' MUHAMMAD ATHAR SAEED, J.---This petition has been filed against the judgment dated 15-1-2003 passed by the learned District Judge, Karachi East, in Rent Appeal No,84/2002 vide which he accepted the appeal of the respondent against the ejectment order passed by the Vth Rent Controller, Karachi East and set aside the order of eviction and dismissed the ejectment application bearing No,265/2000.
2. Brief facts of the case are that the petitioner/landlord had filed rent case on 19-4-2000 numbered 265/2000 for the eviction of the respondent/tenant, who was her tenant in respect of Flat No,4, first floor, Block 7& 8. Overseas Cooperative Housing Society, Karachi, as he had allegedly committed default in payment of rent. The learned Controller has framed the following issues.
(1) Whether the ejectment application is maintainable?
(2) Whether the opponent has committed wilful default in payment of rent of demise premises?
(3) What should the order be?
3. After answering issues Nos.l & 2 in affirmative she had allowed the ejectment application and directed the respondent/ tenant to vacate the premises and hand-over the possession of the demised premises to the petitioner within 60 days from the date of her order.
4. Being aggrieved by the above order the respondent filed an appeal before the learned District Judge, Karachi East, who vide the impugned order accepted the appeal and set aside the order of the learned Controller and dismissed the ejectment application. The reasons which prevailed that the learned District Judge, for accepting the appeal are detailed below:- ' The contention of the respondent that the appellant had failed to make payment of rent from July 1998 despite repeated demands is false inasmuch as in evidence, her husband admitted his written acknowledgement for receiving rent upto July 1998 and further admitted to have refused to receive the rent for August, September, October and November 1998. In her notice dated 29-10- 1998, sent to the appellant through her advocate, the respondent did not make demand of rent and did not complain about any delay in its payment. She simply asked him to purchase the property. The plea taken by her in evidence that she had refused to receive the rent because default had already been committed is not only an afterthought but inconsistent with her plea taken in the ejectment application.
' The respondent's husband admitted in his cross-examination that in the year 1994 notice was served upon the appellant to vacate the premises on the ground that the respondent needed it for her personal occupation and has further admitted that he was also asked to purchase the same.
The alleged delay in the payment of rent for three months, on account of which the respondent, according to her, had refused to receive the rent, was made in 1998 but the ejectment case was filed in 2000 i.e, after one and half years and no explanation is given for such delay.
' In view of the above, it cannot be said that the appellant has committed default in the payment of rent so as to entail his ejectment. Even otherwise default upto six months is condonable and ejectment, discretionary. This was a fit case for the Rent Controller to exercise discretion in favour of the appellant.
5. Heard Mr. N.G. Dastagir, learned counsel for the petitioner and Mr. Sathi M. Ishaque, learned counsel for the respondent.
6. The main contention of the learned counsel for the petitioner is that although it was an admitted fact which has been admitted by the respondent that he had tried to make the payment of rent for the months of August, September & October on 6-11-1998, to the petitioner's husband/ attorney in presence of two other tenants, the petitioner's husband/attorney had refused to receive the rent and had also refused to accept the rent for the month of November 1998 and therefore, the respondent had sent rent for the months of August to November 1998 by money order dated 12-11- 1998 which was also refused to be accepted by the petitioner when the same was tendered to her.
The learned District Judge held that it cannot be said that the appellant had committed default in payment of rent so as to entail his ejectment. He further argued that the learned District Judge had wrongly concluded that since the petitioner had not demanded the rent in her notice dated 29-10- 1998 sent to the respondent for purchase of property, there was no arrear of rent as on that date.
That the plea taken by her in her evidence that she had refused to receive the rent as the default had already been committed is not only an afterthought but also inconsistent with the plea taken in the ejectment application. In support of above contention he drew my attention to paragraph 8 of the written statement filed on behalf of the respondent wherein the respondent had admitted that he had paid the monthly rent for the months of August, September and October 1998 on 6-11- 1998 in presence of two other tenants, but the petitioner's attorney refused to issue the receipt of the said amount. He pointed out that despite this contention the respondent contends that he had sent the rent for the months of August to November 1998 Ito the petitioner vide money order dated 12-11-1998. He stated that it seems very strange that once the rent for these months had already paid to the respondent, the respondent again remitted this money through money order to the petitioner. He also argued that the learned District Judge had not pointed out any provision of his application under section 15 to substantiate his findings that the plea taken by the petitioner for refusal to receive the rent is inconsistent to the provisions taken in the ejectment application. He took me to the provisions of the application filed by him under section 15 to prove his contention that there is no provision which is inconsistent with the above plea.
