1986 PLP 1599 (MLD)

4. The issues of relationship, default and requirement for personal use were framed. The preliminary issue was decided and it was held that the appellant was the tenant of the respondent. The appellant has not challenged the said finding. In respect of issue of default and personal requirement statement of the respondent and his brother was recorded. The appellant filed affidavit in rebuttal.

5. The Rent Controller has held that there was no personal requirement established. The respondent has not filed any cross‑appeal against that decision.

6. In respect of the question of default the Rent Controller has decided the same on the basis that several D.W. proceedings had been filed by the respondent against the appellant and the D.Ws. were ordered to be issued. The said D.Ws. were in respect of rent from 1‑5‑1976 to 30‑4‑1978 and thereafter. It is quite clear to me that the Rent Controller was not justified in taking into consideration the D.Ws. which had been issued in respect of rent beyond the period of 1‑7‑1976 when the application for ejectment was filed.

7. It is an admitted position that the respondent had filed suit for recovery of rent of December, 1975 to 30th April, 1976 but the same was dismissed on the basis of special oath taken by the appellant and it is, therefore, clear that there was no arrears of rent upto this date. This obviously leads to the conclusion that the statement made in the application filed by the respondent that there were arrears of Rs.475 upto June, 1976 was evidently incorrect.

8. I have scrutinized the evidence of the respondent and I find a admission from him in cross‑examination that he never issued any rent receipt to the appellant and that he had not maintained any record rents paid by the opponent and that he did not remember how much rent was due against the appellant at the time of filing the rent application and the further admission by him that he did not remember, as it is an old case, the month for which the rent was paid at the time filing the rent case. In the face of this statement in cross‑examination, it was difficult to rely upon the statement made in para.7 of the affidavit of the applicant where he had stated that the opponent has stopped payment of rent from 1‑12‑1975. As I have already observed above this statement had been prove incorrect by the special oath in Suit No.571 of 1978, which was there dismissed. The respondent had not made any particular mention in the affidavit that rent had not been paid to him for the period of May, and June, 1976. Therefore, there was hardly any cogent proof to come to the conclusion that the appellant was in arrears of the rent of Ma and June, 1976. Moreover, the appellant Bashir Ahmed had clearly stated in his affidavit in evidence that he was not a defaulter in the payment of rent as alleged by the applicant and he had further denied that he had sought payment of rent since 1‑12‑1975. A part of this statement had been proved true when Suit No.571 of 1978 filed by the respondent for the rent from 1‑12‑1975 to 30‑‑4‑1976 was dismissed and, therefore, even the other statement made in the affidavit that the appellant was not defaulter in the payment of rent may have been true at least the appellant was entitled to be deemed as credible on this point because half of his statement had been proved from the record as proved.

9. Moreover, I find from the certified true copy of the order in D.W. No.167 of 1977, dated 4‑9‑1977 on page 27 of the second part of the R and P of the case that the order in the D. W. for deposit had been made without prejudice to the title and other matters and, therefore, it was merely a tentative order which could be used for the purposes of D.W. only and could not be treated as a final adjudication by the Court that the rent of May and June, 1976 had actually been found to be due, and hence this order could not be made the basis of the finding that the rent of May and June, 1976 had not been paid by the appellant. The ejectment was, therefore, justified.

10. There is another angle of this appeal. The ejectment case had been filed on 1‑7‑1976 and on this date only rent upto the period of 30th April, 1976 had become due and payable in accordance with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 which allows payment of rent of 60 days after the period when th rent has become due. Therefore, on 1‑7‑1976, the rent of May, 1976 could not be said to have been in default as the same could have been paid by 30th July, 1976 and similar is the position of rent of June, 1976. Since it was proved on record through the dismissal of suit No.571 of 1978 that the rent upto April. 1976 had been paid by the appellant, therefore, the application of ejectment filed on 1‑7‑1976 was incompetent and should have been dismissed because the rent of May, and June, 1976 could not have been claimed by the respondent to be in default on 1‑7‑1976, It was held fin P L D 1968 Quetta 45 by Mr. Justice Abdul Qadir Shaikh (as he then was) as under:‑ "Sixty days have to lapse from the period for which the rent is payable by the tenant before the landlord can seek eviction under section 13(2)(1) of the Ordinance." It is, therefore, obvious that on 1‑7‑1976 the rent of May and June, 1976 could not be claimed ‑to be in default and hence the application should have been treated to be as incompetent after it had been prove that the appellant had paid the rent upto April, 1976.

11. Mr. Mukarram had relied upon N L R 1980 Civil Lah. 243 where it was observed that cause of action could mature during pendency o the case and in that case an application for ejectment filed on 13‑10‑197 for the default of the rent of August of the same year was treated t be competent. However, in view of the clear dictum laid down in P L D1968 Quetta 45 on 3 point, I am .f the view that the application for ejectment filed on 1‑7‑1976 was incompetent in respect of the allege arrears of May and June, 1976. The appeal is, therfore, allowed and the impugned order is set aside. H. B. T Appeal allowed.