2012 PLP 1955 (CLC)

IBAD-UR-REHMAN LODHI, J.

This appeal is against the order of ejectment passed against the appellant firstly by the learned Rent Controller on 1-3-2007, and consequently the same was upheld by the learned appellate authority on 6-12-2008. The respondent-landlord filed an ejectment petition mainly on the allegation of default in payment of rent for a period from August, 2001 to December, 2001 and also that the appellant-tenant caused damage to the rented property.

2. The learned counsel for the appellant, in support of his contentions, has mainly relied upon the documentary evidence consisting of Exh.R.1 to Exh.R.11, which are receipts of rent, issued by the landlord, and tried to demonstrate that it was the usual practice of the landlord to receive the rent after intervals in lump sum. The learned counsel for the appellant is of the view that even if it was a default, the same, in no circumstance, would be considered as a "wilful default" and in fact it was a conscious attempt on the part of the landlord, who created the default for seeking ejectment of the appellant. With regard to damage caused to the property, the learned counsel for the appellant has candidly conceded that in fact it was on account of establishment of a P.C.O inside the shop for which purposes some alterations in the already existing structure were to be carried out and in his view no damage was caused on account of such change in the construction, rather it increases the value of the property.

3. Responding to the arguments of the learned counsel for the appellant, the other side has argued that no receipts of the period of alleged default have been produced and it was a wilful default: The learned counsel for the respondent further contends that tenancy started in 1993 and with the help of the documents Exh.R.1 to Exh.R.11, the appellant is showing the practice of the respondent as that of receipt of rent after considerable intervals, which covers only a negligible period of long tenancy. According to the learned counsel for the respondent, keeping in view the longstanding tenancy by merely producing eleven receipts, it would not have been established that it was a practice on the part of the landlord to accept the delayed payment of rent after considerable intervals.

4. I have considered the arguments of the learned counsel for the parties and perused the record.

5. The period of default as has been alleged is from August; 2001 to December, 2001 and notwithstanding the fact that not less than 52 documents and most of them are receipts showing deposit .of rent either directly to the landlord or through the process of deposit in the Court are placed on record but none of such receipts shows the payment of rent of the period for which default has been alleged. It is further noted that when the rent became due, in question, there seems to be no attempt on the part of the tenant to tender such rent by any substituted mode either through money order or by depositing of the same before the Court of learned Rent Controller. The landlord Amjad Ali appeared in the witness-box and he was subjected to lengthy cross-examination, but he was never confronted with the alleged practice of receiving rent periodically in lump sum after considerable gaps of time.

6. The learned counsel for the appellant has placed reliance on the case Mehrban All vs. Haji Muhammad Qasim (PLD 1976 Lahore 1052), but the same is of no avail to the appellant, as in the reported matter, there was an attempt on the part of the tenant to tender the rent with regard to disputed period through money order.

7. The learned counsel for the respondent, in support of his arguments, placed reliance on the case of Malka Begum v. Mehr Ali Hashmi (1984 SCMR 755), wherein the Hon'ble Supreme Court of Pakistan has held that the tender of rent after period prescribed by law, is not a proper tender and tenant is guilty of default though acceptance of delayed payment can mean a condonation of that default and that the defence based merely on ground of landlord receiving or collecting rent by intervals of several months is not a good defence. It is also the settled principle by the Hon'ble Supreme Court of Pakistan that a tenant is under a legal obligation to pay rent to landlord and that, landlord is not supposed to go to collect rent. The subsequent tender of rent of period has been held by the Hon'ble Supreme Court as of no avail to the tenant.

8. By placing reliance on the case. of Mahmood Ahmed v. Muhammad Nawaz Ahmed, Advocate (1984 CLC 1067), the learned counsel for the respondent is of the view that there is no proof available on the record that landlord made tenant to believe that rent was not payable and in such eventuality, the default in payment of rent is established and the learned Rent Controller has no option but to order the eviction of the tenant.

9. The wilful default in payment of rent for the period from August, 2001 to December, 2001 has been established on record and with regard to the damage to the property, there is no serious denial on 1 the part of the tenant and, therefore, the findings arrived at by the forums below are justified and call for no interference. Resultantly, this appeal fails and dismissed.

10. Since it is a commercial property and reportedly the tenant-appellant is running some business thereon, therefore, it would be appropriate that a reasonable time for vacation of the property is granted and for that purpose, four months' time is granted to the tenant-appellant to vacate the rented property and to hand over its vacant and peaceful possession to the respondent-landlord. HBT/F-32/L???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.