1989 PLP 912 (CLC)

‑‑‑5. 15(2)(ii)‑‑Ejectment application‑‑Maintainability of Ejectment application on ground of default in payment of rent though was filed before expiry of mandatory period of 60 days from date on which rent fell due, yet tenant after filing of case did not pay rent even long after expiry of statutory period‑‑Held, application was maintain able and even if after withdrawal of the application same was to be refiled after expiry of statutory period, result could not be different. Syed Shin Gul v. Haji Abdul Majid P L D 1968 Quetta 45; Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339 and Syed Ashraf Ali v. Ali Muhammad Khan 1986 CLC 735 ref . (b) Sind Rented Premises Ordinance (RVII of 1979)‑‑ ‑‑‑S. 15(2)(ii)‑‑Default in payment of rent‑‑Proof‑‑Default in payment of rent on part of tenant having fully been established,, subsequent remittance of rent, held, would not save tenant from consequences which would flow from such default. Pakistan Institute of International Affairs, Karachi v. Abbas Ahmed Khan 1986 CLC 1770; Syed Ashraf Ali v. Ali Muhammad 1986 CLC 735 and Rehmat Khan v. Khuda Bux 1986 CLC 693 ref. S. Yousuf Ali for Appellant. Sadiq for Respondent. Date of hearing: 22nd January, 1989. By this appeal the appellant has challenged the orders passed by the Rent Controller, allowing the respondent's application for ejectment on the ground of default in payment of rent. The facts of the case are that the present rent application which was dated 21‑7‑1980 was actually filed in Court on 21‑8‑1980 by the present respondent. The respondent /landlord sought for ejectment of the appellant /tenant on the ground that he had defaulted in payment of rent since the month of May, 1980. The respondent/ landlord filed his written objections. The rate of rent was not denied. However the plea taken by the appellant/tenant is that he had paid the rent up to the month of May, 1980. He has further averred that the practice of the landlord was that he used to collect the rent every month but would issue the receipts for consolidated periods for several months. That the respondent in support of his case filed affidavit of one Suleman, his Rent Collector while the appellant filed his own affidavit and an affidavit of one Abdul Saleem. He has also filed the photostat copies of the four rent receipts and money‑order coupon. The Rent Controller holding that the default had been committed except for the month of May, 1980, directed the ejectment of the appellant. I have heard the learned counsel for the parties. Mr. S. Yousuf Ali learned counsel for the appellant /tenant has argued that the rent application in which the default of three months only is claimed was not maintainable as the same was filed before the expiry of mandatory period of 60 days from the date on which the rent fell A due as according to him the Rent Controller has held that there was no default for the month of May, 1980 and thus the application for ejectment on ground of default in payment of rent for the month of June,1980 can be filed only after 31‑8=1980 whereas the present application was filed earlier. In support of his contention he has placed reliance on the case of Syed Shin Gul v. Haji Abdul Majid PLD 1968 Quetta

45. Repelling the above arguments Mr. Mohammad Sadiq learned counsel for the respondent has argued that even after filing of the present case the appellant did not pay rent till January. 1981 when he sent the same by money‑order. He has further contended that in such circumstances this bar would not be applicable. His contention is that in such case even if he withdrew the present application and refiled the same after expiry of the said period of s(1 days the result could not be different. He has placed reliance on the case of Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339 and the case of Syed Ashraf Ali v. Ali Muhammad Khan 1986 CLC

