1975 PLP 283 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑,‑‑Muhammad Hussain, the predecessor. in‑interest of the petitioners herein was admittedly a tenant of Saidullah Khan, the predecessor‑in‑interest of the respondents in respect of a business premises in Mardan. There was a dispute as regards the stipulated rent, which according to Muhammad Hussain was Rs. 47.50 per mensem but double of this amount i.e. Rs. 90 per mensem according to Saidullah Khan. It is common ground, however, that Muhammad Hussain himself had been paying at the rate of Rs. 47.50 per mensem till his death in September, 1970 and thereafter his successors‑in‑interest, the present petitioners had also been paying at the same rate. The explanation of Saidullah Khan who died in January 1972, for the acceptance of the rent at half the stipulated rate was that Muhammad Hussain had made certain advance payment and it was on account of its monthly adjustment that a shorter amount was accepted by him.

2. Saidullah Khan applied to the Rent Controller seeking ejectment of Muhammad Hussain on ground of non‑payment of rent. These proceed ings were continued by the legal representatives of the parties who were brought on the record after their death. It appears that the precise amount of the rent stipulated was not seriously challenged by the petitioners of no issue was framed in this regard. Even before us, learned counsel for the petitioner had to concede that the rent was Rs. 95 p.m. The learned Rent Controller finding that the petitioners had defaulted in payment of rent and were not entitled to any improvements as claimed by them ordered their ejectment. Having failed before the lower appellate authority, they moved a second appeal before the High Court which was dismissed in limine, vide order, dated 19‑6‑1974, which is the subject‑matter of the present petition for leave to appeal.

3. In support of the petition, learned counsel contended before us that the landlord having himself continually accepted a shorter amount contributed to the default which could not be characterised as wilful and further that the Courts below had ignored the amendment of Section 13 of the West Pakistan Ordinance Vi of 1959 introduced by the West Pakistan Urban Rent Restriction (North‑West Frontier Province Amendment) Act of 1972, whereby a second proviso was added to sub section (2) of section 13 making it incumbent on the Rent Controller to reject the application of the landlord in case the tenant admitted on the first date of hearing his liability to pay the rent due from him being the first default on his part and deposited the arrears on the date fixed by the Rent Controller.

4. The contentions have no force. We have already referred to the landlord's explanation of the acceptance of Rs. 47.50 instead of Rs. 95 p.m.A on ground of adjustment of a previous advance made to the tenant. The landlord could not be allowed to suffer on account of an honest deal of adjustment. The second ground was not taken by the petitioners before the lower appellate authority for the obvious reason that they were prepared to admit their liability or make payment of arrears. The contentions are, therefore, overruled. No justification is made out for the interference of this Court. The petition is accordingly dismissed. Petition dismissed.