' Appellant above-named, being aggrieved by judgment dated 12th March, 1981, passed by the learned 11-Additional District Judge, Karachi in 1st Rent Appeal No, 481/76 by which appellant's said appeal was dismissed and order dated 27-11-1976 of the learned Rent Controller passed in Rent Case No, 472 of 1964 was confirmed, has preferred this appeal on the following facts and grounds :-
2. Briefly, the case of the respondent as put up by him before the learned Rent Controller was, that he is the owner/landlord of the said shop, which is given on rent to the- appellant since November, 1963 at the rate of Rs, 50 per month, which appellant has failed to pay since April, 1963 and has therefore committed default in payment of rent. It is said that the appellant has materially impaired the value and utility of the said shop, as such, he may be ejected from the same.
Whereas, appellant by his written statement has denied the case of the- respondent and has stated that he took the said shop on rent from April, 1961 at the rate of Rs, 35 per month and has paid Rs, 1,000 in advance. That in November, 1963 an agreement was executed, whereby the rate of rent was increased to Rs, 50 per month. It is said that appellant has paid rent up to July, 1964. Then, it is also said that after April, 1964 respondent has been demanding the rent at the rate of Rs, 80 per month to which the appellant did not agree, as such, respondent asked him to vacate the said shop. And, in July, 1964 appellant is said to have offered cheque for rent before many persons, which was not accepted by him. In the end, he has prayed for dismissal of the rent case.
3. On the pleadings of the parties following issues were framed by the learned Rent Controller :-
(1) Whether the opponent/appellant committed default in payment of rent?
(2) Whether the opponent/appellant has committed acts injurious to the property in question and has diminished the value and utility of it?
(3) Whether the appellant/respondent needs the property in question for his bona fide use ?
(4) What should the order be ?
4. In support of case, respondent examined himself at Exh. 4 and Abdul Wahid in his support. Both the witnesses have not been cross-examined by the side of the appellant. Whereas, in defence only appellant was examined at Exh.
6.
5. The learned Rent Controller after taking into consideration the evidence adduced by the parties granted respondent's ejectment application on ground of default only, vide his order dated 27th November, 1976. The appellant abovenamed being aggrieved by the impugned order dated 27th November, 1976 of the learned Rent Controller filed Rent Appeal No, 481/76, in the Court of II- Additional District Judge, Karachi, which was dismissed by the said learned IInd Additional District Judge, vide his judgment dated 12th March, 1981 and consequently appellant abovenamed has preferred this II Appeal on the grounds mentioned in the memo. Of appeal.
6. I have heard the learned Advocate for the appellant and have gone through both the impugned order and the judgment. The respondent and his Advocate were called absent on 20th March, 1982 when I heard the above appeal.
7. The ejectment application' in question was filed on 8th July, 1964, in which default was alleged from April, 1963. However in his statement respondent claimed default from April, 1964, only and as such the learned Rent Controller came to conclusion, that appellant had committed wilful default from April, 1964 only, which means, that on the date when ejectment application was filed, appellant was in default of rent for the month of April, 1564 only. The only defence raised for non- payment of rent by the appellant was, that he had paid rent up to July, 1964, by cheque in presence of the witnesses. But respondent refused to accept the same. It may be noted, that appellant produced no witness in support of this contention of his nor he cross-examined the respondent at all. In view of this, evidence of respondent on this point remained unrebutted and consequently the learned Rent Controller came to the conclusion, that appellant was wilful defaulter and was not entitled to exercise of discretion in his favour and as such granted ejectment application and this order was upheld by the first appellate Court.
8. The learned Advocate for the appellant submitted, that since default if any, committed by appellant was for one month, only, the learned Rent Controller ought to have exercised discretion vested in him, in favour of the appellant, as this was the only default committed by appellant since he became tenant in 1963, but both the learned Rent Controller and first Appellate Court refused to do so, for no reasons whatsoever. In support of his contention the learned Advocate for the appellant relied upon cases reported in PLD 1968 Quetta. 45, 1980 CLC 360, PLD 1965 Lah. 23, 1976 SCMR 459, PLD 1966 Kar. 456 and PLD 1971 Kar. 739 and submitted, that order dated 27-11-1976 of the learned Rent Controller and judgment dated 12th March, 1981 of the learned Hnd Additional District Judge, Karachi be set aside and default of one month be condoned in exercise of the discretion vested in this Court, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, as appellate Court.
9. I have carefully considered the above submissions made by the learned Advocate for the appellant and have gone through R & P of the learned trial Court and impugned order and judgment. I have also taken into consideration the authorities cited by the learned Advocate for the appellant. I have no doubt from the evidence on record, that 'appellant committed wilful default in payment of rent for the month of April, 1964. The only question which requires consideration is whether in this second appeal, this Court could exercise discretion in favour of the appellant, in face of refusal of the learned Rent Controller to do so, and dismiss the respondent's ejectment application, on the basis of facts and circumstances of the case on record.
10. I have given my careful consideration to above question and since default committed by the appellant is only in respect of the month of April, 1964, this is a fit case for exercise of discretion in appellant's favour as it is obvious from the ejectment application in question, that respondents sought ejectment of the appellant on various grounds, but he failed to substantiate any other grounds and as such the contention of the learned Advocate for the appellant, that respondent refused to accept the rents from 1st May, 1964, as he was interested in ejecting the appellant at all cost, has some force. Further it may be noted that this is the only default alleged against the appellant since 1963, when he became tenant. In view of this I would allow the above appeal and set aside impugned order dated 27-11-1976 of the learned Rent Controller and impugned judgment dated 12th March, 1981 of the learned IInd Additional District Judge, Karachi and dismiss respondents' ejectment application, even on the ground of default, by exercising discretion vested in this Court under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, as appellate Court, under the provisions of C. P. C., by refusing to grant the said ejectment application, in view of above reasons. However, in view of the facts and circumstances of this appeal, I would pass no orders as to costs.