735. In the first case the Hon'ble Supreme Court has held: "We do not agree with the learned y counsel. It was held in the case of Mst. Amina Begum and others that the forums acting under the Rent Restriction law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as "to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceeding" It was also observed that compelling the applicant‑landlord to a withdraw ejectment petition which had already been tried, merely on the technical ground of the cause of action not having matured at the time it was filed so that it may be filed again. would not advance the interest of justice as "results on merits" were not likely to be different. Learned counsel has not satisfied us that if the ejectment petition was withdrawn and refiled, the results on merits would have been different. The cases of Abdur Rashid and Muhammad Shafi cited by the learned counsel, in view of the dictum in Mst. Amina Begum's case are of no help to the petitioners. There is no force in the argument advanced by the learned counsel in support of his petition. It fails and is accordingly dismissed." In the second case my learned brother Saeed-uz-zaman Siddiqui, J. has held: "However, the learned counsel for the appellant very vehemently contended that as the application for eviction was pre‑mature, the learned Rent Controller should have dismissed the same. This argument is now of only academic nature. Even if it is assumed, that on the date the application for eviction was filed, 60 days period as contemplated under section 13(2)(1) of Ordinance VI of 1959 had not expired, it is an admitted position that within the statutory period of 60 days no rent was tendered by the tenant. On the contrary the position on the record is un controverted that from February, 1976 until the order was passed in the rent case in 1978 the tenant did not even once tender or pay rent to the landlord. The first suit for recovery of rent was instituted by the landlord in the Court in November, 1975 and thereafter proceedings for recovery of arrears of rent were instituted in July, 1976, February, 1977, October, 1977 and January, 1978 but during all this period the tenant no rent in respect of premises in his occupation. Apart from it in the case of Raj Muhammad v. Muhammad Zareen 1980 SCMR 339 the Supreme Court observed that if a petition presented to a Rent Controller was pre‑mature on the date of its institution but the result would not have been different if the landlord would have withdrawn and refiled the same petition, the order of ejectment passed by the Courts below could not be interfered on that ground." I am inclined to follow the principle laid down in above‑said two l cases and hold that the rent application filed by the respondent was B maintainable. Mr. Yousuf Ali learned counsel for the appellant has submitted that the respondent /landlord has not filed his own affidavit but an affidavit of one Suleman has been filed on his behalf on 3‑11‑1981 whereas the power of attorney was executed in his favour on 3‑1‑1983 and, therefore, he was not the person authorised to give the evidence. Suffice it to say that the appellant in the very opening line in his cross‑examination has admitted that this Suleman is the rent collector of the applicant. Mr. Muhammad Sadiq learned counsel for the respondent has argued that the rent collector is the best witness who can give evidence in regard to the claim of default as he is the person fully conversant with the affairs of the rented property. He has placed reliance on the case of Pakistan Institute of International Affairs, Karachi v. Abbas Ahmed Khan 1986 CLC 1770. The learned counsel for the appellant has then advanced the plea that the practice of the landlord was that he used to collect the rent every month but issued the receipts for the consolidated period of several months and that this fact was corroborated by his witness Abdul Saleem. His further contention is that the said Abdul Saleem was not cross‑examined by the respondent and, therefore, his evidence not only goes unrebutted but corroborates the appellant's contention. It may be pointed out that the present appellant filed his affidavit‑in evidence on 26‑1‑1985 while the affidavit of the said Abdul Saleem was filed on 2‑2‑1985. It will also be pertinent to note that the appellant was cross‑examined on 24‑10‑1985 and after his cross examination he closed his side. Such endorsement is made at the bottom of cross‑examination of the appellant. The case diary of the Rent Case No.5223 of 1980 before the Rent Controller does not make any mention of the presence of this witness in Court on the said date or on any other date thereafter. The diary of 24‑10‑1985 reads "Parties' Advocates are present". The opponent cross‑examined and closed his side. Put off to 14‑11‑1985 for final arguments. This witness Abdul Saleem was not produced for cross‑examination and, therefore, his affidavit‑in‑evidence cannot be taken into consideration. At the instance of the learned counsel for the appellant I have examined the affidavit of the said Abdul Saleem and am of the view that this affidavit is quite vague and does not in any manner help the case of the appellant as the said witness is the brother‑in‑‑law of the appellant and all that he says in paragraph 2 of the affidavit is "that during the year 1980 after April. 1980 he paid rent to the rent collector of the applicant in my presence, but the applicant did not issue receipts and said that the same will be sent later on". This by no means does establish the practice as alleged nor even mention‑‑that‑month,_ for_ which or during which the said rent was paid. I have given my earnest consideration to the facts of the above case and I have come to the conclusion that the appellant was in default of payment of rent as the same had matured during the pendency of the rent application. The subsequent remittance of rent through money order in January, 1981 as claimed would not save the appellant from the consequence which flows from this failure in making the payment of rent as and when fell due. It is what has been held by this Court in the above‑said case of Syed Ashraf Ali v. Ali Muhammad 1986 CLC 735 and also in the case of Rehmat Khan v. Khuda Bux 1986 CLC

693. The upshot of the above discussion is that this appeal has no merits and the same is dismissed with costs. The appellant is allowed a period of 60 days to vacate the premises in dispute from the date of this order. H . B . T . / M‑683/ K Appeal dismissed.