1987 PLP 1634 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑Ejectment application was filed by the respondent against the petitioners on the grounds of default, personal requirement and reconstruction. The petitioners denied the allegation in their written statement. On 24‑2‑1973 order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1954 was passed by the learned Rent Controller for deposit of rent in Court, in compliance whereof the petitioners have deposited rent in Court upto 31‑12‑1968. After recording the evidence of the parties the learned Rent Controller allowed the ejectment application on the ground of default only vide his order dated 31‑5‑1984 against which the petitioners filed first rent appeal in the Sind High Court which was dismissed on 13‑5‑1986 vide the impugned judgment.

2. Now the petitioners seek leave to appeal on the ground that the finding of the learned High Court and the learned Rent Controller on the question of default in payment of rent is vitiated by wrong approach to the given facts and misreading of the evidence. It is submitted that the legal proposition advanced in the impugned judgment is not well‑founded. It was for the respondents to demand the rent of the premises in question, and the petitioners cannot be saddled with the responsibility to tender rent without notice of the change of ownership of the property in dispute in the Settlement Department in the name of the respondent; that the finding is contrary to the well‑settled principle of law regarding the statutory notice. It is submitted that in the present case the respondent made no demand for rent and as such the notice given by him was not valid in law. Reliance was placed on E. A, Evans v . Muhammad Ashraf PLD 1964 S C 536; that in the absence of determination of the vital issue framed on 24‑2‑1973 as to whether valid and proper notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 was served on the tenants /petitioners by the respondent, the petitioners should not have been held liable for default in payment of rent; that in the events and circumstances prevalent in this case, there was no deliberate default in the payment of rent and as such discretion ought to have been exercised in their favour.

3. We have examined the contentions of the learned counsel. It is clear from the record that after the receipt of notice the petitioners did not tender rent to the respondent nor they deposited the amount in Court, and they remained silent until the rent case was filed. The petitioners have also failed to substantiate if they had tendered the rent to the Settlement Department. The facts of Evans's (ibid) case are not attracted to the facts of the case in hand, which is quite distinguishable and proceed on different premises. It has been rightly held by the learned High Court Judge in the impugned Judgment that the question arises is that can a tenant get benefit of the fact that no demand of rent was made, and, therefore, notice is not proper. This argument would have some force provided the petitioners had not admitted the rate of rent in their written statement. They used to pay Rs.9 to the Settlement authorities and on knowing that there is a change of ownership of the premises in question, they could have attempted to tender the rent at least at the same rate to the respondent /landlord. Not only this but it has been admitted by the petitioners, in reply to notice dated 6‑7‑1970, that they were ready and willing to pay the rent @ Rs.10 per month. Therefore, it cannot be said that the demand of rent was necessary to be made, when the petitioners were statutory tenants of the respondent.

4. Thus we find no merit in this petition and refuse to grant leave. Petition dismissed. M.I./K‑24/8. Petition dismissed