7. He stated that another reason for which the learned District Judge, had accepted the appeal was that no explanation was given for filing the ejectment application almost one and a half year after the alleged default of rent. He argued that without prejudice to his contention that the application would not be hit by laches. The respondent could only take this objection, if it had been raised in his pleadings. He read the written statement of the respondent to point out that the respondent had not taken this point in her written statement. He also drew my attention to the Affidavit-in-Evidence of the respondent filed before the Rent Controller, wherein this point was also not taken. In support of his above contention he relied on the judgment of the Honourable Supreme Court of Pakistan in the case of: ' Pakistan Post Office v. Settlement Commissioner and others reported in 1987 SCM R 111.
8. He further stated that he had not received any rent after the alleged default, but the respondent has been depositing the same in the Misc. Rent case filed by him and therefore, it cannot be presumed that he had waived the default. In this connection he relied on the judgment of single Judge of this Court in the cases of:
(1) Muhammad Aminuddin Qureshi v. Salahuddin reported in 1990 CLC 1394 and
(2) Mrs. Afia Baig v. Pakistan State Oil Company Ltd. Reported in PLD 1991 Karachi 239.
' He said another reason given by the learned District Judge for the acceptance of appeal was that default upto 6 months is condonable and ejectment discretionary and according to the learned District Judge this was a fit case for the Rent Controller to exercise discretion in favour of the appellant. He pointed out that discretion of ;condonation upto six months is available in terms of the proviso, which was added to subsection 2 of section 15 vide Ordinance No,14 of 2001. He further stated that this proviso does not apply to the respondent's case as it required the respondent on the first date of hearing to admit his liability and the Rent Controller should be satisfied that this has his first default. He said that the respondent in this case does not fulfil the conditions of this proviso as this was not his first default, but he was a persistent defaulter. He further stated that the respondent had also not made the submission on the first day of hearing. Even otherwise the proviso does not apply to him as this proviso was not available when the present ejectment application was filed and the first hearing of the case was held. He further argued that the discretion lay with the Rent Controller and the learned District Judge could not substitute his discretion in place of the discretion of the Rent Controller. On the basis of above arguments he prayed that the order of the learned District Judge be set aside and the order of the learned Rent Controller be restored.
9. The learned Counsel for the respondent supported the impugned order and stated that the same was passed on correct appreciation of the facts of the case and the law on the subject and prayed that the constitutional petition may be dismissed. He argued that the ejectment application which was filed in April 2000 for the alleged default of rent for the months of August, September and October 1998 was hit by laches. He argued that the question of laches was a legal question going to the root of the matter and could be raised at any stage of the proceeding. He further submitted that the impugned order was passed on 15-1-2003 and the constitutional petition was filed on 6-6-2003 against the order of the learned District Judge and therefore, it was also hit by laches. He submitted that only on this point the petition was liable to be dismissed. He further argued that the petitioner's attorney had in his cross examination had admitted that the tender of rent for the months of August, September, October and November 1998 through money order dated 12-11-1998 was refused by him. He therefore, submitted that it was a engineered default which occurred due to the refusal of the petitioner's attorney to receive the rent. He further submitted that his case fell within the proviso to sections 15, 1 & 2 as before the filing of ejectment application he has already deposited the disputed rent in Misc. Rent Case. He further argued that the learned Rent Controller had without cogent evidence wrongly arrived at the conclusion that the default was established, therefore, had decided the ejectment application against him. On the point of ejectment application being hit by limitation he relied on the judgment of single Judge of this Court in the case of: ' Messrs Pakistan State Oil Company Ltd. v. Sikandar A. Karim, reported in 2005 CLC 3.
10. I have examined the case in the light of the arguments of the learned counsel, the case laws relied on by them and perused the orders of the learned Rent Controller, the learned District Judge and the records of the case.
