1986 PLP 1331 (MLD)

(b) Sind Rented Premises Ordinance (%VII of 1979) ‑‑‑Ss.15 & 21(1)‑‑Ejectment of tenant‑‑Order for‑‑Appellate jurisdiction, exercise of‑‑Ejectment order passed by Rent Controller, not suffering from any infirmity, held, would not call for interference in appeal in absence of‑ misreading or‑evidence. Kadir Bakhsh Bhutto for Appellant. A.F.M. Mokarim for Respondent. Date of hearing: 18th February 1986. This is a first rent appeal filed by the tenant under section 21 of the Sind Rented Premises Ordinance, 1979, challenging the order of ejectment, dated 15‑5‑1983, passed by the Rent Controller, Karachi on the ground of default. Ejectment application in this case had been filed on 22‑10‑1979, on two grounds namely default in the payment of rent from February, 1979 and it may be observed here that the admitted rent is Rs.350 per month, and the' other ground was personal requirement. The landlord's attorney and also his father‑in‑law Ahsanus‑Samad and one S.M. Afan appeared as witnesses on behalf of the landlord and the tenant examined himself. By the impugned order, dated 15‑5‑1983, ejectment of the appellant/ tenant had been ordered on the ground of default but the ground of personal requirement was not accepted. I have heard Mr. K.B. Bhutto, learned counsel for the appellant and Mr. A.F.M. Mokarim learned counsel for the respondent.

2. It is an admitted position that rent w.e.f. February, 1979 was not paid. It is also an admitted position that the appellant started depositing rent in Miscellaneous Rent Case No.4688/79 which Miscellaneous Rent Case was filed on 8‑10‑1979. The case of the respondent was that from February, 1979 rent had not been paid. In his evidence, the attorney of the landlord states that he had gone for Haj and he came back in February, 1979 and in his absence rent was being paid by the appellant to the colleague of the attorney of the landlord namely Mst. S.M. Israrul Hassan, Advocate. The defence of the respondent /tenant his written statement, however, was that the attorney of the landlord namely Ahsanus‑Samad, received rent upto January, 1979 but, therefore, he neither came to collect the rent nor accepted the rent tendered by the tenant on the plea that the landlord had asked the attorney not to accept the rent. It was further pleaded that the respondent was in U.K. and neither the wife nor any other person had been authorized to receive rent from the appellant, although rent had been offered and for this reason the arrears of rent accumulated. However, in his cross‑examination, the appellant has stated that in fact Ahsan-us‑Samad, attorney of the landlord had gone out of Pakistan and hence the rent was not paid by the appellant, and that, after performing Haj, Ahsanus‑Samad London and returned after about nine months. In the evidence, therefore, entirely a new case was set up by the appellant that even the attorney of the landlord was not available in Karachi, to whom rent could be paid. This, however, is contrary to the initial stand taken in the written statement. The contradiction in the stands taken by the appellant has been highlighted by the Rent Controller in his impugned order. Learned counsel for the appellant had cited the case of Najmuddin v. Zamir Ahmad P L D 1982 Kar. 188 and the case of Amir Ali v. Mrs. Alima Ahmad P L D 1981 Kar.

150. The facts of these two cases are clearly distinguishable. No doubt the Rent Controller has a discretion not to order ejectment in case of a default but such discretion has t ' be exercised on sound judicial principles. In the instant case discretion has not been exercised in favour of the tenant and I find neither any illegality nor any impropriety in the order of Rent Controller not exercising discretion in favour of the appellant and ordering his ejectment. Learned counsel for the appellant had taken me through the evidence and I find ‑ that no case of misreading of evidence has been made out. The order of the Rent Controller does not suffer from an infirmity calling for interference in this appeal. As a result First Rent Appeal No.509 of 1983 is dismissed with no order as to costs. However, the appellant is granted time till 31‑5‑1986 to vacate the premises subject, however, to payment of monthly rent. H.B.T. Appeal dismissed.