1988 PLP 109 (MLD)

This appeal is directed against the order of the learned Xth Senior Civil Judge/ASJ/Rent Controller, Karachi, passed in Rent Case No. 3782/76 whereby he has ordered the eviction of the appellant from the premises situated on Plot No. 1‑A‑1/32, Nazimabad, Karachi, (hereinafter called "the demised premises.

2. The facts giving rise to this appeal are these. The demised premises were let out on 9‑6‑1987 by virtue of an Agreement of Lease executed between one Mr. Jamilur Rahman Horani, the Founder Principal of City College, and the respondent for a period of 5 years. Upon promulgation of M L R 118 of 1972 the Government nationalised all the educational institutions and, consequently, the City College, Nazimabad also became vested in the Government. After agreement between the parties the rent of the demised premises was got assessed by the Excise and Taxation Authorities, which was fixed at Rs. 1,410 per month. The respondent tiled an application under section 13 of the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as "the 1959 Ordinance") on 9‑9‑1976 for the eviction of the appellants from demised premises on the grounds of default in payment of rent from June 1976 and for her own personal requirement as well as for her grown up sons and daughters. The appellants filed written statement to the said application contending, inter‑alia, that they were liable to pay rent only after submitting the bill by the respondent alongwith pre‑rent receipt alongwith Clearance Certificate in respect of property and K.M.C. Taxes as the same were required to be produced before the Accountant General, Sind. It was pleaded that the respondent was submitting the said documents but she all of a sudden stopped doing so from June 1976 and hence the rent of the months in question fell due. It was also specifically pleaded that the appellants wrote several letters to the respondent to submit the above documents so as to enable them to pay the rent but she failed to comply therewith. The personal need of the demised premises by the respondent as pleaded in the application was also denied.

3. On the basis of the pleadings of the parties, the learned Rent Controller framed the following issues: "(1) Whether the opponent is the wilful defaulter in payment of rent? (2) Whether the applicant requires the premises in good faith for her own use and that of her own children? (3) What should the order be? The learned Rent Controller vide his order dated 11‑12‑1985 answered the issue No. 1 in the affirmative and the issue No. 2 in the negative.

4. Aggrieved by the order of the learned Rent Controller the appellants have filed this appeal. The only argument advanced by the learned counsel for the appellants before me is that the rent for the month of May. 1976 was admittedly in default and the same may be condoned by this Court in exercise of its discretionary powers. He urged with vehemence that this Court has in several cases condoned the delay in exercise of its discretionary powers. He was, however unable to substantiate his contention by even a single authority. The learned read over the depositions of the witnesses wherefrom it is evidently borne to rent for the months of June, July and August 1976 was not paid. As per disposition of D.W.I., Mr. Zahid Hussain Siddique, Principal of the Government City College, the rent for the month of May 1976, was also not paid as it was adjusted towards the amount spent on repairs. He also deposed that he did not send any letter asking the landlady to give advance receipts for the payment of rent. It is pertinent to note here that when order under section 13(6) of the Ordinance was made on 25‑5‑1977 directing the appellants to pay rent from June, 1976 to 30th April, 1977 it was duly complied with without any demur and no case has been set up in this appeal that the rent for that period was not actually in arrears. This fact further clearly establishes the default payment of rent on the A part of the appellants for the month of June to August, 1976 at the time of filing of Ejectment Application. The respondent has in her affidavit‑in‑evidence deposed that the rent had been paid in May, 1976 and thereafter the appellants ignored/avoided to make payment of monthly rent and thus committed default in payment thereof. This statement made by the respondent in her affidavit‑in- evidence could not be shattered in cross‑examination. She again deposed: "The appellant did not pay rent from June, 1976. The learned Rent Controller has thus, in my opinion, rightly reached the conclusion that the default as pleaded in the application had been established and consequently his impugned order allowing the Ejectment Application and directing the appellants to vacate the premises does not suffer from any infirmity. The learned counsel for the appellant at this stage prayed that a period of at least one year may be allowed to vacate the premises as the appellants are running an educational institution in the demised premises. Mr. Muhammad Ali Jan, learned Counsel for the respondent was initially agreeable to allow six months' time to the appellants to vacate the premises. However, later on, he consented to the grant of one year's time to the appellants to vacate the demised premises, subject to their depositing the monthly rent regularly in Court in terms of the tentative order of the Rent Controller.

5. In the result, the appeal fails and is hereby dismissed with no order as to costs. The appellants are allowed by consent one year's time to vacate the demised premises subject to their depositing the monthly rent regularly in Court as per tentative rent order of the Rent Controller dated 25‑5‑1977. In case the appellants fail to pay the rent as agreed upon they shall be liable to be evicted from the demised premises forthwith without any notice, and so it will happen upon the expiry of the period of one year. M.Y.H./M‑197/K Appeal dismissed.