1982 PLP 377 (SCMR)

Nemo for Respondents. Date of hearing : 4th November 1981. NASIM HASAN SHAH, J.‑The father of the petitioners was the original tenant of Shop No. 51 Mecleod Road, Lahore, belonging to the respondents. An ejectment petition was filed against the tenant (Manzoor Ahmad) on 30‑9‑1969 and on I1‑5‑1970 an order was passed under subsection (6) of sec tion 139 for payment of future rent at the rate of Rs. 50 per month before the 15th of each month. The proceedings thereafter continued and evidence on merits was examined. During the proceedings, on 24‑5‑1972, the respondents submitted an application for striking off the defence of the predecessor‑in interest on the ground of non‑deposit of rent in terms of the order passed under section 13(6), inter alia, the non‑deposit of the rent for the month of August 1971 in time namely, it was deposited only on 16‑9‑1971. Notice was issued in this application to Manzoor Ahmad, father of the petitioners, but this application does not appear to have been pursued by the respondents. In the meantime, on 18‑7‑1972, Manzoor Ahmad also died. After his death, the respondents, in fact, made a statement that they would not like to pursue the application for the time being. However, on 23‑4‑1974, they again submitted another application complaining of the default in the payment of rent for the month of August viz. it was not paid until 16‑9‑1971. This allegation having been found to be correct, the Rent Controller struck off the defence of the petitioners on 19‑12‑1974 and ordered their eviction: The learned Additional District Judge rejected the appeal on 6‑2‑1979 and the second appeal was also dismissed by the High Court on 19‑5‑1980. Hence this petition for leave to appeal. The main point raised by the learned counsel for the petitioners is that the default in this case was committed by the original tenant, who died on18‑7‑1972 and this default could not be pressed into service against the present petitioners. The above question has elaborately been considered by the High Court and it has been held that in view of the application submitted by the respon dents on 24‑5‑1972, when there was specific allegation of non‑compliance regarding payment of rent for the month of August it was evident that the action against the default had been commenced during the lifetime of the original tenant. No doubt this application was not pressed by the respon dents but it was clarified that it was not being pursued for the time being hence there was no waiver of their right to obtain ejectment on the ground of default. As the complaint regarding the default had again been pressed, which was established, the Rent Controller could legitimately strike off the defence of the successors of the original tenant. We are in agreement with the view taken by the High Court which is supported by a well‑considered judgment of a Division Bench of the Lahore High Court Sh. Muhammad Nawaz v. Muhammad Azeem and others P L D 1961 Lah.

788. There is, thus, no force in this petition, which is hereby dismissed. The petitioners are, however, granted two months' time to vacate the shop. They have agreed before us that they will voluntarily surrender the possession and continue to pay the rent for the said period of two months. This petition, subject to the above direction, is dismissed. Petition dismissed.