' The appellant abovenamed. Being aggrieved by judgment dated 25th November, 1976, of the learned 1st Additional District Judge, Karachi, by which he set aside the order dated 30th July, 1974 of the XVIIth Civil Judge and Rent Controller, Karachi and rejected appellant's ejectment application No, 165/65, has preferred this appeal on the following facts and ground :-
2. The brief facts as stated in the application are, that appellant is the owner and landlord of the shop No, 25 and respondent is contractual tenant with respect to the shop No,
25. It is alleged, that respondent is in arrears of rent in respect of the above shop from 1-7-1962 onward at the rate of Rs, 20 per month which the respondent has not paid in spite of the repeated demands. The appellant also served the respondent with notice on 16-10-1962. Hence he is a defaulter and is liable for ejectment.
3. The respondent in his written statement had stated, that he is the tenant in respect of the disputed shop, but the appellant had not disclosed what was the contractual rent at the time of tenancy and that the application does not disclose, when did the tenancy commence. He had denied the rate of rent was Rs,
20. He has further averred in the written statement, that the Mosque in question was never in existence in July, 1962 and so the appellant is either unaware of the facts or it has deliberately concealed, that there has been an agreement between not only the respondent tenant but as many as ten other tenants about the rate of rent of these shops, with the result, that the respondent alongwith 10 other shopkeepers brought a suit in May, 1962 for declaration that rent could not be enhanced. That Suit No, 380 stands stayed till this date as being the matter sub judice before the Honourable High Court of West Pakistan. He had denied having committed default in payment of rent. Hence the application be dismissed with costs.
4. On the pleadings of the parties the then Rent Controller settled the following issues on 23-11-1965 :-
(1) Whether the opponent has failed to pay or tender the rent to the applicant as contemplated under section 13 (2) (i) of the West Pakistan Urban Rent Restriction (Second Amendment)
Ordinance, 1962 ?
(2) To what relief, if any, is the applicant entitled ?
5. The learned Rent Controller after taking into consideration the evidence adduced by the parties and after having heard the learned advocates of the parties allowed the ejectment application filed by the appellant, vide its order dated 30th July, 1974 and consequently the respondent above- named filed Appeal No, 418/74 in the Court of 1st Additional District Judge, Karachi, which was allowed by the learned 1st Additional District Judge, Karachi and order dated 30th, July, 1974 of the learned XVIIth Civil Judge and Rent Controller, Karachi was set aside.
6. The appellant abovenamed being aggrieved by the impugned judgment dated 25th November, 1976 of the learned 1st Additional District Judge, Karachi has preferred this appeal on the grounds mentioned in the memo. Of appeal.
' The first contention that has been raised by the learned Advocate for the appellant before me was, that the order of the learned Rent Controller is based on cogent reasons, on the basis of the evidence that was adduced by the parties and the documents produced before him and as such the same has been wrongly set aside by the learned 1st Additional District Judge, Karachi, merely on the ground that since according to learned 1st Additional District Judge, Karachi, the appellants were demanding higher rent and had refused to accept the agreed rent in accordance with the agreement between the parties, and as such the default committed by the respondent cannot be considered to be deliberate or wilful and as such he has wrongly exercised the discretion vested in him in favour of the respondent and set aside the order dated 30th July, 1974 of the learned Rent Controller and dismissed Appellants' ejectment application. In support of this contention of his the learned Advocate for the appellant submitted, that even if the averments made by the respondent are believed to be true, then too he ought to have tendered rent within the period allowed by provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 at least at the rate of Rs, 5 per month, within 60 days, when the rents in question became due. But admittedly respondent did not do so which is evident from the fact, that the respondent for the first time sent money order Exh.
D/5 for Rs, 10 being the rent for the months of July and August, 1962 on 6-10-1962, after the expiry of 60 days for payment of the rents for the said months and as such the respondent was wilful defaulter in respect of payment of rent for these two months, as held by the learned Rent Controller and there were no cogent reasons for condoning the said default and setting aside the order of the learned Rent Controller, as it has been done by the learned 1st Additional District Judge, Karachi and as such the impugned judgment dated 25th November, 1976 of the learned 1st Additional District Judge, Karachi, is liable to be set aside on this ground alone.
8. The learned Advocate for the respondent on the other hand submitted, that respondent had committed no default at all, as admittedly a sum of Rs, 1,125.75 spent by him on the construction of the shop in question, he is entitled to adjust towards the future rents and the said amount on the day when the ejectment application in question was filed was not fully adjusted, in the alternative the learned Advocate for the respondent submitted, that even if it is held that, the respondent committed default in not tendering 50% of the agreed rent of Rs, 10 per month then too on account of genuine dispute between the parties about quantum of rent, in view of the evidence on record, there was no deliberate or wilful default on the part of the respondent, as rightly held by the learned 1st Additional District Judge, Karachi. In view' of this the learned Advocate for the respondent submitted, that the discretion exercised by the learned 1st Additional District Judge, Karachi, in favour of the respondent, for the cogent reasons given by him in his impugned judgment dated 25th November, $76, ought not to be disturbed in this second appeal.
