1. The facts leading to this second appeal are that on, 12-7-1975 the respondent-landlord applied for ejectment of the appellant tenant on the grounds (i) that he bona fide required the premises for his personal use as well as of his children, and (ii) that the appellant had committed default in paying rent for the months of June and July, 1975. The appellant tenant contested the proceedings and denied both the grounds. On the pleadings, the learned Rent Controller framed the following five issues and both the parties led evidence
(1) Whether the premises in question are required by the applicant for his and his children's own bona fide use?
(2) Whether the tenancy of the opponent was only for 11 months or month to month;
(3) Whether the opponent has committed default in respect of the pay--ment of rent?
(4) Whether the applicant wants to enhance the rent?
(5) What should the decree be?
2. On issue No. I the learned Rent Controller gave a finding against the respondent landlord. On issue No. 2 she gave a finding that after the expiry of the original agreement executed for 11 months the appellant became monthly tenant of the respondent. On issue No. 3 regarding the default, she gave a finding that since the appellant in his deposition admitted that' the rent for each month was ordinarily paid by him on 5th or 10th he committed default since no rent was paid till the filing of the ejectment application on 12th July, 1975. On issue No. 4, her finding was in favour of the respondent-landlord. As a result of finding on issue No. 3 regarding default, she allowed the application and ordered the appellant-tenant to hand over the vacant possession of the premises in question. Appellant went in appeal against this decision of the learned Rent Controller, which was dismissed and the findings of the learned Rent Controller were affirmed. The appellant has now come in this second appeal.
3. The only contention raised by the learned counsel for the appellant --tenant is that no date for paying monthly rent having been specified in the original agreement, the rent for the month of June was payable within 60 days of its becoming due which period did not expire till the end of August and since the ejectment application itself was filed on 12th July, it was premature and was therefore not maintainable in law under the Rent Restric--tion Ordinance which aspect of the case has been ignored by both the Courts below.
4. There is considerable force in the contention. It is an admitted position that no date was fixed in the original agreement to paying monthly rent. It is also not disputed that the agreement, which is in the form of undertaking, expired sometime in July, 1975. It is also .Not disputed that the finding given by the learned Rent Controller on the issue regarding appellant being monthly tenant after the expiry of the agreement was armed by the first appellate Court and was not challenged at any stage including this Court as no cross-objections have been filed. In view of this admitted position, the rent for the month of June was payable within 60 days of its becoming due. Consequently, this application filed on 12-7-1975, much before the expiry of the 60 days, was indeed premature and was not maintainable under the law, as no default had been committed under the law, even if it were to be assumed that period of 63 days was to be counted from 1st June. This vital aspect of the case appears to have been ignored by both the Courts below. The first appellate Court has found that the monthly rent was payable in advance and for this it has relied on the deposition of the respondent-tenant. Perusal of the deposition however, does not support the finding of the Court.
5. For the aforesaid reasons, I allow the appeal with costs and set aside the orders passed by both the Courts below and dismiss the ejectment application filed by the respondent.