1. ' This Second Rent Appeal is directed against the order of the learned 4th Additional District Judge dated 12th August, 1976, by which the order of the Rent Controller dated 25th July, 1974 was set aside and the respondent's application for ejectment on the ground of default was accepted.
2. ' The dispute relates to a residential premises standing on Plot No, 90/F, Block 2, P E C H S., Karachi.
3. The property belonged to the respondent who admittedly was not himself residing at Karachi and had rented out the same to the appellant on monthly rental of Rs, 210. The rent was collected by S. Anwarul Islam in his capacity as Attorney of the respondent, and there is also no dispute that the appellant had been paying rent through the said Attorney. The respondent filed an application for the ejectment of the appellant in the Court of the 5th Civil Judge, Second Class and Rent Controller, Karachi on 17th February, 1973 on the ground of default in payment of rent and damage to the property by misuse. It was stated that the appellant had failed to pay or tender rent ever since 1st February, 1972. The application was resisted by the appellant and although no explanation for the default was furnished in the written statement, he, as per his deposition before the Rent Controller, stated that rent was not paid by him because formerly the same was tendered by him to Anwarul Islam at his residence at 392 P. I. B. Colony, Karachi from where he had shifted without providing any fresh address. The appellant stated that he also used to pay rent through one Syed-urRehman who happened to be a common relative of the appellant and Anwarul Islam, According to the appellant he had last visited the house of Anwarul Islam at 392, P. I. B. Colony in the month of March, 1972 when he was informed that the said Anwarul Islam was no longer residing at the said address. He further deposed that he had enquired about his address from Syed-ur-Rehman also but the latter put him off by saying that Anwarul Islam was not prepared to receive the rent and he will have to vacate the house. In the circumstances, the defence of the appellant was that he was unable to pay or tender rent to the respondent landlord and accordingly he deposited the same in the Court of the Civil Judge and Rent Controller, in Miscellaneous Rent Application No, 37 of 972, on 9th August 1972. In his said application, Exh. 12, it was stated by the appellant that he did not know the address of the Attorney who used to reside at 392 P. I. B. Colony. The learned Rent Controller permitted the appellant to deposit the rent with the Nazir of the Court at his risk observing that such deposit will not absolve him from the effect of default already committed or bind the landlord to accept the same. The only evidence recorded before the learned Rent Controller was that of the Attorney of the respondent and the appellant himself. On the pleadings of the parties the learned Rent Controller framed the following two material issues :
(1) Whether the opponent has committed default ; if so, what is its effect ?
(2) Whether the opponent has diminished the utility of the demised house. If so, what is its effect ?
4. ' On such evidence, as aforesaid, the learned Rent Controller answered both the issues in the negative and dismissed the Rent Application. The respondent took up the matter in appeal before the learned Additional District Judge who, by his order dated 12th August, 1976, came to the conclusion that the appellant had committed default in payment of rent. The other issue with regard to causing damage to the property was, however, decided against the landlord. In the result, the learned Additional District Judge ordered for the ejectment of the appellant, hence this appeal. The only issue relevant for the consideration of this appeal, therefore, is as to whether the learned Additional District Judge was justified on the basis of the evidence in directing the ejectment of the appellant.
5. ' Mr. Naqi Mirza, learned counsel for the appellant, stated that admittedly the rent was collected by the absentee landlord through his Attorney in one of the three modes ; namely, either personally, at his residence at 392 P.I.B. Colony, through Syed-ur-Rehman or was collected by him personally from the appellant. He referred to the statement of Anwerul Islam to show that the said Attorney had admitted that he had shifted from House no. 392 P.I.B. Colony, to another house no 1095, and this fact was not intimated by him to the appellant in writing, though he had done so orally. Mr. Naqi Mirza then referred to the Notice of the respondent-landlord (Exh. 8) dated 24th July, 1974. This Notice was served by the landlord informing the appellant that he was a habitual defaulter and had once again failed to pay or tender rent and other charges as from 1st February, 1972 thereby making him liable for action under section 13 of the Rent Ordinance 1959. The learned counsel pointed out that even in this Notice the address of the respondent-landlord or his Attorney was not disclosed, and this was done on purpose in order to create a ground for ejectment.
6. ' The appeal was strongly opposed by Mr. Salah-ud-Din Malik learned counsel for the respondent, who pointed out that there was admitted default on the part of the appellant as from 1st February, 1972 until the date of the filing of the Rent Application on 17th February, 1973. The learned counsel stated that assuming, though not admitting, that the appellant did not know the address of the Attorney, Anwarul Islam, nothing prevented him from depositing the rent in the Court of the Rent Controller under Explanation to section 13 of the Rent Ordinance which admittedly was done by the appellant after service of Notice dated 24th July, 1974. The learned counsel pointed out that the said Notice was replied by the appellant on 10th August, 1974, as per Exh. 9, and before sending the reply, he had taken care to deposit rent with his application on 8th September, 1974, and all this was just an afterthought, and was done to defeat the case of the landlord who had served him with a Notice pointing out that he was already guilty of default in payment of rent. This fact clearly stands out from the evidence brought on the record, and Mr. Naqi Mirza, learned counsel for the appellant, was unable to satisfy me as to why it was only after the service of Notice that the appellant had chosen to deposit rent with arrears on 9th August, 1974 and not earlier. Surely, if he could deposit the rent on 9th August, 1974 he could have done so earlier also if, as alleged, the respondent's attorney was not to be found or had made himself scarce with some ulterior motive.
7. The order of the learned Rent Controller, by which the Rent Application of the respondent was dismissed, contains hardly any discussion of the evidence and was passed in a perfunctory manner. The learned Additional District Judge, on the other hand, was justified in going into the evidence and arriving at the finding that the case of default against the appellant was established.
8. ' For the foregoing reasons, this appeal has no merits and is, therefore, dismissed with costs.
9. However, at the request of Mr. Naqi Mirza four months time is allowed to the appellant to vacate and deliver possession of the premises to the respondent.