1995SCMR262 (PLP)

FAZAL ILAHI KHAN, J.‑‑‑The present appeal by leave of the Court is directed against the judgment of learned Lahore High Court dated 10‑3‑1993 passed in SA.O. No.6 of 1978. Respondent sought ejectment of the appellants tenants from the disputed building on the ground of default in payment of rent since 1‑10‑1972 and damage caused to the building impairing its utility. The learned Rent Controller decided both the issues against the landlord and in favour of the appellants and dismissed the petition on 17‑12‑1977. On the issue of default it was found that default was because of lump sum payment and it was not wilful default as the building was rented out to Education Institution and delay in payment of rent was due to fulfilment of certain departmental formalities as the building was used for running educational institution. The order of Rent Controller was challenged 'in appeal before the Additional District Judge, Lahore who was pleased to accept the same. The order of the Rent Controller dated 17‑2‑1972 was, therefore, set aside and the application for ejectment was allowed as prayed for vide judgment and order dated 4‑12‑1977. It may be pointed out that during the pendency of appeal before the Additional District Judge the property in question was requisitioned under section 3 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 read with West Pakistan Government Notification No. Judl‑1‑12 (10/Ol), dated 15th June, 1962 as it was deemed necessary with the direction of negotiated agreement regarding the amount of compensation payable to the owner failing which the District Judge, Lahore has to assess such compensation. The order of requisition was passed on 14th of February, 1977. The order of ejectment of the learned Additional District Judge referred to above was challenged by the appellants in SA.O. No.6 of 1978 while the order of requisition of the suit premises was challenged by the respondent/landlord in W.P. No. 2556 of 1978. Both these matters were heard and decided on the same day. The learned High Court accepted the writ petition and observed that the aforementioned school was nationalised in 1972 under Martial Law Regulation No. 118 and for that reason earlier ejectment petition had been dismissed. He, therefore, filed another ejectment petition on 16‑9‑ 1975 on similar grounds but before any order could be passed appellants through the impugned notification requisitioned it. The facts of the present case of requisition being identical, relying on the judgment in the Province of Sindh and others v. Syed Saifur Rehman etc. (1986 SCMR 1332), wherein it was held that requisition of the building which was already in possession of the Government was without lawful authority, accepted the Writ .Petition declaring the order of requisition. dated 14‑2‑1977 illegal and without lawful authority vide order dated 10‑3‑1993. Having declared the order of requisition of the building illegal and without lawful authority the contention of the learned counsel for the appellants that payment of rent in lump sum in facts of the case could not be considered to be a wilful default, was .repelled. It was found that default in payment of rent was established on the record, therefore, even if damage to the property, which is found established in the evidence, is taken out of consideration the order of ejectment passed against the respondent from the disputed property was based on sound principle. Hence on such finding the appeal was dismissed and the order of ejectment maintained. Leave was granted in this case to consider; whether, the authorities under the West Pakistan Urban Rent Restriction Ordinance, were competent to direct eviction of the appellants in view of the fact that the property in dispute had been requisitioned under the. West Pakistan Requisition of Immovable Property (Temporary Powers,) Act, in view of the judgment delivered by this Court in Civil Appeal No. 51 of 1988. We have heard the learned counsel for the appellants and perused the record. Admittedly, the property in dispute was originally rented out to a private party for running an educational institution therein. On nationalization the present education institution alongwith its building was taken over by the Government, therefore, as stated earlier, the landlord's previous application for ejectment brought on the ground of default was dismissed. In the second round of litigation when the ejectment proceedings were at the final stage the order of requisition was made. The landlord, therefore, challenged in appeal the order of the Rent Controller before the Additional District Judge who was pleased to accept the same. Consequently the appellant approached the High Court in SA.O. No. 6 of'1978 referred to above while the respondent/landlord challenged the order of requisition through Writ Petition No. 2556 of 1978., As already observed the order of requisition having been declared illegal the effect of such requisition on the ejectment proceedings, henceforth was held inconsequential. The issues requiring determination in this appeal are that of default in payment of rent and damage caused to the property, impairing its utility. It is not denied that appellants did commit default in payment of rent from time to time but the question whether such default was because of the practice of lump sum payments of the rent was not wilful entailing ejectment, was seriously agitated before the learned Additional District Judge and the learned High Court. Both the Courts below have concurrently held that the default in payment of rent on facts and circumstances of the case was wilful and that payment of rent in lump sum and its receipt by the landlord cannot, in any way, be attributed to the landlord. In Mst. Inayat Begum and others v. The Additional District and Sessions Judge and others (Civil Appeals Nos. 321 and 323 of 1988, decided on 13-12‑1988), reported in 1989 SCMR 1946, on which reliance is placed by the learned counsel for the appellants, the facts were quite different and distinguishable from the facts of the present case. In the precedent case as a question of fact it was found by the Court below that the Headmaster of the institution used to offer monthly rent to the landlord but he declined to receive it and was in the habit of receiving it in lump Sum after long intervals at his own convenience and in support of establishing such conduct had placed on file numerous receipts executed by the landlord. The landlord also used to write that the amount has been received al alhab". Their Lordships have referred to various receipts extensively in the judgment in support of the finding that there was a long‑standing practice on the part of the landlord in receiving the rent in lump sum at his convenience without any grievance. Moreso there were concurrent findings of both the Courts that the alleged default in payment of rent was regarding the period in which the property was under requisition. On such concurrent findings in the case ejectment refused by the Courts below was maintained by this Court. In the instant case both the Courts below have concurrently held that there was no evidence of long‑standing practice of receipt of rent by the landlord in lump sum at his convenience, therefore, no exception could be taken to the findings that the tenant defaulted in payment of rent. The authority relied upon by the learned counsel is, therefore, not applicable to the present case. For the reason we find no infirmity in appraisal of evidence by the learned High Court in maintaining the order of eviction passed by the learned Additional District Judge and it requires no interference. Consequently the appeal is dismissed. The appellants are, however, allowed four months period for handing over vacant possession of the disputed property to the landlord. Parties are left to bear their own costs. AA./P‑246/ S Appeal dismissed.