11. A perusal of Para 8 of the written statement filed by the respondent before the learned District Judge leads to conclusion that the respondent has admitted that he paid the rent for the months of August, September & October on 6-11-1998 and when the petitioner's attorney refused in A presence of two other tenants i.e, (1) Sikandar and (2) Jamal to issue the receipt of such payments.
He vide money order bearing No,4364 dated 12-11-1998 remitted an amount of Rs,7,600 being the rent for the months of August to November, 1998.
12. According to the Tenancy Agreement executed between the petitioner and the respondent the validity of which has not been denied by the respondent it has been provided that the rent shall be paid within the first week of every month in advance. It is, therefore, clear from the above averment made in Para 8 of the written statement that the respondent had defaulted in payment of rent for the months of August, September & October 1998. The learned Rent Controller, had therefore, rightly given the findings that the respondent had committed default in payment of rent and the learned District Judge had not given any reason for his comments that the respondent had not committed the default in payment of rent, so as to entail his ejectment.
13. I have also perused the provisions of the ejectment application filed by the respondent before the learned Rent Controller, so that I may be able to discover the inconsistency between the provision of this application and the plea taken by her in evidence that she had refused to receive the rent because default has already been committed, but I have not been able to discern the inconsistency between these pleas which had been seen by the learned District Judge. I am also of the opinion that the notice dated 9-10-1998 sent by the petitioner to the respondent asking him to purchase the property is on a different subject altogether and it was not necessary for the appellant to make demand of rent in this notice. I also fully agree with the contention of the learned counsel for the petitioner that the delay in filing the ejectment case does not mean that the petitioner had waived the alleged default and could not deprive the petitioner of the right of moving Court for ejectment of the respondent. In this case the two cases of this Court relied on by the learned counsel for the petitioner fully support this case. It will be relevant to reproduce the following extracts of these judgments.
' Muhammad Aminuddin Qureshi v. Salahuddin 1990 CLC 1324.
' "...Although no doubt, there was a delay in filing of the ejectment application since admittedly thirteen months had elapsed between expiry of the validity of the tenancy agreement and filing of an eviction application by the appellant before the learned Controller but this by itself cannot constitute waiver, firstly because no period of limitation was prescribed for initiating proceedings against the tenants moreso when the cause of action was a continuous one. Besides that an inference also could not be drawn from the conduct of the landlord that he had relinquished his right to proceed against the tenants for their ejectment from the demised premises."
' Mrs. Afia Baig v. Pak. State Oil Co. Ltd. PLD 1991 Karachi 239.
' "The learned Controller observed that 'the record shows that the eviction application was filed as late as on 7-9-1985 i.e, after 3 years of the above period of default and as such merits/demerits of this part of the issue cannot be enquired into as for all practical purposes, this claim of default is deemed to have been waived by applicant'.
' The observations are uncalled for: It is only the remedy by way of recovery of the amount of rent is barred but the right itself continues to exist, and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way. In the above case of Perwaiz Akhtar, the Honourable Supreme Court held that 'the rent due includes time-barred rent. The recovery of rent and eviction of tenant are two distinct cases. It is a different matter that a landlord cannot recover the amount due to lapse of time but the liability would not extinguishable."
14. The case law relied by the learned counsel for the respondent is dist inguishable because in that case the ejectment application was filed for 10 years after the alleged default, the landlord continue to receive the rent wherein the present case the petitioner had not received rent after the alleged default and the rent was deposited in the Misc. Rent Case. I am also of the view that the proviso to subsection 2 of section 12 of Sindh Rented Premises Ordinance, 1979 does apply to respondent as he did not fulfil the conditions of this proviso nor such argument was made before the learned Rent Controller and therefore, the learned District Judge was not correct in holding that this was fit case for Rent Controller to exercise discretion in favour of the respondent.
15. For the foregoing reasons, the impugned order passed by the learned District Judge, cannot be sustained. I therefore, set aside the order of the learned District Judge and restore the order of the Rent Controller, accepting the ejectment application and direct the respondent to hand over the vacant possession of the subject premises to the petitioner within 60 days of the date of this order.
' This constitutional petition is disposed of in the above terms.