1993 PLP 2215 (MLD)

2. After the remand of the case, written statement on behalf of the appellant was filed, wherein it was pleaded that "A.R. Umer" is a partnership firm, one of its partner happened to be Umer and therefore the description of the tenant was misdeclared in the application itself by the respondent and the application was not maintainable.

3. It was next averred that the appellant paid the rent up to January, 1978. Thereafter the respondent refused to accept the rent for the following month and the appellant remitted the rent for the months of February, March, April, May and June 1978, on 21st May, 1978 through money order which was returned with an endorsement that the addressee is not available at his residence. On 1‑7‑78 the appellant filed Miscellaneous Rent Application and started depositing rent in that application. On the basis of such grounds a case was set up that the appellant did not commit any default in payment of rent.

4. The Rent Controller on the basis of the pleadings of the parties, formulated the following three points: (1) Whether the premises was rented out to opponent A.R.Umer as a partnership firm? (2) Whether the opponent has committed wilful default in payment of rent? (3) What should the order be? '

5. On appraisal of the evidence led by the parties, the Rent Controller concluded that the first point was not proved and decided the second point in affirmative and as its result, allowed the ejectment application by his judgment passed on 30‑5‑1988. It is against this judgment that the present appeal has been filed.

6. Mr. Ali Akber, Advocate mainly contended that on the facts of the present case, default in payment of rent was committed for one month, February, 1978 only and the appellant had tendered the rent for that month by money order on 21‑5‑1978. According to him default in payment of rent if at all committed is only for about 20 days, which deserved to be condoned by the Rent Controller, as default was not wilful and of technical nature. In support of such contentions he referred to cases reported in 1986 SCMR 441, 1980 SCMR 834, PLD 1990 SC 389, 1986 CLC 1758 and 1983 CLC 339.

7. Mr. Azher A. Siddiqui, Advocate for the respondent contends that the appellant had been a wilful defaulter, in the past as well. He referred to receipt (page 127 of the record) produced by the appellant indicating payment of rent for five months prior to February, 1978 which by itself proves that he has been a persistent defaulter in payment of rent. He further pointed out that there is no evidence on record which could justify condoning the lapse in payment of rent in time to avoid eviction from the premises.

8. Admittedly the default in payment of rent has been committed for the month of February, 1978 and the appellant for the first time tendered rent by money order on 21st May, 1978, i.e. after about 3 month. Had he been vigilant in payment of rent he would have promptly remitted it to the landlord and he could have shown that' he was not a wilful defaulter. This remittance is not only tendered late but is also beyond statutory period permitted by section 15 of the Sindh Rented Premises Ordinance, 1979 and section 13 of West Pakistan Rent Restriction Ordinance, 1959. Nothing has been pointed out by Mr. M. Akber, which could entitle the appellant for the exercise of discretion by the Rent Controller or the appellate Court to condone delay in payment of rent. The cases referred by appellant are on the facts materially different from the facts of the present case, as in these cases justification was shown for delayed remittance of, payment of rent. Not only that, he took further time to file Miscellaneous Rent Application and he actually deposited rent on 8th July, 1978 in that case. For reasons mentioned above, I find no merit in this appeal, which is dismissed. H.B.T./A‑1364/K??????????????????????????????????????????????????????????????????? Appeal dismissed.