' The appellant abovenamed, being aggrieved by judgment dated 26th February, 1975 of 2nd Additional District Judge, Hyderabad, passed in Civil Appeal No, 38 of 1974, by which he upheld the order dated 25th August, 1972 of the learned Civil Judge and A. C. M., Hyderabad, passed in Rent Case No, 340/66, under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, has preferred this appeal, on the following facts and grounds :
2. Briefly the facts leading to this appeal are that on 7-9-1966, the respondents. In their capacity as landlords, in respect of the premises subject matter of this appeal, had filed a rent application against the appellant, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, with a prayer therein for eviction of the appellant from the said premises, on the ground of default in payment of rent. The learned Rent Controller passed on 15-3-1969 an order directing the appellant to deposit the arrears of rent amounting of Rs, 1,950 before 29th March, 1969 for the period between 6-9-1963 and 28-2-1969. In spite of this clear order the arrears remained unpaid by the appellant. Thus the respondents moved an application under section 13 (6) of the Rent Ordinance, before the Rent Controller, with a prayer therein, that as the appellant has committee default in making the payment of the said arrears of rent in compliance with the order passed on 15-3-1969, the defence of the appellant be struck off and he be directed to hand over the vacant possession of the premises in question to the respondents. This application under section 13 (6) of the Rent Ordinance, was opposed by the appellant, vide his objections dated 18-2-1972 on the plea that the allegations of the respondents regarding default were not coreect. This application of the respondents for striking off the defence of the appellant finally came up for hearing on 24-9-1972, on which date appellant moved an application for seeking adjournment in the matter. The learned Rent Controller dismissed the application for adjournment, yet adjourned the hearing of the application to 25-8-1972. The appellant did not make any bona fide effort to satisfy the lower Court on 25-8-1972 in respect of his plea regarding the deposit of the arrears of rent, in compliance of the order passed on 15-3-1969. Thus the Rent Controller was constrained to rely upon the report submitted by the Nazir, regarding the non-payment of rent by the appellant, and passed the impugned order, whereby the defence of the appellant was ordered to be struck off.
' The appellant abovenamed, being aggrieved by order dated 25th August, 1972 of the learned Civil Judge and A. C. M., Hyderabad, had filed Appeal No, 238/74, which too was dismissed by the learned 2nd Addition District Judge, Hyderabad, vide his judgment dated 26th February, 1975, for the reasons given in the said judgment.
4. The appellant being aggrieved by above-mentioned two orders, has filed this Second Appeal on the ground mentioned in the memo. Of appeal.
5. The first contention that has been raised by the learned Advocate for the appellant before me, was, that default, if any, was condoned by the respondents by implication, as the application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, for striking off the defence of the appellant was moved after the lapse of two years after alleged default. In support of this contention, learned Advocate has relied upon cases in PLD 1965 Lah. 11, PLD 1963 Kar. 777 and PLD 1963 Quetta 18. I see no force in this contention of the learned Advocate, as appellant filed an appeal against the tentative rent order dated 15th March, 1969 and the same was dismissed on 20th February, 1970 only and consequently it cannot be presumed, that respondents had waived and/or condoned the default of the appellant, by implication, as application for striking off the defence was filed for the first time on 21st September, 1971. The authority reported in PLD 1963 Quetta 16, on which the appellant's counsel has relied has no bearing on the facts of the present case at all. The case in PLD 1965 Lah. 11 only lays down, that the landlord may waive the benefit of default clause of section 13 (6), but the said authority does not lay down general principle, that if application for striking off the defence is made late, it should be presumed, that the landlord has waived the benefit of said clause. However, the authority in PLD 1963 Kar. 777 is based on different facts and not applicable at all to the facts of the present case. In my opinion, non-filing of application for striking off defence earlier does not ipso facto amount to waiver of the right, that may have accrued to the respondents, under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, unless such waiver is specifically established by cogent evidence, like acceptance of rent directly from the tenant by the landlord. In the present case, as soon as tentative rent order was passed, the appellant filed an appeal against the said order, which was dismissed on 20th February, 1970 and even thereafter the appellant did not comply with the tentative rent order dated 15th March, 1969 and in fact according to the Nazir's report, as mentioned in the order dated 25th August, 1972 of the Civil Judge and A. C. M. Hyderabad the appellant deposited rent for the month of April, 1969 only, but he failed to deposit the arrears amounting to Rs, 1,950 in accordance with the tentative rent order dated 15th March, 1969. The plea of the appellant before the learned lower Courts was, that he had complied with the tentative rent order dated 15th March, 1969, but the receipts of payment made by him were not available. The learned lower Courts gave opportunity to the appellant to produce such receipts, but he failed to do so. The plea of waiver, it seems was not specificaliy taken before the learned lower Courts, which is evident from the objections filed by the appellant in the learned lower Courts. In view of this, I find no force in this plea of waiver taken by the learned Advocate for the appellant, as appellant has failed to establish waiver on the part of the respondents.
6. The second contention that has been raised by the learned Advocate for the appellant before me was, that two of the original respondents died during the pendency of the ejectment proceedings and their legal heirs were not brought on record and as such the said proceedings abated and consequently the orders dated 25th August, 1972 and 26th February, 1975 of the learned lower Courts were without jurisdiction and are liable to be set aside. I see no force in this contention of the learned Advocate, as the remaining respondents, who were applicants in the original application, according to the learned Advocate for the respondents were the legal heirs of the deceased applicants and the provisions of C. P. C. As such are not strictly applicable to the proceedings under the Rent Ordinance in question. In my opinion, application for eviction of the tenant can be made by one of the several owners (or landlords). In this view, I am fully supported by case of Ghulam Sadiq v. Zainab Bibi (1).
7. The last contention that has been urged by the learned Advocate for the appellant was, that although Civil Judge and A. C. M., Hyderabad was Rent Controller, under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, but while passing order dated 25th August, 1972, he has described himself as Civil. Judge and A. C. M., Hyderabad only and not as a Rent Controller and as such the said order is nullity. I see also no force in this contention of the learned Advocate, as he himself admits, that Civil Judge and A. C. M , Hyderabad in question, was acting as a Rent Controller on the day when he passed the impugned order dated 25th August, 1972 and as such mere omission to mention under his name, his designation as Rent Controller, does not vitiate his said order dated 25th August, 1972.
8. It may further be noted, that the appellant failed to comply with even order dated 8-9-1972 of the learned 2nd Additional District Judge, Hyderabad, passed in Civil Appeal No, 230/74, by which the appellant was directed to deposit all the arrears, within a week and this fact is mentioned in judgment dated 26th February, 1975 of the 2nd Additional District Judge, Hyderabad and this fact is not denied by the learned Advocate for the appellant. In view of the above facts and circumstances, in my opinion, the appellant was a wilful defaulter by hot complying with that tentative rent order dated 15th March, 1969 of the learned Rent Controller, as well as order dated 8.9-1972 of the learned 2nd Additional District Judge, Hyderabad and his plea, that he was not a defaulter cannot be accepted, as the appellant has failed to produce any receipts even before me to show, that he had complied with the tentative rent order dated 15th March, 1969 and/or order dated 2-9-1972 of the learned 2nd Additional District Judge, Hyderabad.
(1) PLD 1979 Lab. 366
9. Therefore, I see no force in the above appeal, which is consequently dismissed. However, the appellant is granted four months time to vacate the premises in his occupation and hand over its vacant possession to the respondents. In view of the facts and circumstances of the above case, I pass no orders as to cost.