1976L84 (PLP)

This second appeal preferred by a tenant under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 brings under challenge the first appellate judgment dated 20‑7‑1968 ; whereby the order of the learned Rent Controller, date0t 13‑4‑1968 directing the ejectment of the appellant on ground of default in payment of rent, was affirmed. On the pleadings of the parties following issues were framed :‑ "(i) What is the actual rent of the shop in dispute ? O. P. P. (ii) Whether the respondent paid or tendered rent to the petitioners in time ? O. P. R. (ill) Whether the respondent has damaged the shop ? O. P. P. (iv) Whether the petitioners bona fide require the shop for their personal use and occupation ? O. P. P. (v) Whether the respondent owns two shops in the locality of the shop in dispute ? If so, its effect ? O. P. P. (vi) Whether the respondent is a nuisance to the petitioners ? If so, its effect ? O. P. P. (vii) Relief." No contest was raised before the learned first appellate Court on any other issue than one relating to the default in payment of rent (issue No. 2): In this appeal also the arguments have been addressed with regard to this very issue.

2. Both the learned Courts below have held that the appellant com mitted default in payment or tender of rent notwithstanding the fact that he had made three dep;:sits in Court on 16‑9‑1965, 19‑I1‑1966 and 20‑9‑1967 of three lump sum amounts as rent, each for about one year. In other words, the failure of the appellant to deposit monthly rent within the statutory or reasonable period after the expiry of each month has been treated as default notwithstanding the fact that on the date of application for eviction i.e. 11‑12‑1967, technically speaking there was no rent due, for a period of three years prior thereto.

3. Learned counsel states that the appellant made the following deposits :‑ From 1‑10‑1964 to 31‑12‑1965, on 6‑9‑1965 ... Rs. 225 From 1‑1‑1966 to 31‑12‑1966, on 19‑11‑1966 ... Rs. 180 From 1‑1‑1967 to 31‑12‑1967, on 20‑9‑1967 ........ ... Rs. 180 It is also an admitted fact that the respondents did withdraw a deposit of rent on 28‑5‑1964 which it is stated related to some months ending on 30‑9‑1964.

4. Learned counsel for the appellant has contended that no rent was due at the time of the filing of the application, therefore, there was no default ; that the landlord had withdrawn the rent in May 1964, therefore, this should be treated as acquiescence on his part and in any case it would show that he did accept the rent on basis other than monthly, therefore, if the appellant continued making deposits in lump sum for several months it should not be treated as wilful default ; and lastly that the appellant having taken the plea that the tenancy was monthly both the learned Courts have failed to decide this question.

5. It is clear from the rent account note book produced by the appellant (Exh. D. 1) that the tenancy was monthly. Moreover, it was decided by the learned Rent Controller thai the monthly rent was Rs.

15. This finding has not been challenged by the appellant. It is also clear from the statement of the appellant as also his pleadings that the rate of rent according to him was Rs. 15 per mensem. He did not mention any other rate in the form of a yearly. half‑yearly or quarterly rent. It appears that after having made a bare denial in the written statement about the fact that it was a monthly tenancy he did .not remain any more serious about it; that is why no assertion was made in this behalf in his deposition made in Court. For all the above reasons it cannot be held that the tenancy was anything other than monthly ; that the appellant did stick to the plea of the yearly tenancy; ..and las ly that the Courts have failed to decide this question. The last contention of the learned counsel has therefore no force.

6. It appears that on account of some dispute between the parties the .appellant decided upon making the deposit directly in Court instead of tendering it in the first instance to the respondents. An assertion has been made by him that he used to send money orders but the landlord made a ‑statement on oath denying that any money order had ever been refused. There are two money order coupons on the file one of 1953 which was not refused and the other of 1966 on which there is no endorsement of refusal. No evidence was produced from the postal authorities nor any other evidence was produced either to show that any money order was refused or that money orders were sent for monthly rent from October 1964 to December 1967. I have no reason to differ with the learned Courts below on a question of ‑finding of fact namely, that no tender was made by the appellant to the respondents for this period and in any case not on monthly basis. Mere deposit in Court without tender for long periods, would not, in the circumstances of the case, prove bona fides of the appellant. Two facts clearly emerge from appellant's admitted position (i) that rent which was to be paid, tendered or deposited by the appellant on monthly basis was neither paid nor tendered on that basis instead was deposited by the appellant each time after about a year ; thus every time, committing a default of at least 10/11 months; (ii) the appellant persisted in committing the above‑explained default for period of at least three years. In these circumstances the mere fact that he had made a total deposit of three years' rent prior to the date of the filing of ,the application and thus in this context no rent was due from him, would not help him in so far as the default in payment of monthly rent at proper time its concerned. Argument of the learned counsel in this behalf is untenable.

7. T also do not agree with the learned counsel that the default was not delibera!e or wilful. In this connection learned counsel also pointed out that the respondents had made an exaggerated demand of Rs. 50 per mensem an if the appellant while resisting this, allegedly illegal demand, made deposit of lump sum amounts, discretion in the circumstances of the case should have been exercised in his favour. The learned counsel for the respondents while relying on two rulings of the Supreme Court namelv, Haji Ashraf‑ud‑Din v. Sabir Hussain and another (1973SCMR309) and Hafiz Dawood v. Abdul Ali Khan (1973 SCMR 598) contended that it was the duty of the appellant to pay the proper rent which he thought to be due from him to the respondents at proper time i.e. on monthly basis. If he has failed to do so then the mere fact that the landlord made an exaggerated demand would not absolve the tenant of his liability to ejectment in case of default in payment of rent. The principles laid down in these rulings do support the counsel for the respondents. It appears that on account of the demand of higher rent by the respondents the appellant as a counter‑blast started making deposits in Court after long periods of intervals. It is well‑known that withdrawal of such like deposits by the landlord from the Court is not an easy task. He has to waste time and incur expense. It was all to the inconvenience and annoyance of the landlords and the appellan persisted in this attitude for a very long time. In the circumstances of the case, therefore, apart from the fact that he has clearly committed the default In payment of the rent at proper time, he is not entitled to any discretionary relief. His conduct was far from being bona fide. Thus there is no force in the arguments of the learned counsel for the appellant advanced in this behalf.

8. There is no question of acquiescence on the part of the respondents The rent account note‑book of the appellant shows that they used to receive the rent from him on monthly basis up to 1953, Thereafter there is evidence about receipt of rent by them in May 1964 but the amount is nowhere mentioned. In any case this would not show that on account of one instance only the respondents had given the appellant to understand that they wouldlr receive the rent on basis other than monthly ; and there is absolutely no justification for assuming that they had acquiesced in the appellant depositing the rent on yearly or more than yearly basis.

9. None of the contentions raised by the learned counsel for the appellant succeeds. There is no force in this appeal and the same is dismissed There shall be no order as to costs. The appellant is allowed two months` time from today to vacate the premises in question. s. A. H. Appeal dismissed