1. ' This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is directed against the judgment dated 11th January, 1977, passed by the learned Additional District Judge, Karachi, whereby he maintained the order dated 31st May, 1976, passed by the learned Rent Controller, Karachi allowing the eviction application filed by the respondent and directing ejectment of the appellant from House No, 12/39, Walayatabad, Manghopir Road, Karachi.
2. ' The relevant facts are that on 23rd March, 1972 the respondent rented out the aforesaid house to the appellant on monthly rent of Rs,
80. The appellant paid Rs, 240 to the respondent cut of which Rs, 80 were the rent for the first month from 23rd March, 1972 to 22nd April, 1972 and the balance of Rs, 160 was to be treated as fixed deposit. Thereafter dispute having arisen between the appellant and the respondent over the repairs of gutter etc. The appellant filed Misc. Application under sections 12 and 13 of the Ordinance for directing the respondent to carry out the repairs and for permission to deposit rent in Court. Notice of this application was issued to the respondent whose counsel appeared before the learned Rent Controller on 7th July, 1972 and filed his vakalatnama.
3. Thereafter the application was taken up by the Court on 22nd July, 1972 and in presence of the parties the learned Rent Controller passed the order allowing the appellant to deposit rent in Court at his own risk. As next day i,e, 23rd July, 1972, was Sunday and Holiday, the appellant deposited Rs, 80 in Court on 24th July, 1972 stating it to be the rent for the month of June 1972. Thereafter on 11th August, 1972, the respondent landlord applied for ejectment of the appellant on the grounds that he had committed default in paying rent for the period 23rd April, 1972 to the date of filing the application and had carried out certain additions/alterations in breach of the terms of tenancy.
4. The appellant contested the application and denied both the grounds, With regard to the default he alleged that he had paid rent to the appellant for 7 days of March and for the month of April 1972, and thereafter had also paid him rent for the month of May, 1972, where after dispute arose between them over the repairs of the gutters etc. Which the respondent had promised and as a result thereof he made application to the Court on 1st July 1972 for permission to deposit the rent in Court which was allowed by the learned Rent Controller on 22nd July, 1972, and 23rd July, 1972 being a Sunday and Holiday, he deposited rent in Court on 24th July, 1972 and, therefore, no default had been committed by him. He also denied having carried out any additions/alterations in the premises. The learned rent Controller after framing the necessity issues and recording evidence held against the respondent landlord on the issue regarding additions and alterations but on the issue regarding default be found against the appellant vnd directed his ejectment, holding that the appellant hate committed default in paying rent for one month from 23rd April, 1972 to 22nd May 1972, being aggrieved, the appellant went in appeal wherein he also made an application under order XLI, rule 27, C. P. C. For bringing the documentary evidence on record as additional evidence which consisted of his Misc. Application dated 1st July, 1972 and the order dated 22nd July, 1972 passed thereon by the learned Rent Controller permitting him to deposit the rent in Court. The learned appellate Judge however refused to grant this application and also dismissed the appeal and maintained the order of the learned Rent Controller. Hence this second appeal.
5. ' Mr. Abdul Majeed Khan, learned counsel for the appellant, contended that the rent for the period of one month from 23rd April, 1972 to 22nd May, 1972 became due on 23rd May, 1972 and was payable under the Ordinance within sixty days whereof before 23rd July, 1972, and since the appellant had filed a Misc. Application before the Rent Controller on 1st July, 1972 for permission to deposit the rent in Court and after the said application was granted on 22nd July, 1972 he did deposit the Rent on 24th July, 1972, intervening date of 23rd July, being Sunday and holiday, the appellant could not be held to have committed default within the meaning of the Ordinance.
6. ' The learned counsel next contended that even if it was assumed for the sake of arguments that technically the appellant committed default by depositing rent 2 days late, the same could not be termed as wilful in the circumstances of this case and the appellant was entitled to the discretion of being not ejected from the premises in question, which aspect of the case has not been even taken into consideration by the two Courts below.
7. ' The question for consideration in this appeal therefore is whether the appellant committed default in paying rent for one month of 23rd April 1972 to 22nd May, 1972 and whether it was wilful to disentitle him to the discretion of being not ejected from the premises in question.
8. ' Both the Courts below have found the appellant to have committed default, inasmuch as, he was required to pay rent for the month from 23rd April, 1972 to 22nd May, 1972 within sixty days, that is, before 23rd July, 1972, and since he had failed to do so before that date, he committed default. It is however an admitted position that the appellant had deposited Rs, 80 with the Rent Controller as rent for the premises on 24th July, 1972 after his application made on 1st July, 1972 for so depositing was allowed by the learned Rent Controller on 22nd July, 1972, and that 23rd July was a Sunday and holiday. That being so, the appellant had to be given adjustment of this amount towards the rent for the premises, and if the appellant's version that he had paid rent to the respondent for 7 days of March and for the next months of April and May, 1972, was not to be believed, that this amount had to be treated as rent for the second month of 22nd April, 1972 to 23rd May, 1972, he having, admittedly, paid rent for the previous first month. So reckoned the appellant cannot be said to have committed default under the Ordinance for the one month in question keeping in view the fact that his application made on 1st July, 1972 to deposit rent in Court, a mode permissible under the Ordinance, was allowed only on 22nd July, 1972 and 23rd July was a Sunday and holiday.
9. ' Mr. Mubarak Hussain Siddiqui, learned counsel for the respondent, however, contended that since the appellant had deposited this amount expressly as rent for the month of June, it could not be treated as rent for the month of 23rd April 1972 to 22nd May, 1972. I do not agree with the learned counsel. The appellant had said so on the basis that he had paid rent to the respondent for 7 days of March and for the month of April and May, but if he was not to be believed in this latter statement, he could not be hit both ways by denying him adjustment of this amount towards the rent for the next month of the tenancy, he having admittedly paid rent for the first month. Further, in any case, even if it were to be assumed that technically the appellant had committed default, inasmuch as, instead of his paying rent on or before 22nd July, 1972, he deposited the rent in Court on 24th July, 1972, the default of 2 days only could not, in the circumstances of this case, be termed as willful, for the appellant having admittedly applied on 1st July, 1972 to the rent Controller for depositing rent in Court and his application having been allowed on 22nd July, 1972 only, and the next date 23rd July, 1972 being a Sunday and holiday, he could only deposit the rent on 24th July 1972 and since he admittedly deposited the rent on 24th July, 1972 it went a long way to show his keenness to pay rent for the premises occupied by him. It is not a case of a tenant who being oblivious of his obligation to pay rent simply defied payment of rent, but this eminently was a case where the applicant was very much conscious of his obligations and had made the application on 1st July, 1972, much before the expiry of 60 days on 22nd July, 1972, and also deposited the rent immediately after he was permitted to do so by the learned Rent Controller on 22nd July, 1972. It is well established by now that even if a tenant is found to have technically committed default, Rent Controller has discretion to refuse ejectment in case of the default being not wilful. Thus, it having been shown above that the default committed by the appellant could not be termed as wilful, he was entitled to the discretion of being not ejected from the premises. Perusal of the orders of both the learned Rent Controller as well as of the first appellate Court would show that this aspect was not duly considered by either of them.
10. ' For the aforesaid reasons, I allow this appeal, set aside the impugned orders and dismiss the eviction application filed by the respondent. In the circumstances I make no order as to costs as the learned counsel for the appellant does not claim it.