2004 PLP 1963 (CLC)

4. I have carefully considered the contentions put forth by the parties' learned counsel in the light of available record and have also gone through the impugned orders and relevant provisions of law. It may be seen that under section 13(2) of the Ordinance. 1959 added by Ordinance VIII of 1985 where the application made by the landlord is on the ground of default and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on a previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made Rent Controller shall make an order rejecting the application. The learned counsel for the appellant contended that the default being not a first default was not condonable in the light of the added provision of law and in order to substantiate his contention he referred to the earlier litigation where eviction application filed by the appellant against the respondent was disposed of by this Court with consent order in the following terms:-- "Statement of Tenants The tenants in above appeal are ready and prepared to pay the monthly rent to Mst. Shah Pari wife of Muhammad Shafi, as provided for under the law. 23-9-1998 (Sd.) Counsel for appellant. The tenants shall pay the rent of the premises to the landlady Shah Pari on every 15th of succeeding month. However, the tenants shall start paying rent from 23-9-1998. Property taxes shall be paid by her. She will open account in A.B. L., Tola Ram Road Branch, Quetta, where the tenants shall deposit monthly rent. In view of the compromise the eviction applications are not pressed. (Sd.) Counsel for respondents. The application is opposed as the privity of relationship is with the appellant." Attornies of tenants (Sd.) Counsel for Appellant. Muhammad Shafi. (Sd.) Khan Muhan4mad son of (Sd.) Counsel for appellant Malik Dost Muhammad tenants. (Sd.) Haji Said Muhammad son of Abdul Ghafoor" The said order was challenged by Muhammad Shafi husband of the appellant before the Honourable Apex Curt which was also disposed of as follows:-- "We convert the above petitions into appeals and dispose of as follows:-- Without prejudice to the contentions the right of the parties to the pending suit, till the suit is disposed of, the respondent No. 1 will get 60% of rent and the rest 40% of rent will be distributed between the four daughters. The amount will be paid after deduction of all taxes and outgoings. The learned trial Court is directed to expedite the disposal of the suit." It may be seen that though in that eviction application appeal has alleged default committed by the respondents but at the time of disposal of appeal before this Court a consent order was passed wherein the respondents undertook to pay or tender rent to the appellant w.e.f. 23rd August, 1998. In that proceedings no finding regarding default were given either by the Rent Controller or by this Court. Even respondents were not asked to pay the outstanding rent as alleged in the earlier eviction application, rather they were allowed to pay rent to the appellant from the date on which compromise was reached at between the parties i.e. 23-9-1998. In the instant eviction application the appellant has alleged default from October, 1998. Under such circumstances it could not be said that the respondents have committed default on a previous occasion, as such; they were not entitled to the benefit of proviso to section 13(2) of Ordinance, 1959. Furthermore; the appellant in his eviction application has not alleged that the respondents have also committed default on previous occasion, as such; were liable to be evicted under the provisions of Ordinance, 1959 and not entitled to the provisions pertaining to condonation of default. Even in rejoinder to the application filed by the respondent for rejection of eviction application and review of the earlier order whereby the parties were asked to lead evidence the appellant has not alleged previous default on the part of respondents. Under such circumstances learned Rent Controller rightly exercised his jurisdiction by invoking provisions of section 13(2) of Ordinance, 1959 by condoning the default which was first default and the respondents have already deposited the due rent in Court's account before filing written statement. For the foregoing reasons I find no merits in the instant appeals which are dismissed accordingly. S.A.K./31/Q Appeals dismissed.