1987 PLP 1575 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The premises in dispute in this case consists of tenement No.G‑111 which forms part of a larger property bearing No.1.R.8/8‑P, Lawrence Road, Karachi, which was purchased in a public auction by the respondent from the settlement department. The P.T.O. and the P.T.D. in respect of this property were issued in the name of the respondent on 15th June, 1961 and 16th April, 1978 respectively.

2. The respondent filed an ejectment application in 1962 against the petitioner on the ground of non‑payment of rent but the same was dismissed by the Rent Controller for want of statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Thereafter, notice under section 30 was served by the respondent upon the petitioner demanding the arrears of rent but the petitioner disputed the title of the respondent on the ground that the disputed tenement No.G‑1/1 was mistakenly included in the transfer documents of the respondent. Apparently as the rent was not tendered during the statutory period the respondent filed a fresh ejectment application. The petitioner contested the prayer for his ejectment by denying the relationship of landlord and tenant between the parties. Separately the petitioner commenced proceeding before the Settlement Authorities challenging the inclusion of the disputed premises as a part of the property transferred to the respondent. His application was, however, not entertained by the Additional Settlement Commissioner, Karachi, on the ground that the property was transferred as an industrial concern. The proceedings 'between the parties continued simultaneously under the rent laws as well as under the settlement laws as regards entitlement. An order dated 27th October, 1965, was passed in favour of the petitioner by the Additional Settlement Commissioner (Industries), Lahore, holding that the disputed tenement was excluded from the property auctioned in favour of the respondent and it was directed that the P.T.D. be withdrawn. On an appeal by the respondent, however, the Settlement Commissioner vide order dated 6th August, 1966 restored the disputed tenement as a part of the property transferred to the respondent.

3. The petitioner being aggrieved by the aforesaid order filed a constitutional petition in the High Court. This constitutional petition was dismissed by order dated 15th April, 1971 and petitioner's L.P.A. was also dismissed on 15th December, 1977. Thereafter, the petitioner came up before this Court and leave to appeal was granted but the appeal was eventually dismissed by the judgment of this Court dated 10th September, 1986 (Civil Appeal No.1ll‑K/1980). With this judgment the title of the respondent in respect of the disputed premises is finally affirmed in his favour.

4. Reverting now to the proceedings under the rent laws, it may be stated that the Rent Controller held that the petitioner was not the tenant of the respondent and dismissed the ejectment application by his order dated 1st September, 1965. On appeal by the respondent the case was remanded to the Rent Controller for fresh decision. On remand the preliminary issue was not pressed by the petitioner as he admitted that the respondent was the transferee of the disputed premises. The learned Rent Controller on trying the case on merits passed orders dated 31st May, 1981, directing the petitioner to vacate the premises. Against this order the petitioner filed appeal which was dismissed by a learned Single Judge of the Sind High Court by judgment dated 4th August, 1986. Hence this petition.

5. Before us the learned counsel appearing for the petitioner has very fairly conceded that the petitioner had failed to pay rent as required by him in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but he submitted that he would mainly press this petition for exercise of discretion in favour of the petitioner to relieve him of the consequence of default in the payment of rent. In this connection he submitted that the entitlement for transfer of the property was in dispute between the parties all along until the decision of the appeal by this Court, which fact is sufficient to exonerate the petitioner from ejectment. It has not been shown to us that this aspect of the case was considered by any of the courts below. On perusal of the judgment of the High Court we feel that the petitioner was rightly held to be a wilful defaulter and had shown no kenness to pay rent, although it is well‑settled that the mere fact that a dispute was going on between the parties in the Settlement Department is no ground to condone the dafault made by the tenant. The learned Judge rightly relied upon this proposition on the authority of this Court in Muhammad Hussain v. Amatul Batul (1970 SCMR 286). Once it is held that the petitioner is a wilful defaulter there is no room for considering the exercise of discretion in his favour. After hearing the learned counsel for the petitioner we are satisfied that the order of ejectment passed against the petitioner proceeds on sound .reasoning and calls for no interference. This petition is accordingly dismissed. S.Q./K‑20/S Petition dismissed.