By order dated 15.1-1979, passed by the IV Rent Controller, Karachi in Rent Case No. 2362/76, the appellant/tenant was ordered to be ejected on the ground of default in payment of rent. Against the said order, First Rent Appeal No. 120/79 was filed by the appellant which came to be dismissed by the order dated 29-1-1981 of the V Additional District Judge, Karachi. This Second Appeal has been filed by the appellant challenging the aforesaid two impugned orders.
2. The appellant has been the tenant of the respondent in respect of premises No., 11 situated at Safooran Compound, New Kumbarwara, Karachi, at a monthly rental of Rs.
10. According to the respondent, the appellant had not paid rent for 28 months from January, 1974 to April, 1976 when she filed ejectment proceedings in the Court of Rent Controller on 22-5-1976 through Rent Case No. 2362/76. In the said Rent Application, an additional ground of making additions and alterations was also taken by the respondent, but ejectment was not ordered on that ground and the issue regarding that was decided in favour of the appellant. In the written statement dated 22-9-1976 filed by the appellant, the entire plea of the appellant as regards the default in payment of rent is contained in para. 2 of the written statement, which is reproduced hereinbelow;---- "Para. 2 : That the contents of para. 2 of the application are false and hence denied. It is submitted that this opponent had always paid rent regularly for which he has in his possession due rent receipts. But subsequently the applicant for ulterior motive namely to get the opponent ejected from the premises in the case started issuing rent receipts of the rent paid from the month of October, 1973 to April, 1976 and therefore for precautions sake deposited the rent of the said period into this Honurable Court. It is therefore denied that the opponent has committed any default as alleged."
From the above defence of the appellant, his case appears to be that prior to October, 1973 for rent paid by the appellant receipts were issued by the respondent but from October, 1973 to April, 1976 although rent was paid by the appellant, but for ulterior motive receipts were not issued by the respondent and, therefore, "for precautions sake deposited the rent for the said period" with the Rent Controller. (It may be pointed out that in para. 2 of the written statement of the appellant there is some typing mistake, and the defence of the appellant was as mentioned in the .Previous sentence and this is confirmed from para. 5 of the memo. Of appeal before this Court.) No other plea was taken in the written statement in respect of the allegation of default in payment of rent.
However, in his deposition before the Rent Controller, the appellant took a new plea that in the year 1975, the property to question was sold by the respondent to one Fateh Muhammad Brohi and, therefore, the appellant paid rent to that person up to March, 1976, but when the respondent informed him that she was still the owner, the appellant started paying rent to the respondent and also asked her to give receipts, but she refused to issue receipts, where after the appellant started depositing the rent with the Rent Controller in Miscellaneous Rent Case No. .1735/76 Exh. B/l, which was produced by the appellant in evidence, show the first payment of Rs. 300 having been deposited on 14-4-1976 by the appellant with the Rent Controller and then he deposited Rs. 10 per month. The deposit of Rs. 300 in lump sum admittedly shows that it was rent for 30 months at the rate of Rs. 10 per month and was for the period of -30 month expiring in March or April, 1976.
3. Mirza Abdul Rashid, learned counsel for the appellant, has contended that even if it is admitted that the rent for 30 months was paid in lump sum through deposit made on 14-4-1976 with the Rent Controller, and even if this is taken as a "default" in the payment of rent, or in the present case when the ejectment application was filed on 2Z-5-1976 no amount was due as rent from the appellant to the respondent, the default could not be treated as "wilful" and the Rent Controller should have exercised the discretion in favour of the appellant. According to learned counsel, the fact that there was no previous default and this default of 28 months was the first default the plea of the appellant that he had paid rent to the respondent, the statement of the appellant in his evidence that he was given to understand that the property had been sold to Fateh Muhammad Brohi and the fact that there was no earthly reason why the appellant should not have paid rent to the respondent, are such facts and circumstances in which the ejectment applica--tion of the respondent could not have been granted, and the Rent Controller in any case, should have exercised the discretion in favour of the 'appellant if he was of the view that technically a "default" had been committed.
4. In support of his contention that the discretion should have been exercised in favour of the appellant/tenant in the instant case, learned counsel has relied upon the following judgments/orders :-
(a) Case of M. E. Patel v. Tajamul Hussain, NLR 1980 Civil Kar. 526 ;
(b) An unreported decision of a learned Single Judge of this Court in Second Appeal No. 448 of 1969 ;
(c) The admission order dated 29-9-1980 of a learned Single Judge of this Court in F. R. A. No. 575 of 1980.
