1989 PLP 673 (CLC)

‑‑‑S.15‑‑Default‑‑Whether willful or not‑‑ Determination‑‑‑ Ejectment orders passed against tenant on ground of default in payment of rent‑‑Contentions that there was default of only one day at the time of presenting application for ejectment, that appellants had remitted rent in dispute before receiving notice of ejectment application, therefore, default was not willful, repelled. (b) Sind Rented Premises Ordinance (RVII of 1979)‑‑ ‑‑‑S.15‑‑Payment of rent after filing ejectment application‑‑Effect‑ Default in payment of rent having once been committed, such default cannot be wiped out or erased by subsequent payment of rent-Effect of default so committed also would not cease to subsist simply because service of notices of eviction application had been effected upon tenants after their having remitted the rent by money order‑‑Tenants having remitted rent after ejectment application having been filed, by money order 7‑8 months after their becoming due, held, were willful defaulters and were not entitled to discretionary relief by High Court. 987 CLC 76; 1984 CLC 969; Rehmat Khan v. Khuda Bux 1986 CLC 693, Syed Ashraf Ali v. Ali Muhammad Khan 1986 CLC 735 and Mst. Amina Begum and others v. Mahar Ghulam Dastgir PLD 1978 SC 220 ref. 1986 CLC 1770 rel. Abdur Wajid Wyne for Appellant. Muhammad Sadiq for Respondent. Dates of hearing: 31st October and 3rd November, 1988. I would for the sake of convenience propose to decide these two appeals by this single order, which have been separately filed by two tenants, as the facts involved are identical and the contents of ‑the impugned orders of the learned Rent Controller are also similar, save to the extent of the tenements and the rate of rent. The respondent is the landlord in both the appeals. Lal Muhammad, appellant in FRA 328 of 1986 is the tenant of the respondent in respect of Flat No.13, Block 1, R.C. 11/21/2, Fatia Kashiram Street, Ranchore Lines, Karachi, on monthly rent of Rs.66.78 p.m. Muhammad Shakil Ahmad, the appellant in FRA 329 of 1986 is the tenant in respect of Flat No.110 of the aforesaid building. He is the tenant on a monthly rent of Rs.17 only. On 10‑9‑1980 the respondent filed ejectment applications under section 15 of the Sind Rented Premises Ordinance, 1979 against both the appellants for their eviction from their respective flats on the ground of default in payment of rent for the period commencing from May, 1980 upto the filing of the applications. In the case of Lal Muhammad, the arrears were claimed in the sum of Rs.200.34, whereas in the case of Muhammad Shakil Ahmed, he was stated to be in arrears of a sum of Rs.51 only. The appellants filed their written statement in denial of the respondent's case. It was pleaded by them that the rent of May, 1980 had been paid to the respondent for which the rent receipts in each case were duly issued. They had also afterwards paid the rent through Money Orders and hence they were not in default. In support of the respective pleas made against the appellants the respondent filed the affidavit of Suleman son of Abdullah, his ref t collector, whereas both the appellants filed their own affidavit‑in‑evidence. Out of the pleadings of the parties, the learned Rent Controller formulated only one point for determination, namely, whether the appellants had committed default in payment of rent. He answered this point in the affirmative in both the cases and consequently, allowed the ejectment applications by ordering the eviction of the appellants from their respective demised premises and directing them to hand over vacant possession of the premises in question to the respondent within one month from the date of order viz. 24‑9‑1986. Hence these appeals at the instance of the tenants. I have heard Mr. Abdul Wajid Wyne, learned counsel for the appellants and Mr. Muhammad Sadiq, the learned counsel for the respondent. I have also with their assistance perused the evidence brought on record by the parties. It is contended by Mr. Abdul Wajid Wyne that admittedly the payment of rent for the month of May, 1980 in both the cases had been duly made to the respondent and the receipts in respect thereof have been duly presented. It was not disputed by Mr. Muhammad Sadiq as well. Mr. Abdul Wajid Wyne then contended that the rent of June, 1980 was payable by 30th of August, 1980, whereas the application for eviction was filed against the appellants on 1‑9‑1980 and hence there was a default of only one day at the time of presenting the application for ejectment of the appellants. He then contended that as a matter of fact, the rent for 6 months ending on 30th November, 1980 had also been remitted by the appellants to the respondent before they were served with the notice of the ejectment applications. They were, therefore, not to be treated as willful defaulter. He also agitated against the non‑appearance of the respondent /landlord himself and instead examining his rent collector, who in his submission was not a competent witness. He also urged that no specific allegation about the default and the period of default has been mentioned in the applications for ejectment as well as in the affidavit‑in‑evidence filed by the rent collector of the respondent in both the cases. Lastly. he submitted that it is a fit case wherein the learned Rent Controller, should have preferred to exercise his discretion in favour of the appellants. In support of his contention, Mr. Abdul Wajid Wyne placed reliance on two decisions of this Court reported as 1987 CLC 76 and 1987 CLC

