1980 PLP 1167 (CLC)

Sahibzada Nasir Ali for Appellant. Islam Ali Qureshi for Respondent. Date of hearing 10th October, 1979. This second appeal has been filed by one Abdul Wahid against an order of his ejectment from a shop owned by the respondent Muhammad Yasin.

2. The appellant's eviction was ordered by a Rent Controller on the ground of default and personal need, and his order has been confirmed by has, the edge while dismissing the first appeal of the appellant. He has therefore come up in second appeal to this Court.

3. The respondent rested out the shop in dispute to the appellant by means of rent deed, Exh. A/1 for a fixed period of 11 months commencing from 1st February, 1976 arid ending with 31st December, 1976. The rate of rent agreed to be paid was Rs. 400 per mensem. The rent for first six months at mounting to Rs. 2,400 was paid in advance at the time of the execution of the rent deed. As for rent for the remaining five months it was stipulated in the said deed that it shall be paid in advance. According to the respondent, rent for the said period of five months amounting to Rs. 2,000 was to be paid, in lump sum, before the 1st of August, 1976, but it was not so paid. It was, therefore, urged by him that the appellant had committed default it the payment of rent. As regards the plea of personal need he averred that the shop in dispute was required by the respondent for his own occupation. As indicated above, the contentions of the respondent found favour both with the learned Rent Controller as well as with the learned District Judge.

4. Assailing the finding of the two tribunals below on the issue of default, learned counsel for the appellant contended that despite the fact that according to the stipulation in the rent deed the amount of Rs. 2,000 was to be paid by the appellant to the respondent in lump sum and in advance but it was not paid before the 1st August, 1976, the appellant could not be, treated as a defaulter because according to the provisions of clause (i) of subsection (2) if section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, the above rent could be pair by the appellant within fifteen days of its having fallen due. He explained that the rent in question fell due after 31st December, 1976 which was the last day of the tenancy and, therefore, the appellant could make payment of Rs. 2,000 upto 15th January, 1977. He pointed out that the .aid amount was, in fact, deposited by the appellant on 8th December 1976 in obedience to the order of the learned Rent Controller under the first part of subsection (6) of section 13 of the said Ordinance and thus there was no default on the part of the appellant. He cited Muhammad Ashraf v. Muhammad Anwar (P L D 1975 Pesh. 254) and Iltaf Hussain v. Talib Hussain (P L D 1977 Lah. 110) to support his contention.

5. While relying to the arguments of the learned counsel for the' appellant it was not disputed by the learned counsel for the respondent that rent for five months was to be paid in lump sum but he maintained that since it was not paid in advance before 31st August, 1976, the appellant could not escape the finding of default"

6. I am finable to agree with the learned counsel for the respondent. It has been held in the case of Iltaf Hussain that even if there is a stipulation in a rent deed regard 09 the payment of rent in advance, the tenant cannot be held to be a defaulter if the rent is paid within fifteen clays oil its having fallen due, that is, within fifteen days of the expiry of the period for which, according to the terms of the rent deed, the rent is required t be paid in advance. Since, in the present case, admittedly, rent for period of five months commencing from 1st August, 1976 and ending on 31st December, 1976, amounting to Rs. 2,000 was to be paid in lump sum it would have been alright if the tenant had paid the same within fifteen days of the expiry of the said period, that is, within fifteen days alter 31st De cember, 1976. It is not disputed that he actually deposited the above amount of rent with the learned Rent Controller on 8th December, 1976. This was a valid tender of rent within the meaning of the Explanation appearing at the end of subsection (2) of section 13 of the said Ordinance. Therefore, rely on the cases of Muhammad Ashraf and lltaf Hussain hold that the appellant did not commit default in regard to the payment of the rent in question the concurrent finding of the two tribunals below on the issue of default is, accordingly, reversed.

7. This brings me to the second issue pertaining to the personal need of the respondent. The fact that the shop was needed by the respondent for his own occupation was not controverted by the learned counsel for the appellant. He, however, urged that at the when the respondent launched the ejectment proceedings against the appellant, he could no; seek his eviction on the ground of personal requirement. The argument proceeds that since the tenancy in favour of the appellant was for a fixed period 'extending upto 31st December, 1976, the respondent ' could not apply for his ejectment before that date. In this connection, the learned counsel for the appellant relied on the first proviso to subsection (3) of section 13 of the said Ordinance.

8. It was not denied by the learned counsel for the respondent that the respondent had taken out ejectment proceedings before the fixed period of tenancy had expired and thus the respondent had no cause of action for seeking eviction of the appellant on the ground of personal need. He, however, maintained that as the cause of action has since matured the res pondent cannot be non-suited on the ground that had no cause of action at the time of the making of the said application. In cited Abdullah Bhas and others v. Ahmad Din (P L D 1964 S C 106), Manzoor Ahmad Khan v. Syed Maasood Ali (P L D 1975 Lah. 1521) and Mst. Amino Begum and others v. Mehr Ghulam Dastgir (P L D 1978 S C 220) to support his contention.

9. While dealing with the stand taken by the learned counsel for the respondent it was explained by the learned counsel for the appellant that the aforementioned authorities were not applicable to the present case inasmuch as they related to statutory tenancies whereas the tenancy involved in the instant case is a contractual tenancy. When it was pointed out to him that the case of Abdullah Bhai and others was a case of contractual tenancy he came out with the argument that the said case was under the Karachi Rent Restriction Act, 1953 and not under the said Ordi nance and, therefore, the rule laid down therein could not be applied to the case in hand. The general principle enunciated in the cases of Abdullah Bhai and others, Manzoor Ahmad Khan and Mst. Amina Begum and other was that if a party had no cause of action at the time of initiating legal proceedings for seeking any relief but the cause of action matures during the pendency of the proceedings he may not be non-suited merely for the reason that the cause of action was immature at the time of the filing of the proceedings. This dictum was laid down with a view to avoiding multi Policy of proceedings. The fact that the case of Abdullah Bhai and others related to the Karachi Rent Restriction Act and the cases of Manzoor Ahmad Khan and Mst. Amina Begum and others were in regard to statutory tenancies would not warrant the non-observance of aforementioned princi ple of general application. In the instant case, the period of fixed tenancy expired long time back and thus the protection enjoyed by the appellant under the first proviso to subsection (3) of section 13 of the Ordinance has disappeared. If the respondent is non-suited simply for the reason that he had no cause of action at the tune of the filing of the ejectment application there will be no bar to his filing a fresh application for ejectment against the appellant on the ground of personal need. When a fresh application will be filed there will be another round view to saving them from a fresh round of litigation. I will respectfully rely on the authorities cited by the learned counsel for the respondent and hold that the fact that the cause of action for seeking ejectment of the appellant on the ground of personal need had not matured when the ejectment proceedings were initiated by the respon dent is of no consequence.

10. As pointed out above, the concurrent finding of fact of the two tribunals below that the respondent required the premises in dispute for his own occupation has not been questioned by the learned counsel for the appellant. He has lost on the legal point raised by him with a view to avoiding eviction on the ground of personal need. I, therefore, maintain the order of eviction on that ground alone.

11. In result, the appeal is dismissed with no order as to costs. The appellant is, however, allowed a period of one month to vacate the premises in dispute. M. Y. M. Appeal dismissed.