1. ' The appellant has challenged the orders of courts below dismissing the ejectment application of the appellant filed on the ground of default in payment of rent.
2. The appellant instituted rent application No, 295 of 1972 on 5-2-1972 before the 1st Rent Controller, Karachi, alleging default in payment of rent for the period from 1-5-1971 to 31-1-1972. Prior to the institution of this application the appellant had filed another Rent Case No, 1323 of 1971, alleging default from 1st November, 1970 till 30th March 1971, in which the respondent took the plea that no notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was served on him before institution of the case. It appears that during the pendency of frent case No, 1923 of 1971, on 18th October, 1971 the appellant served notice on the respondent under section 13-A of the Ordinance and after expiry of the period of 30 days filed rent case No, 295 of 1972. The respondent in his written statement filed in rent case No, 295 of 1972, admitted receipt of notice dated 18-10-1971 but asserted that he had no intimation about the death of Mst, Amtul Razzaq on whose death the property devolved on the appellant. The respondent further stated in his written statement that he never paid any rent to the appellant and that it was the usual practice of the previous landlady's rent collectors that they used to collect the rent for several month at a time.
2. ' The Rent Controller, after recording the evidence of parties came to the conclusion that there was no default in payment of rent as the rent was being paid to Mr. Sattar, Mr. Shuja and Mr. Abid, the Rent Collectors of previous landlady Mst. Amtul Razaq, and that rent from November, 1970 to April, 1971 was realized at a time through distress warrant proceedings while from May, 1971, onward the rent was deposited in Court. A passing remarks was also made by the Rent Controller in his judgment that the respondent had stated in his evidence that the rent collectors of the landlady used to take rent for several months in lump sum. The findings of Rent Controller that there was no default on the part of respondent is contrary to the evidence on record. The admitted position in the case is that on the date of institution of rent case No, 295 of 1972, the respondent was in arrears of rent from 1-5-1971 to 31-1-1972. The respondent no where in the cross-examination of appellant suggested that there was any practice of collecting rent for 3 to 4 months at a time in lump sum.
3. The respondent did not produce rent receipt in evidence to show that the rent of premises was recovered in lump sum by the previous landlady or the appellant. The only question suggested to the appellant in cross-examination was that the witness was not aware of the practice for recovery of rent followed by the previous landlady. The learned counsel for the respondent attempted to argue that in view of the admission of appellant that he was not aware of the practice followed by the previous landlady for recovery of rents, the burden of proving that the rent was not collected in lump sum shifted on appellant, has no merit. The plea that there was practice on the part of landlady to recover rent in lump sum for several months together was raised by the respondent and therefore, the burden of proving the same lay entirely on him. The respondent did not discharge this burden and I fail to understand the reasoning adopted by the Rent Controller in reaching conclusion that there was no default on the part of respondent. The Rent Controller, completely ignored the statement on oath made by the appellant before him and also overlooked the admitted notice dated 18th October, 1971 served on the respondent by the appellant before institution of the rent case intimating about the transfer of property in his favour and demanding payment of rent. It is equally disappointing that the first appellate authority who heard the appeal against the above order of Controller reached the conclusion that the respondent was never intimated or made aware of the death of Mst. Amtul Razaq, the previous landlady, while holding that respondent was not a defaulter. In reaching this conclusion the first appellate authority completely ignored the notice under section 13-A of the Ordinance (Exh. 5-A) which was not only admitted by the respondent in his written statement but was duly proved in the evidence.
4. Paragraph 2 of the notice (Exh, 5-A) is as follows:- "That Mst. Amtul Razaq the owner of the building has died and the ownership of the building including the tenement in your occupation has exclusively devolved upon our client by inheritance."
5. ' By overlooking the above important piece of evidence the first appellate Court reached the conclusion that respondent was not aware of the death of Mst. Amtul Razak which was contrary to the evidence on record. The two Courts below not only misread the evidence in the case but the findings were arrived at contrary to the admitted pieces of evidence. There is nothing in the evidence to show that the respondent was prevented by any superior force to tender the rent for the period from 1-5-1971 to 31-5-1972. The argument of learned counsel for the respondent that there was an earlier application for ejectment filed on the ground of default was not maintainable, has no substance. The earlier application No, 1323 of 1971 filed by the appellant against the respondent, it is admitted before me, related to a different period of default. The present application was filed after about 3 months of the service of the notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, and there was clear default on the part of the respondent in payment of rent for the aforesaid period. I accordingly accept this appeal, set aside the order of the Court below and direct the respondent to hand over possession of the premises within four months from today subject to the condition that the respondent shall continue to deposit monthly rents in Court in accordance with the order of Rent Controller. The appellant shall be entitled to costs throughout.