442. Mr. Muhammad Sadiq, learned counsel for the respondent, on the other hand, supported the impugned orders. He vehemently urged that the remittance of rent by Money Order by the appellants, during the pendency of the applications, did not erase the effect of the default. In his submissions, as a matter of fact, the appellants were in default of seven months' rent at the time when they remitted the rent by Money Order. He also urged that the period of default for the months subsequent to the filing of the applications was also to be taken into consideration, while considering the applications for eviction as held by this Court in the cases reported in 1986 CLC 693 and 735 and also in 1984 CLC

969. Lastly, the learned counsel placed reliance on another decision of this Court reported in 1986 CLC 1770 wherein it is held as under:‑ I am of the view that a default in the payment of rent as contemplated by section 13(2)(i) of the repealed Ordinance or section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 having once been committed, such default cannot be wiped out or erased by subsequent payment of rent. Nor can the penalty of eviction that has been incurred by reason of such default be stayed off by subsequent payment of rent. Therefore, the contention is misconceived." I have given my earnest consideration to the submissions made by the learned counsel for the parties. Admittedly, the appellants were in default in payment of rent for the month of June, 1980 at the time when the applications were filed. However, their remittance of rent for subsequent months on 6th of January, 1981 (as claimed by Mr. Abdul Wajid Wyne) and or on 21‑2‑1981 (as stated by Mr. Muhammad Sadiq), would not save them of the consequences that flowed from their failure in making the payment 'of rent as and when it had fallen due for payment. It is what has been held by this Court in the case of Rehmat Khan v. Khuda Bux 1986 CLC 693 and in the case of Syed Ashraf Ali v. Ali Muhammad Khan 1986 CLC

735. In the first abovenoted case the application for eviction of the tenant had been filed before the expiry of 60 days of the period for which the default had been committed. Relying upon the two decisions of Supreme Court in the cases of 1) Raj Muhammad v. Haji Muhammad 1980 SCMR 339 and (2) Mst. Amina Begum and others v. Mahar Ghulam Dastgir PLD 1978 SC 220 the Court repelled the said contention as being of no force, in view of the fact that the cause of action on the ground of default had matured during the pendency of the application. Likewise in the second noted above case the cause of action on default had matured subsequent to the filing of the ejectment application. It was in that context that the above‑referred decisions were pronounced by this Court. Lastly, it is a well‑settled principle of law enunciated by large number of authorities that the default in payment of rent for the period subsequent to the filing of the application is also to be taken into consideration, while passing an order on the application for eviction. The contention of the learned counsel for the appellant to the effect that there was only a default of one day in payment of rent when the application was presented, is also misconceived inasmuch as the rent was, for the first time, as per evidence available on record, remitted on 6‑1‑1981 and hence it was a case of default of several months. The effect of default so committed did not cease to subsist simply because the service of notices of the eviction applications had been effected upon the appellants after their having remitted he rent by Money Order. The contention of the learned counsel for the appellants that Suleman son of Abdullah, the Rent Collector was not a competent witness is, ex facie, untenable and it is accordingly repelled. The respondent's witness Suleman has candidly deposed that he, being an employee of the respondent, was deputed to collect the rent and was fully conversant with the facts of the case. Before parting with the case I may also refer to a decision of this Court cited by the learned counsel for the appellants reported in 1987 CLC

442. In that case the tenant had offered the rent to landlord's rent collector before the filing of the ejectment application, but he had declined to accept the same. Even earlier than that a request had been made in writing to that effect. It was in appreciation of that fact that the Court held that it was not a case of wilful default and hence the Rent Controller was not justified in ordering the eviction of the tenant. In yet another case reported in 1987 CLC 76 it was held by this Court that where no case of wilful default in payment of rent was established against the tenant, the High Court may, in exercise of Appellate jurisdiction, set aside the order of eviction passed by the Rent Controller. However, since on the facts of the instant cases I have already reached the conclusion that the appellants were wilful defaulters in payment of rent, they are not entitled to any discretionary relief by this Court. At this stage Mr. Abdul Wajid B Wyne, the learned counsel for the appellants prayed that the appellants may be allowed six months' time to vacate the premises. The learned counsel for the respondent agreed to the allowance of the said period. They are, therefore, hereby with the consent of the respondent's learned counsel, allowed six months' time to vacate their respective premises and hand over the vacant and peaceful possession thereof to the respondent, subject to the payment of the admitted monthly rent to the respondent, as per tentative rent order of the Rent Controller. If any default is committed by any or both of the appellants in this behalf he or they, as the case may be, shall be liable to be evicted forthwith without notice. The parties are left to bear their own costs. M.Z.S./L‑25/K Appeal dismissed.