This is a second appeal against an order for the ejectment of the appellant, Separas Khan, from a shop owned by the respondents, Sh. Abdul Khaliq and nine others.
2. The respondents had sought the eviction of the appellant; under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of non-payment of rent from 1st February 1970 to 31st October, 1973. The application was resisted by the appellant on the ground that he tendered rent for the period .From February to November 1970, through money orders, but the respondent refused to receive that rent and, therefore, he stopped sending rent for the subsequent period, namely, from December, 1970 to October, 1973. The learned Rent Controller, who heard the application, found, as a fact, that the appellant had tendered rent for the period from February to November, 1970 by means of money orders but the respondent refused to get it. The view taken by him, therefore, was as follows:- "Under these circumstances I am of the view that it is the petitioners who are more guilty than the respondent. I, therefore, decide the issue in affirmative and hold that the respondent has tendered the due rent through money orders and it is due to the conduct of the petitioners that he has not sent the rent after November, 1970. It is not his fault if the petitioners refuse to accept the rent due without sufficient reason as the rent tendered through money orders was the same as acceptable to them."
In this view of the matter, the learned Rent Controller held that the default on the part of the appellant in respect of the rent for the period following the one for which the rent was remitted by the appellant by money orders was not wilful. He, therefore, dismissed, with costs, the application for his ejectment.
3. Feeling aggrieved by the order of the learned Rent Controller, the .Respondents went in appeal before an Additional District Judge who, while reversing the finding of the learned Rent Controller, accepted the appeal and ordered the ejectment of the appellant from the shop in dispute. He has, therefore, come up in second appeal to this Court.
4. It is not denied that the appellant did not pay or tender rent for the period from December, 1970 to October, 1973 Which comes to about three years. He did not even deposit this rent with the Rent Controller. Learned counsel for the appellant contended that as the appellant had offered rent for the period from February to November, 1970, by means of money orders, but the respondent, had declined to receive that rent, he was not obliged to tender rent for the subsequent period. In support of this contention; he relied on the case of Mian Rehmat Ali v. Khadeja Hakim (PLD 1967 Lah 29) in which a Division Bench of this Court had observed as follows: -"In the case before us, the appellant did tender rent for the months of April, May, June and July 1960, but thereafter made no tender of rent. In cases where rent is tendered by the tenant once or twice, but is refused by the landord, and no further payment of rent is made by the tenant, the real question is whether the tender of further rent was not made in the belief that rent would not be accepted by the landord; because if that be the position and it be clear that the landlord is not willing in any circumstances to accept the rent, if it is tendered to him; then the Court must incline in favour of the tenant, and exercising its discretion in his favour, decline to eject him."
As against the aforesaid authority, there is pronouncement of their Lordships of the Supreme Court in the case of Yousaf Shah v. Haji Ghulam Jan Khan (1975 SCMR 464) which is to the following effect:- "it is well settled that the mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve the tenant of his continued liability to pay or tender the same for each successive month."
Therefore, for obvious reasons, in deciding this case I would be guided by the dictum in the Supreme Court case instead of the observations recorded in Mian Rehmat Ali's case decided by this Court.
5. I may also mention ,here that even in the case of Mian Rehmat Ali this Court did not advise a tenant that if his landlord refuses to accept rent for some period, he should not bother about him any more. On the other hand, the Court cautioned the tenant that with a view to protecting himself against an order of eviction he should continue tendering rent to the landlord. This is clear from the following observations appearing just after those reproduced earlier: "It is, however, in the interest of the tenant, to protect himself from an order of ejectment, by tendering rent to the landlord periodically, so as not to run the risk of being declared a defaulter, even if he does not accept the rent."
Therefore, ,even if the appellant was being guided by the case of Mian Rehmat Ali in the matter of his dealings with the respondent, he should have, in his own interest continued to tender rent to the respondents, by means of money orders. If this arrangement was embarrassing or inconvenient for him, he should have deposited the rent in the office of the Rent Controller. He, however, did not take any of these two steps. Therefore, the mere fact that he tendered rent to the respondents for some period but they refused to accept it, is not enough to hold that his default to respect of the subsequent period was not wilful.
6. There are numerous authorities on the point that only that default can be considered as not wilful which occurs due to any reason beyond the control of the tenant. If the appellant had wished to tender the rent ii question by money orders as done by him earlier or had decided to deposit the same with the Rent Controller there was nothing to prevent him from so doing. Since he was enjoying the premises in dispute he should have in all fairness, paid or tendered the rent, therefore as and when it became dug in terms of the provisions of clause (i) of subsection (2) of the West Pakistan Urban Rent Restriction Ordinance, but for three long years he just did nothing to demonstrate that he was ready and willing to part with the amount of rent which had fallen due, from time to time. I am, therefore of the view that the appellant was not willing to pay the rent in question and as such his default is nothing but wilful.
7. As there is no force in this appeal, it is dismissed in limine.