1987 PLP 1763 (CLC)

Zahiruddin Khan for Respondent. Date of hearing: 12th August 1987. This appeal is directed against an order dated 13‑3‑1982 passed by the learned XIth Rent Controller at Karachi, in Rent Case No. 1217/70, whereby the learned Rent Controller has allowed the ejectment on the ground of default for the period commencing from 1‑6‑1969 to 30‑4‑1970.

2. The brief facts leading to the filing of the above appeal are that the aforesaid rent application was filed on the ground of default for the said period. The same was allowed by the learned Rent Controller by an order dated 9‑8‑1972. Against the above order, First Rent Appeal No.470/72 was filed, which was allowed by the learned IVth Additional District Judge, Karachi by a judgment, dated 20‑7‑1973, whereby the case was remanded to the learned Rent Controller on all the issues. Against the above order the present appellant filed IInd Appeal No.264/73, which was partly allowed by a judgment, dated 9‑9‑1979 and the case was remanded with the direction to allow the parties to lead evidence on the question of default. After the above remand order one of the sons of the deceased tenant Muhammad Saleem was examined whereas the respondent was further cross‑examined on 23‑1‑1987. After hearing the learned counsel for the parties, the learned Rent Controller by the order under appeal allowed the ejectment on the ground of default.

3. I have heard the learned counsel for the parties and have perused the evidence produced by them. It seems that the defence taken by the appellant before the learned Rent Controller was as follows:‑

(1) That the rent receipt for the month of June, 1969 could not be filed as the same was filed in Suit No. 1651/69. (2) The rent receipt for the months of July and August 1969 was not issued 'by Mr. U mar Khan Tonk, Advocate who was collecting the rent on behalf of the respondent. (3) That the rent for the period commencing from Sept. 1969 could not be paid or deposited as the respondent's address was not available to the appellant. As regards the receipt for the month of June, 1969, the learned Rent Controller has held that the appellant failed to produce the same without any justification and, therefore, he has held that there was default for the above month.

5. As regards the rent receipt for the months of July, and Aug. 1969, the finding of the learned Rent Controller is that the appellant failed to bring any documentary evidence on record to indicate that at any point of time they demanded rent receipt for the above two months from Mr. Umer Khan Tonk, Advocate.

6. Regarding the rent for the period commencing from Sept. 1969, the learned Rent Controller was of the view that the appellant could have deposited the rent as the respondent was a party to the suit filed by the appellant and his address was given therein.

7. Mr. M. Hussain Adil Khatri, learned counsel for the appellant, has pointed out that even in the suit, the respondent was served by substituted service and, therefore, this finding is not proper. It will suffice to observe that even if no address was available as alleged by the appellant, he could have deposited the rent with the Rent Controller by making an application stating therein, that for want of address he could not tender the rent to the landlord. The finding of the learned Rent Controller on the question of default seems to be supported by the evidence on record and, therefore, does not call for interference by this Court. I would, therefore, dismiss this appeal with no order as to costs. However, with the consent of the learned counsel for the respondent, I allow one year time to the appellant from today to hand over the vacant possession of the premises on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of one year. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of one year period, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellant. H.B.T./Z‑15/K Appeal dismissed.