1990 PLP 1729 (CLC)

2. The ejectment application was riled on 30th May, 1985 whereas earlier than that in March, 1985 suit for recovery of Rs.4,000 being the rent for the period from December, 1984 to March, 1985 was filed in the Court of Small Causes, Karachi being Suit No.98 of 1985. This suit was dismissed on 2nd May, 1985 as it transpired that the claim in suit had already been satisfied inasmuch as the defendant in that suit, namely, the respondent in this appeal, had deposited the said sum in two instalments through Rent Misc. Case No.1644 of 1985. The amount so deposited was also withdrawn by appellant's attorney on 20th May, 1985. He, however, still filed the cent case for eviction of the respondent on the ground of default in payment of the rent of the said period, namely, from December, 1984 to 31st March, 1985.

3. The learned Rent Controller has, vide his impugned order, dismissed the ejectment application as he was satisfied that there was only a. default of one month viz. December, 198.1 at the time when the respondent had remitted the rent through money‑order on 6th May, 1985. He, therefore, proceeded to examine as to whether the said default was deliberate and wilful or through negligence on the part of the respondent. After scrutinizing the facts and circumstances of the case, he reached the conclusion that there was no wilful default and consequently dismissed the application.

4. Mr. Syed Saeed Akbar, learned counsel for the appellant contended that once the default is committed it cannot be washed away by tendering of rent. In support of his contention, he cited the following authorities: (1) 1971SCMR725; (2) P L D 1975 Lah. 1326; (3) 1984 C L C 1596, and (4) 1972 S C M R 262.

5. It was, on the other hand, contended by Mr.K.B. Bhutto, learned counsel for respondent that having withdrawn the rent deposited in Rent Misc. Case No. 1644 before filing of the ejectment application, the appellant had waived his right to proceed against the respondent for his eviction under the rent laws. He strongly placed reliance on the authority of this Court in the case of Adam Ahmed Thaqia v. Muhammad Hanif (1988 C L C 1703). In this case Sajjad Ali Shah, J. (as his Lordship then was) has held that having accepted payment of rent arrears from the tenant before filing the ejectment application, the landlord had no cause of action to file the application for ejectment on the ground of default. Alternatively, it was contended by Mr. K.B. Bhutto that even if it is held that the tenant had committed default then too the default for payment of rent being only of one month, it is a fit case for exercise of discretion in favour of the respondent. In this connection, he sought to place reliance on the authorities reported in1986CLC705,1987 SCMR1313,1988CLC1816.

6. I have given my earnest consideration to the facts and circumstances of the case and I am clearly of the opinion that the learned Rent Controller does not seem to have fallen into error in deciding the case in the manner he has done. Admittedly the rent for the period in question, namely, from December, 1984 to March, 1985, amounting to Rs.4,000 had been deposited by the respondent through Misc. Rent Case No.1044 of 1984. It was also withdrawn by the appellant on 20th of May, 1985. There was, therefore, no amount of rent for this period outstanding when the application for ejectment was filed on 30th May, 1985 on the ground of default in payment of rent for the aforesaid period. By withdrawing the rent deposited in Court, the appellant had, in my opinion, waived his right to A proceed against the respondent for his eviction on the ground of default. I am fortified in my view by a judgment of my learned brother, Mr. Justice Syed Abdul Rehman in the case of Haji Muhammad and two others v. Muhammad Din (1986 C L C 2543), wherein it is held that the default once made cannot be washed away by subsequent tender until and unless the landlord accepts the same and thereby waives the default. (Underlined by me for emphasis.) Likewise in similar circumstances in the case of Adam Ahmed Thaqia (supra) it has been held that if the landlord files ejectment application after having accepted the payment of rent in arrears from the tenant, the said application is to be held as having been made prematurely before any rent was due.

7. The Supreme Court in the case of Samiullah v. Mian Muhammad Saleem (1971 S C M R 725), an authority which has been cited by the learned counsel for the appellants, has also held that "it is only when a tenant has not paid the rent and that rent is still outstanding against him that a landlord is entitled to maintain an application 'for eviction of his tenant." This authority supports the case of the respondent rather than advancing. the cause of the appellant.

8. The facts of the case reported in P L D 1975 Lah. 1326, are distinguishable. The rent in the case was received by the landlord subsequent to the filing of the ejectment application. The other observations in that case regarding effect of default are in the nature of obiter dicta and hence I do not deem it necessary to deal with that aspect of the matter in this judgment.

9. The facts of the other two cases cited by the counsel for the appellant have no similarity with the facts of this case and hence they are not relevant to this appeal.

10. For the foregoing reasons, the appeal is dismissed with no order as to costs. M.B.A./H‑229/K Appeal dismissed.