' MUHAMMAD MUZAMMAL KHAN, J.---Instant second appeal assailed judgments/orders, dated 11-3- 2005 and 4-2-2006 passed by the learned Rent Controller and the learned Additional District Judge, Sragodha, whereby respondent's ejectment petition was accepted and appellant's first appeal was dismissed, respectively.
2. Precisely, factual backdrop of the case is that respondent being landlord of shop situated in property No.43/1-D, Kothi No.1, New Civil Lines, Sargodha, which was on rent with the appellant at a monthly rent of Rs,1200 per month, filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Respondent in support of his ejectment petition, pleaded that appellant had become defaulter since September, 2002, as he did not pay rent upto March, 2003; that he required the shop on rent for his bona fide personal need; and that appellant had damaged the property by diminishing its utility and impairing its value.
3. Appellant being respondent in the ejectment petition, opposed the same by filing his written reply, wherein he refuted all the three grounds of ejectment taken by the respondent and averred that he bonafidely tendered the entire outstanding rent through money order, dated 9-7-2003, which was refused by the respondent with malice to initiate ejectment proceedings. Controversial stances of the parties, led to framing of issues and recording of evidence. Respondent beingpetitioner/landlord examined two witnesses, including his own statement as A.W.1. And the case was adjourned for his documentary evidence. On the next date of hearing i,e, 22-10-2004 respondent without producing documents, closed his evidence and the case was adjourned for evidence of the appellant. On the next date, which was fixed for evidence of the appellant i,e, 18-11- 2004, no body appeared on his behalf and the case was adjourned to 21-12-2004. On this date again no body appeared for the appellant and the learned Rent Controller after calling the case four times after certain intervals, proceeded ex parte against him and ultimately passed an ex parte ejectment order on 11-2-2005.
4. Appellant did not file any application for setting aside ex parteproceedings or ex parte order passed against him and instead filed an appeal before the learned Additional District Judge against the eviction order, dated 11-2-2005 but remained unsuccessful, as the same was dismissed on 4-2-2006. Thereafter appellant filed instant second appeal, wherein respondent in response to notice by this Court, appeared and was represented through his counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Appellant had not moved any application for setting aside the ex parte proceedings/ejectment order and his explanation for absence from the Court of learned Rent Controller after filing his written reply (written statement) as detailed in the memorandum of appeal before the learned Additional District Judge, was that he was sick for the last one year and consequently remained absent and could not intimate his counsel, as well. Appellant appended with the appeal his medical prescriptions/reports which revealed that he had some blood sugar and urinary problem, in form of prostate. Appellant also produced his discharge slip, dated 1-1- 2003 from Al-Ghani Zaighum Poly Clinic, Sargodha where he was operated for prostate. The sickness/ operation of the appellant was not of that serious nature to restrict him from appearing before the Court or from making some alternate arrangement in this behalf and that too, after lapse of almost two years. Appellant was discharged from hospital on 1-1-2003 and he was proceeded against ex party on 21-12-2004 and in this manner, his absence from the Court of Rent Controller was in no manner justified, even from the medical record produced by him. Assuming, without conceding that appellant was incapacitated to appear before the Rent Controller but he has not explained absence of his counsel who having been once engaged, was under legal obligation to appear in the case against the appellant, even without instructions. Appellant has also not explained that as to why any body else from his family, did not appear to follow the ejectment proceedings. All this brings one to holdthat appellant was rightly proceeded against ex parte by the Rent Controller.
6. Appellant has been ordered to be evicted from the shop in question on the basis of his default in payment of rent but stance of the learned counsel for the appellant, was that the same was not wilful thus impugned ejectment order is not sustainable at law. In order to determine legal worth of the submissions of the learned counsel for the appellant, his conduct of payment of rent during the continuance of tenancy will have to be looked into. Respondent's plea in the ejectment petition was at appellant defaulted in payment of rent since September, 2002. Appellant besides pleading in his written reply that he remitted rent mounting to Rs,8000 through money order, dated 9-7-2003, which was efused by the respondent, had also produced money order receipts/ oupons. Rate of rent is not denied by the appellant which was Rs,1200 er month. Appellant dispatched Rs,8000 through money order on -7-2003 but he being defaulter in payment of rent since eptember, 2002 was liable to pay rent of Rs,13,200. According to ppellant's own showings, he remitted rent of seven months, even in that ase, default in payment of rent of this period was admitted by him and he rent due being short by Rs,400 was not valid tender. Appellant after efusal of the respondent to accept money order, did not deposit the rent with the Rent Controller and went on committing default till the time jectment petition was filed on 9-9-2003. Appellant has no explanation for the default committed by him for the period intervening the money order and filing of ejectment petition which makes his defaulting attitude, deliberate. Learned counsel for the appellant could not point out, even one stance in support of his claim that appellant was not a wilful defaulter in payment of rent because appellant had not deposited any rent even after filing of ejectment petition till the passing of order under section 13(6) of Ordinance, 1959 by the Rent Controller on 2342-2003. Besides all this, scan of record and impugned orders/judgments revealed that both the Courts below correctly concluded the lis without committing any error of law/facts, thus the same remained immune from scrutiny in second appeal.
7. For the reasons noted above, no case for interference on this appeal could be made out and consequently the same being devoid of any merit, is dismissed. However, appellant is granted one month's time from today i,e, till 5-11-2006 for handing over vacant possession of the shop to the respondent, failing which eviction order passed by the Rent Controller will have its legal course.
There will be no order as to costs.