' This is an appeal filed by Perveez Hameed the tenant of the respondents Syed Liaquat Husain and Syed Qabil Husain, The Rent Controller by his order dated 10-4-1978 ordered the eviction of the tenant/appellant and directed the appellant to hand over the vacant and peaceful possession of the premises to the landlords/respondents within a month. The appeal before the IV Additional District Judge, Karachi was dismissed by an order dated 27-1-1979.
2. The two respondents are owners and landlords of the premises Flat No, 111-A/112, 3/1, R. B.-6/116, 8, Dhanibux Building, Arambagh, Karachi. The appellant was the tenant of the respondents on a monthly rent of Rs, 50 payable in advance. The Rent Application recites that the appellant failed to pay the rent since February, 1974 and onwards. The respondent No, 2 had no residential accommodation for himself and as such he required the premises in good faith for his own residence.
3. The appellant in his written statement before the Rent Controller stated that the respondents' attorney Khawaja Mahfoozur Rehman, Advocate used to collect rent and he had already collected the rent for January, 1974 but thereafter he refused to receive the rents. The appellant personally made several efforts to pay the rent to him and finally he sent a money order dated 12-6-1974 carrying the rent for five months from February, 1974 to June, 1974 but the said attorney refused to receive the money order. He further stated that respondent No, 2 did not require the disputed premises for his personal use and that his claim is mala fide.
4. The learned Rent Controller framed the following three issues "(1) Whether the opponent has committed default ?
(2) Whether the applicant requires the premises for his personal use and the use of his children in good faith ?
(3) What should the order be ?"
' The issue with regard to the default was answered in the affirmative while the issue No, 2 was answered in negative.
5. Mr. Aziz Qureshi Advocate argued on behalf of the appellant while Khawaja Mafooz-ur-Reman Advocate argued for the respondents. The case of the learned counsel for the appellant briefly is that although the rent was not paid from February, 1974 to June, 1974 yet the non-payment was not a default which may be called to be 'wilful and negligent as such. He respondents and he used to collect the rents but from February, 1974 he refused by the attorney. Since he made all the possible efforts to sender the on 12-6-1974 carrying the rent for five months. This money order was also ill for sometime and therefore at the earliest moment he sent a money order the rent but the attorney declined to accept the same. The tenant had fallen has recited the circumstances for the non- payment of the rent. Mr. Khawaja Mahfoozur Rehman, Advocate for the respondents was also attorney of the refused to accept the rents. The appellant personally went to him to offer rents, he was not to be called a wilful defaulter towards the payment of monthly rents.
6. The circumstances of tendering the rent by the appellant was considered by this Court anxiously.
The appellant in his deposition has stated that he used to pay the rent in advance and did not go for the payment of the rent for the month of September, 1973 to June, 1974. He however sent the same through one M. H. Khan. In his written statement the appellant has stated that he personally made several efforts and contacted Khawaja Mahfooz-ur-Rehman the attorney of the respondents but the rent was refused by him. On one hand the appellant avers that he personally made the efforts to pay the rent and on the other hand he states that he sent the rent through Mr. M. H. Khan.
This M. H. Khan has not been examined by the appellant in support of his case. The admitted position would be that the appellant did not pay the rent from February, 1974 and onwards till 12th of June, 1974 on which date he sent the money order. He had fallen ill therefore he could not send even the money order earlier. He took five months to send one money order carrying the rent for five months. The illness is not Substantiated and accounted for fully. It is proved that there was no payment of rent after February, 1974. The money order which was sent after five months does not absolve the appellant from being a defaulter nor does it create the circumstance that he was very anxious to pay the rent and that he left no stone unturned in the efforts to pay the rents. If the rents were refused by the attorney of the respondents then he could have, within 15 days after the expiry of one month, sent the money order. Even if the time is not considered to be 15 days and that it is considered 60 days yet the appellant defaulted towards the payment of rent. The arguments put forward by the learned counsel for the appellant do not sound reasonable and on no account the default was not wilful. The very fact that money order was sent after five months establishes the fact that the default was deliberate and wilful.
7. The learned counsel for the appellant has referred to PLD 1982 Kar. (?) wherein Naimuddin, J.
Held as follows :- "However, the question before me is not 'whether the tender of' rent for several months in lump sum is proper tender or not or a party could contract out of the provisions of law or not but whether the discretion exercised by the first appellate Court on the facts and circumstances of the case is proper or not. It is not disputed by Mr. Shamsi that under the provisions of section 13(2) of the Ordinance, Controller is not bound to order eviction in every case in which default in payment of rent has been proved. Under the said provisions the Controller has ample discretion and the same, no doubt has to be exercised after taking into consideration all the factors. In this case the finding of the Additional District Judge is that the default in payment of rent was not wilful. He has dealt with the circumstances under which the default was committed and I not only share his view but have independently come to the conclusion that in this case the respondent was led to the making of default in payment of the rent, as it was the appellant who had told the respondent that he was busy in preparation of the account and declaration under the Martial Law. I have no doubt that the respondent would have ordinarily followed the course provided by law and would have sent the rent by money order or deposited the same in Court, if he was not told what is stated hereinbefore.
I therefore, find no substance in this ground and accordingly reject it."
' The above authority does not apply to the facts of this case. I am also referred to PLD 1978 Lah.
862. In this case the landlord used to accept rent in lump sum and made the tenant to believe that rent is not payable monthly, default in such a situation was held not to be wilful. I would quote relevant observations of his Lordship Muhammad Afzal Zullah, J. As under "After laying down the above law their Lordshiphs further observed that the Rent Controller could however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In such a situation the default might not be wilful and deliberate and the Rent Controller might not direct eviction : because it is discretionary with the Controller not to direct the eviction, in individual cases, despite the default having been proved. The conclusion that can safely be drawn from the ruling of their Lordships is that although such a practice could not change the terms of tenancy nor the legal liability of the tenant to eviction could be affected by such conduct the same could be utilized for invoking the discretionary power of the Controller to decide against eviction in case the default is not wilful."
8. On the other hand it was observed in the decision reported in PLD 1982 Lah. 386 that the default in payment of rent was a question of fact. Both the Courts below concurrently found default established and no mis reading of the record by Courts below pointed out. Findings of those Courts was not interfered.
9. I am also referred by the learned counsel for the respondent to 1968 SCMR 866. The following passage with advantage may be quoted :- "It is not denied that the petitioner committed default in the payment of rent for June 1983, but it is urged that in the circumstances of the case the default was not wilful and the Courts below ought to have exercised discretion in favour of condoning the delay. It was also pleaded that the respondent landlord was in the habit of receiving rent periodically in lump sum on account of which the default had taken place.
' Both the grounds raised in support of the petition for special leave to appeal have been considered by the High Court and ruled out on good and cogent reasons.
' As to the first contention it is not suggested that there was disregard by the Courts below of any principle governing the exercise of discretion while the second contention was not borne out by the record."
10. The learned counsel is not successful in proving that the default committed by the appellant was not wilful. The circumstances enumerated above suggest otherwise. The appeal has, therefore, no force and it is dismissed accordingly. No order as to costs is made. The appellant to hand over the possession of the premises peacefully within 60 days from the date of this order.