9. I have carefully considered the above submissions made by the learned counsel for the parties and evidence adduced tefore the learned Rent Controller as well through the order dated 30th July, 1974 of the learned Rent Controller as well as impugned judgment dated 25th November, 1976 of the learned 1st Additional District Judge, Karachi.
10. It is clear from the evidence on record, that the original rent agreed between the parties was Rs, 10 per month and the same was to be paid by adjustment of Rs, 5 from the amount spent on the cost of construction by the respondent and the remaining balance of Rs, 5 in cash every month.
The learned Advocate for the appellant has not directly challenged the quantum of rent as determined by the learned 1st Additional District Judge. I further find, that the learned Rent Controller has not specifically decided question of quantum of rent. However, the evidence produced by the parties, specially the statement of D.W. 2 Shamshad Ali, the Moizin of the appellant who used to collect rents from respondent and other tenants and D.W. 3 Muhammad Nasiruddin who was the Secretary of the appellant in the year 1960-61, I find, that the respondent established by their evidence and his own evidence on oath, that he has spent Rs, 1,125.75 on the construction of the shop in his possession and as per agreement between the managemen of the appellant and the respondent, the rent of the shop in question was agreed to be Rs, 10 per month and the same was to be paid by adjustment of Rs, 5 per month from amount spent by the respondent and Rs, 5 per month in cash. In view of this, I see no reason to disagree with the finding of the learned 1st Additional District Judge, Karachi, on these two points, specially as the learned Advocate for the appellant has not challenged these findings of the learned 1st Additional District Judge, Karachi before me even in his arguments. It may also be mentioned, that the West Pakistan Urban Rent Restriction Ordinance, 1959 has laid down the procedure for fixation of the rent of the premises in occupation of tenants and admittedly the said procedure was not followed by the appellant, but instead of that the appellant through the Union Committee obtained orders for charging rent at the rate of Rs, 20 per month from the respondent and the said order in my opinion was not legally binding on the respondent and was without jurisdiction and as such dismissal of the appeal and revision petitions filed by the respondent against the said order on technical grounds and dismissal of the suit for declaration and injunction filed by the respondent and other occupants of the shop in question, on account of default in appearance, does not affect the quantum of agreed rent between the parties, unless the same is enhanced in accordance with the law applicable for such enhancement.
11. In view of my above findings the only question which requires consideration in the light of the arguments advanced before me by both the learned counsel is, whether respondent committed default in payment of rents from 1st July, 1962 up to 30th June, 1965 as alleged by the appellant. If the answer to this question is in affirmative, whether such default was deliberate and wilful. I am convinced from the evidence on record, that appellant was bent upon enhancing the rent of the premises in occupation of the respondent and in this connection they resorted to the steps which were not legally meant for the said purpose and were outside the scope of the rent laws in force, at that relevant time. In view of this I have no hesitation in accepting the averment of the respondent that the appellants refused to accept the rent at agreed rate of Rs, 10 per month from 1st July, 1962, though the same was tendered by the respondent and as such the respendent sent the Money Order for the months of July and August, 1962 on 6th October, 1962, which too was refused by the appellant. Taking into consideration the entire evidence on record, including the documents produced by both the parties, I am of the opinion, that non-payment of the rent by the respondent from 1st July, 1962 to 30th June, 1965 was neither deliberate nor wilful, as rightly held by the learned 1st Additional District Judge, Karachi, in his impugned judgment dated 25th November, 1976 and 1 see no reason to disagree with this finding of the learned 1st Additional District Judge, Karachi for the cogent reasons given by him in his impugned judgment. It may further be noted, that admittedly respondent had spent Rs, 1,125.75 on the cost of the construction of the premises in his occupation, which amount he was entitled to adjust towards the future rents, no doubt by a sum of Rs, 5 per month, as per oral agreement between the parties. But all the same this amount was not a security deposit to be refundable on the termination of the tenancy, but was to be adjusted in future rents. Since this amount was available with the appellant, and was to be adjusted in future rents at worst respondent could be considered to have committed a technical default, even if the version of the appellant is to be believed, that the respondent did not tender the rents due from him from 1st July, 1962, in accordance with the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. But in no case such a default could be considered as deliberate or wilful on the part of the respondent, as a sum of Rs, 915 were still available with the appellant on 1st July, 1962 for adjustment towards the future rents, from the sum of Rs, 1,125.75. This amount Was more than sufficient .To cover the rents due from respondent from 1st July, 1962 to 30th June, 1965 at the rate of Rs, 10 per month and as such I agree with the finding of learned 1st Additional District Judge, Karachi, that there was no wilful or deliberate default on the part of the respondent in not tendering the rents due from him from 1st July, 1962 to 30th June, 1965 and as such I see no reason to interfere with the discretion exercised by the learned 1st Additional District Judge, Karachi in favour of the respondent, by refusing to grant ejectment application of the appellant. No other point was raised and argued before me by the learned Advocate for the appellant.
12. Therefore, in view of my above conclusions, t see no merits in the above appeal, which is consequently, dismissed. However, in view of the facts and circumstances of the case, I would pass no orders as to costs,