1. This first rent appeal is directed against the order of Rent Controller dated 4-10-1980, whereby he dismissed the application of the appellant; landlord. The application was instituted on the grounds of default, subletting and impairing the value and utility of the building. On all the three grounds the Rent Controller found against the appellant and dismissed the application.
2. I have heard Mr. G. H. Abbasi, Advocate for the appellant and Mr. Shamsuddin Memon, Advocate for the respondent.
3. The default in the application was alleged in respect of the months of May,. June and July, 1979. The monthly rent of the premises is admitted to be Rs. 100 per month and in paragraph 3 it is stated that the rent in respect of the premises is payable in advance on first of every English calendar month. This averment in the application has been admitted in the written statement filed on behalf of respondents. The respondents however in written statement as well as in evidence took the plea that the appellants used to collect the rent for 3 to 4 months at a time and that he had offered the rent for the months of May, June and July, 1979 which was refused and therefore he remitted rent for these months on 5th of July, 1979 which was refused by the appellant. The Rent Controller in holding that the default committed by the respondent was not wilful and deliberate observed that it was nowhere alleged by the appellant in his application for eviction that prior to the period of May, 1979 to July, 1979 he committed any default in payment of rent and he accordingly exercised discretion in favour of the respondents and refused to make a order of eviction on that ground. Mr. G. H. Abbasi, learned counsel for the appellant contended before me that in terms of section 13 (2)
(i) of the West Pakistan Urban Rent Restriction Ordinance, 19'19, in cases where the rent is to be paid by a specified date the default is committed if the rent is not offered within 15 days of the date specified for such payment. In paragraph 1 of ejectment application it is stated by the appellant that the rent in respect of the premises was payable in advance on first of the each month according to English calender and this averment made in the application was admitted by the respondents and therefore rent for the months of May June, and July, 1979 should have been paid on or before 16th of May 16th of June, and 16th of July, respectively. There is admittedly no default in respect of month of July, 1979 as rent appli--cation was filed on 4-7-1979. The learned counsel for the respondents contends that efforts were made by the respondents to pay rent for the months of .May and June, 1979 but the appellant deliberately refused to accept the rent. He accordingly contended that in these circumstances the Rent Controller was justified in exercising the discretion in favour of respondent in refusing to make an order of eviction against him. I have gone through the evidence on record and it appears that the stand taken by the respondent before the Rent Controller was that the appellant used to collect rent for 3 to 4 months at a time. However no evidence was offered at the trial in support of this plea. In the cross-examination of appellant's witness, it was suggested that in the month of May, 1979 the appellant demanded increase in the rent which was not accepted by the respondents and the present application for eviction was filed.
4. Although it has been stated in the evidence of the respondent that he made efforts to pay rent for the months of May and June, 1979 which was not accepted by the respondent but this bare statement of respondent is not supported by any other evidence and circumstances of the case.
5. The appellant's witness categorically denied the suggestion made to him in evidence by respon-- dent and in view of the suggestion given to appellant's witness in cross---examination that appellant had demanded increase in rent which was refused by the respondent, this evidence cannot be relied. There is nothing on record to show that after the rent was allegedly refused to be accepted by the appellant the respondent either tendered the same through money order or deposited it with the. Rent Controller as required under the law. In view of the fact that the rent in respect of May and June, 1979 was admittedly sent by money order on 5-7-1979 the respondent was in default in payment of rent for two months and unless it was shown that he was prevented from tendering the rent for reasons beyond his control the consequences for default would follow.
6. The fact that the respondent prior to the period of default alleged against him had not committed any default was not relevant to prove that default committed by him for these months was not deliberate and wilful. After going through the evidence on record I am satisfied that the Rent Controller did not exercise the discretion properly in refusing to make the order of ejectment against the respondent in these circumstances. 1 accordingly reverse the finding of the Rent Controller on this issue and held that the respondents had committed default in payment of rent for the months of May and June, 1979,