he was and is willing to pay all the arrears of rent to the applicant. It seems that the applicant does not want to recover rent but to eject the opponent because of the strained relations. I find that this is not a case in which the opponent should be ejected as he is willing to pay the arrears up‑to‑date. I therefore reject this application and make no order as to costs."

3. The learned Small Causes Court Judge has apparently relied on subsection (1) of section 10 of the Rent Restriction Act VII of 1953. The relevant provision runs as under:‑ "Save as hereinafter provided, no order for the recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent pay able; under this act and performs the other conditions of the tenancy." I consider that readiness is distinguishable from willingness. Mere: expression of wish to pay the arrears of rent is not sufficient. The tenant must be ready to pay. By readiness is meant some , overt act namely producing the arrears of rent in Court or depo siting the same. Mr. Moulvi, the learned Advocate for the opponent, however, relied upon a Division Bench ruling of this Court in the case of Dawood & Co. v. Muhammad Iqbal (P L D 1962 Kar. 368). The relevant passage on which he relies runs as under :‑ "The words "pays or is ready and willing to pay" refer, in our opinion, to the date when the Court is called upon to pass an order for recovery of possession and do not refer to any anterior period and, hence, if at that time the tenant pays the rent due from him, or is ready and willing to pay it the Court cannot pass an order for his eviction." Mr. Riazul Hassan contended that the readiness referred to in the above observation relates to the time when the Small Causes Court Judge was going to decide the application under section 18 of the Act. The tenant could not 'know as to what order the Court was going to pass and therefore it is contended that in order to safeguard his interest the tenant should have deposited the arrears of rent according to the provisions of the Rent Restriction Act. On the other hand, it was contended by Mr. Moulvi, the learned Advocate for the opposite‑party, that the Small Causes Court Judge had dismissed the application under section 18 of the Act and therefore it is this Court which is called upon "to pass an order for recovery of possession" and his client is willing and ready to deposit the arrears of rent if this Court allows time. I think the Small Causes Court Judge was as much called upon to pass an order for recovery of possession as this Court. The tenant could not anticipate the decision either of lower Court or of this Court. He had, therefore, to show not only his willingness but also his readiness before the lower Court. The tenant showed only his willingness but not his readiness. Even if I accept the conten tion of Mr. Moulvi for the decision of this case, the question is whether the opposite‑party can be said to be ready and willing to pay the arrears of rent. Mr. Moulvi asked for time to deposit the money. I refused his request for adjournment to enable the opponent to deposit the arrears of rent. This Revision Application was filed on the 25th September 1961. It was admit ted on 6th November 1961. It is now about a year since this matter has been pending in this Court. The opponent knew that he was in arrears of rent. He should have, in order to take advantage of the observations made by this Court in the case of Haji Dawoad & Company, deposited the money immediately after he received notice of the admission of this case. The notice of this Revision Application was served on the opposite‑party on 14‑12‑1961.

4. The law gives a right to the landlord to eject his tenant in case of failure to pay rent. On the other hard, a tenant has been given protection by sub‑clause (1) of section 10 of Act 8 of 1953 that even if he is in arrears of rent but if he is ready and willing to pay the arrears of rent he would not be ejected. In case the opponent does not take advantage of the protection the law has given him it is he who is to be blamed. Moreover, in the 1 circumstances of the present case when the landlord and the tenant are admittedly at loggerheads and criminal proceedings are going on between them it is in the interest of both the parties that they separate. I cannot show any indulgence in the circumstances of this case by adjourning the case to any other date. This will be giving undue advantage to the tenant over the landlord.

5. I would, for the reasons given above, set aside the order passed by the Small Causes Court Judge on the 12th August 1961 and order that the opponent should be ejected as the ingredients of section 18 have been made out. It has not been contended before me that the applicant has failed to prove any of the ingre dients of section 18 of the Act. K. M. A./A. H. Petition accepted.