1986 PLP 2301 (MLD)

Abdul Wahid Chaudhary for Respondent. Date of hearing: 13th November, 1979. The respondent filed a petition for ejectment of the appellant from the shop in dispute, on the ground of personal, use, subletting, damage to the property and default in payment of rent for the month of August, 1976.

2. The appellant raised the petition. The learned Rent Controller on the basis of the evidence led before him decided the issue regarding default against the appellant. The findings on the other issues were, however, against the respondent. He also came to the conclusion that the respondent was bound to serve a notice on the appellant, under section 13‑A of the Rent Restriction Ordinance but he failed to do so. In view of these findings he dismissed the petition on 8‑7‑1978.

3. In appeal the learned Additional District Judge held that notice under section 13‑A was not necessary. It was argued before him that there was no written agreement of tenancy and the petition filed on 13‑10‑1976 was thus within 60 days of accrual of cause of action, regarding the default is payment of rent for the month of August 1978. In this respect the learned Additional District Judge held that as the appellant never tendered or paid rent to the respondent landlord for the month of August, even after filing of the petition, he became a defaulter. He upheld the findings of the learned Rent Controller on the issue regarding damage to the property and subletting. He woof the opinion that the appellant's son namely, Allah Ditta who was in actual occupation of the shop and he also remitted rent to the respondent through money order coupons R.W. 4/1 to R.W. 4/3. He maintained that it was not necessary that property may have been sublet to a stranger. Accordingly, he reversed the findings of the learned Rent Controller on this issue.

4. The appellant's learned counsel argued that there being no written agreement of tenancy, under clause "1" of subsection (2) of section 13 of the Rent Restriction Ordinance, the appellant could be deemed to have committed default in payment of rent for the month of August. 1976 only if no rent was paid upto 31st October, 1976. He contended that the ejectment petition filed on 13‑10‑1976 was premature. He also referred to money order coupons Exh. R.W. 4/1 to R.W. 4/3 to urge that the rent was tendered to the respondent through money orders.

5. It is correct that there was no written agreement of tenancy, between parties and the cause of action on account of default is payment of rent could arise only after 60 days, whereas the petition was filed before the expiry of this time limit. But it is to be noticed that the appellant never paid or tendered for payment any rent to the respondent for the month of August, 1976. There is nothing in the money order coupons Exhs. R.W. 4/1 to R.W.4/3 to suggest that the appellant rent for this period to the respondent, through money orders. It was only in pursuance of the order, dated 26‑1‑1977 passed by the learned Rent Controller under section 13(6) of the Ordinance that the appellant deposited rent in the Court. No objection was raised in the written statement that the petition was premature. The maturity of cause of action during the pendency of the petition and consequential default in payment of rent could have, been taken note, of by they learned Rent Controller. The learned First Appellate Court rightly adhered to this aspect of the case. On the question of default, both the learned Courts have given concurrent findings against the appellant, I do not find any merit in this contention of the appellant's learned counsel.

6. It was next argued that the findings of the learned Additional District Judge on the question of subletting cannot be sustained. In support of his submission the learned counsel referred to the testimony of Muhammad Bashir R.W.1 and Amin Ali R.W.2. Both of these witnesses stated that the appellant's son Allah Ditta worked with the father. The respondent's learned counsel relied on the statement of Muhammad Shafi A.W.1 who deposed that the appellant passed on the possession of the shop to his son and he himself worked in Krishan Nagar. He also referred to the deposition of the respondent and the money order coupons, to argue that it was appellant's son Allah Ditta who alone was in possession of the shop and remitted the rent to the respondent through money orders.

7. On the issue of subletting the learned Rent Controller held that both the father and the son worked together. He, however, ignored that through these money order coupons, it was Allah Ditta who remitted rent to the respondent. It is in the statement of the appellant's son who appeared as R.W.3 that he had been paying the rent regularly. Under clause (ii)(a) of subsection (2) of section 13, a tenant is liable to be ejected who without the written consent of the landlord has:‑ "transferred his right under the lease or sublet the entire building or rented land of any portion thereof."

8. The evidence on the record demonstrate that appellant's son; alone is in possession of the shop and he has also been sending rent to the respondent through money order. I feel that there is sufficient evidence on the record to attract the applicability of the clause (ii)(a) of subsection (2) of section 13 of the Ordinance. The view taken by, the learned Additional District Judge is thus not open to objection.

9. The appellant's learned counsel also attacked the findings of learned two Courts below on the question of bona fide personal need. There is a concurrent finding of both the learned Courts below against him on this point. This being a finding of fact, intervention in second appeal is not possible. For all these reasons I do not find any merit in this appeal which is hereby dismissed leaving the parties to bear their own costs. The appellant shall hand over the vacant possession of the shop to the respondent within three months. H . B . T . Appeal dismissed.