5. There is a concurrent finding of fact by the Rent Controller as well as the first Appellate Court that there is a wilful default in the payment of rent by the appellant. However, as observed earlier, according to learned counsel for the appellant, the default in question cannot be treated as wilful default and the two Courts below acted illegally in coming to the said conclusion. Learned counsel has reported to the case in NLR 11980 Civil 526 decided by a learned single Judge of this Court. In that case, the Rent Controller had come to the conclusion that the tenant had committed wilful default but in first appeal, the Additional District Judge accepted the version of the tenant and set aside the order of the Rent Controller. In second appeal filed by the landlord the learned single Judge did not interfere with the finding of the first appellate authority and' dismissed the second appeal. In para. 6 of the said judgment, the learned Single Judge observed as follows :----- "Para. 6. With regard to the point that the respondent had failed to prove his assertion that he had tendered the rent to the attorney, it was submitted by Mr. Muhammad Shafi that this plea was not establi--shed as the respondent did not give the name of attorney, whom be had approached and therefore there was only the word of the respondent against the word of the appellant's attorney.
However, in my opinion, the submission relates to the appreciation of evidence which is beyond view by the High Court in second rent appeal. As rightly submitted by Mr. Mustafa Lakhani, the appreciation of evidence was a matter for the Appellate Court and the High Court should not interfere even if another view was possible."
The said judgment does not support the contentions of-the learned counsel in the instant cases as not only, the facts in the reported case were clearly distinguishable but in that case, the learned single Judge of this Court declined to interfere with the order of the first appellate authority on the ground that in second rent appeal, the. High Court would not- go into the appreciation of the evidence by the first appellate authority.
The other judgment relied upon by Mr. Abdul Rashid Mirza, learned counsel for the appellants, is the unreported judgment of a learned single Judge of this Court in Second Appeal No. 438/69. In that case also, the Rent Controller had granted the ejectment application-filed by the landlord, but the first appellate authority accepted the appeal of the tenant, set aside the order of the Rent Controller and refused ejectment of the tenant. In the circumstances, the Second Appeal came to be filed in this Court which was dismissed by a learned Single Judge of this Court by judgment dated 7-5-1976. In that case, arrears for 10. Months were deposited by the tenant through a miscellaneous application with the Rent Controller and thereafter the tenant twice deposited further amounts on two subsequent dates before the ejectment application was filed by the landlord. Referring to the judgment of the Supreme Court of Pakistan in the case of Fida Hussain v.
Muhammad Ibrahim (1972 5 C M R 262) the learned Single Judge observed that it could not be disputed in view of the aforesaid judgment of the Supreme Court that the tenant had committed "default" within the meaning of the Rent Ordinance, which could not be wiped of by the subsequent deposit of rent by the tenant, but then went on to observe as follows :- "The next question of no mean importance that remains to be considered is whether the default committed by the respondent (tenant) was wilful to call for ejectment of the respondent, for, it cannot be disputed that in spite of default having been committed Rent Controller has been vested with the discretion to condone the default, if it is found not to be deliberate, depending on the circumstances of each case."
For this view, the learned Single Judge relied upon the observation made by the Supreme Court of Pakistan in the case of Muhammad Alam v. Noor Muhammad (1973 SCMR 606). In the unreported judgment in Second Appeal No. 448/69, the learned Single Judge observed that apart from the three deposits made by the tenant with the Rent Controller prior to the filing of the rent applica-- tion by the landlord, the first appellate authority had accepted ,the version of the tenant that the landlord had himself refused to receive the rent. In the circumstances, the learned Single Judge declined to interfere with the order of the first appellate authority further observing that if the authority below had exercised its discretion vested in it by law, it would not be appropriate for the second appellate Court to interfere with it unless it was found that it had been exercised arbitrarily or capriciously: The facts in the unreported judgment of the learned Single Judge are distinguishable from the instant case and the judgment in that case also does not support the contention of the learned counsel for the appellant in the instant case.
Finally, learned counsel for, the appellants relied upon the order of a learned Single Judge of this Court admitting a First Rent Appeal being F. R. A. 575 of 1980. It is first to be noted that the said admission order has been passed while admitting a First Appeal, whereas, in the' instant case, which is a Second Appeal, learned counsel is assailing the concurrent findings of the Courts below on the question of wilful default having been committed by the appellants. Further, in the instant case, in the written statement, no plea was taken that the premises in question had been sold by the respondent to another person, to whom the appellant had started making payment of rent. The so-called purchaser was neither summoned as a witness nor any rent receipts issued by him produced by the appellant. The two Courts below have accepted the version of the respondent that rent for the period in question was not tendered or paid by the appellant.
6. In the facts and circumstances of the present case, a case of wilful default has been made out.
The two Courts below have exercised their discretion in accordance with law and I do not see any reason to interfere with the orders passed by the two Courts below. This Second Appeal is accord-- ingly dismissed in limine. The appellant is granted time till 31st December, 1981 to vacate the premises.