This appeal was filed by Safdar Ali Ghauri and others against Sh. Maqbool Elahi who has since died and is represented by Sh. Javed Maqbool and another. Sh. Maqbool Elahi had made an application for ejectment of Muhammad Ali Ghauri who was predecessor-in-interest of the appellants.
Muhammad Ali Ghauri expired during the pendency of the application whereupon the appellants were impleaded in his place. Ejectment of the appellants was ordered by a Rent Controller of Sialkot on, the ground that the premises in dispute were need by Sh. Maqbool Elahi for personal use and that there was default in the payment of rent. The first appeal preferred by the appellants against the order of the learned Rent Controller was dismissed by the District Judge, Sialkot, and therefore, they have come up in second appeal to this Court.
2. It is not disputed that the entire rent in respect of which default was alleged in the present case was either paid to the landlord, or was deposited with the Rent Controller in time. It was, however, pleaded that since the rent paid to the landlord was not paid in time it amounted to default in the payment of that rent. Assailing this view it was contended by learned counsel for the appellants that if the late payment of rent is accepted by the landlord it amounts to the condonation of delay, by him and thereafter he cannot turn round and seek ejectment of the tenant on the basis of delay.
In this connection he placed reliance on Syed Riaz Ali v. Shabbir Ahmad Khan (1971 SCMR 598), Muhammad Alam v. Noor Muhammad (1973 SCMR 606) and Muhammad Bashir v. Muhammad Iqbal (1980 CLC 1077).
3. On the other hand, it was urged by learned counsel for the respondents, namely, Legal Representatives of the landlord (Sh. Maqbool Elahi deceased), that delay in the payment of rent to the landlord amounted to default in the payment of rent which could constitute a ground for ejectment notwithstanding the fact that the late payment of rent was accepted by the landlord.
4. In the cases cited above it was clearly laid down that when delayed payment of rent is accepted by a landlord the default in this behalf is condoned by him. In the absence of any authority to the contrary, therefore, I agree with learned counsel for the appellants that delay in the payment of rent, received by the landlord in the present case, had been condoned by the landlord by receiving that rent and, therefore, that very delay could not be pressed into service for securing ejectment of the tenant or his successors-in-interest. In this view of the matter, the finding of the two Courts below on the issue of default is reversed.
5. While dealing with the question of personal need, without conceding shat finding regarding the personal need of Sh. Maqbool Elahi was correct, it was pointed out by learned counsel for the appellants that according to the statement of Muhammad Saeed (R. W. 3) the premises were needed by a Limited Company, namely, Basco Ltd., but the need of that company was not recognised by law. In this connection, he invited my attention to Messrs Franksons & Company v.
Mian Muhammad Hussain (P L 11973 Lah. 275). It was also urged by learned counsel for the appellants that since Sh. Maqbool Elahi, who had launched ejectment proceedings on the ground of personal requirement, had died his need has since disappeared and, therefore, the same cannot be taken into account for upholding the order of eviction. In addition, it was maintained by him that if the Legal Representatives of Sh. Maqbool Elahi require the premises in question for their own use, the case may be remanded to the learned Rent Controller for holding an inquiry into the question of their requirement. In this connection, reliance was placed by him on Abdur Rehman's v.
Fazal Karim and another (1980 SCMR 758). At the stage of appeal it was also disclosed by the appellants, by means of an application, that a trust has been created in regard to the property in dispute and, therefore, legal representatives of Sh. Maqbool Elahi could not have the property for personal use.
6. In reply, it was submitted by learned counsel for the respondents that Sh. Maqbool Elahi required the premises in dispute for himself and not for Basco Limited. It was also maintained by him that after his death the premises were needed by his Legal Representatives (respondents) for their own occupation. He was not in a position to admit or deny that a trust had been created qua the property in dispute.
7. In view of what has gone above, I feel that question of personal use needs to be enquired into afresh due to the death of Sh. Maqbool Elahi, the alleged creation of trust in regard to the property in dispute and the g alleged need of Basco Ltd. 1, therefore, reverse the finding of the two tribunals below on the issue of personal need also and remand the case to the learned Rent Controller for fresh decision of the ejectment application after recording evidence of the parties on the following additional issues :- "(1) Whether the property in dispute is required for Basco Limited or the legal representatives of Sh.
Maqbool Elabi. If so, what is its effect ?
(2) Whether a trust has been created in respect of the property in question. If so, with what effect ?"
8. Resultantly, the orders of the two tribunals below are set aside and the case is remanded with the directions given above. The appeal is disposed of accordingly with no order as to costs.