' On 30th September, 1969 the respondents filed a petitton for eviction against one Manzoor Ahmad, the predecessor-in-interest of the appellants (hereinafter called the original tenant) in respect of shop No, 51, McLeod Road, Lahore. The shop in question was shown to be in occupation of the original tenant on a monthly rent of Rs,
50. The petition for eviction proceeded on the ground of bona fide personal need of the respondents and damage to the property. The original tenant did not deny the existence of relationship of landlord and tenant, and therefore, the learned Rent Controller on 11th May, 1970 passed an order under subsection (6) of S. 13 of the West Pakistan Urban Rent Restriction Ordinance by observing that the rent up to May, 1970 had been duly paid and that only the future rent was to be paid @ Rs, 50 before 15th of each month. The proceedings continued and the evidence on merits was examined. During the proceedings before the learned Rent Controller, the original tenant died on 18th July, 1972. Before his death an application had been made complaining the non-campliance of the order passed under subsection (6) of section 13 on 9th February, 1972 which was repeated on 8th May, 1972. However with a specific allegation as regards the deposit of rent far the month of August, 1971, the rent for this month having been deposited on 16th September, 1971 an application with this specific default was made on 24th May, 1972. However, these applications were not pursued by the respondent and on 2nd April, 1974 a statement was made by the respondent that he would not like to pursue the applications for the time being. It was on 23rd October, 1974 that another application was made complaining the default in the payment of the rent for the month of August having been paid on 16th September, 1971. The reply to the said application by the heirs of the original tenant was that the original tenant was suffering from Asthma and diabetes, and therefore, he could not deposit the rent. The learned Rent Controller, Lahore vide his order dated 19th December, 1974 struck off the defence of the appellant and ordered his eviction. This order was upheld in appeal by the learned Additional District Judge, Lahore vide his order dated 6th February, 1979 by which the appeal filed by the appellants was dismissed.
2. This appeal raises an important question of law. The point for consideration is whether after the death of the original tenant the landlord could press into service a default which had been committed by the original tenant during his life-time. The effect of making a statement by the respondent on 2nd April, 1972 that he would not like to pursue the application already made including that of 24th May, 1974 in which a specific allegations as regards the non-payment of the rent for the month of August to 16th September, 1971, was made, shall also be required to be considered.
3. The first question seems to be covered by a Division Bench judgment of this Court reported as Sh.
Muhammad Nawaz v. Muhammad Azeem (1). The facts of this case were that the landlord applied for the eviction of his two tenants on several grounds including the default in the payment of rent for 5 months, subletting the premises in part and the landlord requiring the shop for his own use. An order under subsection (6) of section 13 was made and the tenants were directed to deposit the six months rent by 15th June 1959 and future rent before 5th of each month (as was then the prescribed period). In pursuance to this order the arrears of rent were deposited but the rest of the order was not complied with. On 10th September, 1959 an application was made by the landlord for striking off the defence of the tenants, for having not paid the rent for July and August. Syed Fazal Hag, one of the tenants, died on 26th October, 1959 and his legal representatives were brought on record vide order dated 8th June, 1960. Another application was made for a subsequent default. On 8th June, 1960 the defence of the surviving tenants was struck off. Against this order an appeal was preferred to the High Court and it was held that since the right to sue did not survive against the legal representatives they could not be brought on the file. Against this order a. Letters Patent Appeal was filed which was accepted. The Division Bench of this Court considered the definition of the tenant as given in clause (i) of section 2 of the Ordinance and it was observed that upon the death of the original tenant the children become automatically tenants for the purpose of eviction under section 13 of the Ordinance. The relevant observation in this case may be quoted below:
(1) PLD 1961 Lab. 788 "If, therefore, section 13 requires that a tenant may be ejected for non-payment of rent, then the fact that the original tenant has been succeeded by his children will not alter the fact that a default has been made by the original tenant. The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the effect of the default."
' The circumstances where a petition for eviction had been filed after the default had been committed was also taken note of and the relevant paragraph 8 in which the proposition bad been discussed may be again quoted : "8. We respectfully agree with the learned Single Judge that if the proceedings for ejectment had been started after the death of Syed Fazal Haq, his default could not have been availed of against his legal representative but that is so because the landlord took no notice of his default until he lived. It would, therefore, be assumed that he had condoned the default. In the present case, the landlord has taken notice of it and the children are succeeding to a tenancy which is encumbered with litigation under section 13."
4. The learned counsel for the appellant has invoked the said judgment for the above observations on the ground that the application for striking off the defence had been made on 23rd October, 1974 after the death of the original tenant.
5. The learned counsel for the respondents, on the other hand, has submitted that three applications enumerated above had been made earlier. Out of these, two applications were vague but the application dated 24th May, 1972 was specific as regards the allegation of non compliance of the rent for the month of August having been deposited on 16th September, 1971. The statement made on 2nd April, 1974 was to the following effect : {{URDU TEXT}} ' The learned Rent Controller had not passed the order of consigning to record the earlier applications. The subsequent application made on 28th September, 1974 contained the default in the deposit of the rent for the month of August, 1971 as well as other default for the months of January, to March, 1974. Both the Courts below have taken the default of 1971 to be one presisting during the life time of the original tenant and the deposit in respect of other months from January, to March, 1974 was held, to be proper. It was further observed that it was the duty of the original tenant to have furnished the explanation forthwith in respect of default and reliance in this behalf was placed on Abdul Majid v. Saadullah (1) and Ghulam Muhammad v. Mst. Raj Begum (2).
6. The learned counsel for the appellants has only relied on Syed Masood Hussain v. Muhammad Sayeed Khan (3) for the proposition that the provisions of subsection (6) of section 13 being for benefit of landlord the same could be waived by the landlord. The statement dated 2nd April, 1974 is treated as a waiver. So far as the legal contention as laid down in Sh. Muhammad Nawaz v.
Muhammad Azeem as quoted above there is no dispute. The facts of that case were almost identical to that of the present case. The tenant had also died after the default and the observations of the Division Bench are applicable on all fours to the facts of the present case. The only difficulty in the way of the appellants is that the statement made on 2nd April, 1974 cannot be treated as a waiver. The respondents had only stated that they would not like to press the application for the time being and there was no unequivocal statement for consigning the application to record or a statement to the effect that they A had condoned the default. The default related to the period of the original tenant and it was his duty to have furnished his explanation during his life time and the appellants succeeded to that default. The case reported as Syed Masood Hussain v. Muhammad Saeed Khan has, therefore, no application to the facts of the present case. The question that the principle of estoppel operates in respect of the orders passed under subsection (6) of section 13 is not disputed. As regards the sufficiency of the cause there is a concurrent finding of fact which cannot be disturbed in the second appeal. Moreover, the same was also not agitated in this Court and only the legal contention was raised which I have already dealt with.
7. In view of the above discussion this appeal has no force which is hereby dismissed. However, the appellants are allowed four month's time to deliver the vacant possession to the respondents subject to their regularly paying the monthly rent. There will be no order as to costs.
(1) PLD 1963 Quetta 16 (2) D 1962 Quetta 136
(3) PLD 1965 Lah. 11