1. ' This second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is directed against the two concurrent judgments of the Courts below holding appellant as defaulter in payment of rent and directing his eviction from the premises in his occupation.
2. ' The admitted position in the case is that under a rent agreement, dated 14-5-1967 the respondent let out southern portion of ground floor premises on Plot No. 2/172-Q, PECHS, Karachi on monthly rent of Rs.250 plus Rs.10 as water charges. On 29-8-1967 the appellant filed an application under section 4 of Ordinance, No. 6 of 1959, which was registered as Case No. 1522/67 for fixation of fair rent of the premises in his occupation. By about the same time the respondent also instituted a Rent Case No. 3197/67 on the ground of default against the appellant alleging default in payment of rent. Both the cases were later on withdrawn by application dated 18-3-1970 and in the withdrawal application it was stated that the parties have settled that the rent of the premises in occupation of the respondent will be Rs. 225 per month. After withdrawal of the rent cases mentioned above the appellant remitted a sum of Rs. 235 being the rent and water charges for the period from 18-3-1970 to 17-4-1970 which was received by the respondent on 16-5-1970. However, it is an admitted position that thereafter no further rent was either paid or remitted by the appellant whereupon on 7-1-1971 the respondent instituted Rent Case No. 114/71 alleging default in payment of rent and water charges from 17-4-1970 upto 17-1-1971. The appellant in his written statement filed in the above rent case contended that he did not commit any default in payment of rent. He also alleged in his written statement that as a result of a compromise between the, parties fixing the fair rent at 225 the respondent had agreed to adjust Rs.35 per month from the future rent and thus the total amount which the appellant was entitled to get refund from the respondent comes to Rs.1,190.
3. The following reply was made to the allegation of default alleged against the appellant in paragraph 2 of the written statement filed by the appellant:-
2. "That para 2 is admitted in part but the rent of Rs. 225 were agreed from the day of occupation. In addition it is submitted that the opponent had also filed a rent application under section 4 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for the fixation of fair rent. That the applicant feared that the rent will be reduced and hence requested the opponent to make a compromise and also the applicant withdrew the R.C. application No. 3194/67 and it was mutually agreed and compromises that the fair rent is fixed at Rs. 225 inclusive of everything and it was also agreed that the applicant will return the amount of Rs. 35 per month which the opponent has been praying in excess since the day of the occupation. That the total amount which has to be refunded by the applicant to the opponent comes to Rs.1,190 which has not been refunded so far."
4. ' The rent controller after recording evidence of the parties disbelieved the assertion of the appellant that there was any agreement between the parties for adjustment of the amount at the rate of Rs. 35 per month as alleged by the appellant or that there was any over payment made by the appellant as contended. In analysing the entire evidence produced by the parties before the rent Controller the learned Court came to the conclusion that the default committed by the appellant in not tendering the rent for the period claimed in the application was wilful and he accordingly passed an order directing him to vacate the premises and hand over its possession.
5. The First Appellate Court also concurred that the Rent Controller came to the conclusion that the default committed by the appellant was wilful and deliberate and maintained the order of the Rent Controller.
6. ' Mr. Muhammad Shari!, the learned counsel for the appellant has raised two-fold contentions in this appeal before me. It is firstly contended that the two Courts below failed to take into account that the sum of Rs. 225 per month agreed by the parties in the proceedings which were filed under section 4 of the Ordinance amounted to fixation of fair rent and therefore the appellant under the law in view of the provisions of section 6(c) of the Ordinance was automatically entitled to the adjustment of the rent and therefore there was no default on the part of the appellant if the excess amount paid by the appellant is adjusted towards the claim of arrears of rent made in the rent application filed by the respondent. In the alternative the learned counsel contended that the two Courts below failed to take into consideration that under section 13(2)(i) of the Ordinance VI of 1959 the Rent Controller or the First Appellate Authority were not bound to make an order of eviction against the appellant even if non-payment of rent alleged against the appellant was proved. It is accordingly contended by the learned counsel that as the learned Courts below while maintaining the order of ejectment against the appellant failed to advert to the question of discretion the order passed by them are void and therefore should be set aside in this appeal. None of the above contentions raised by the learned counsel for the appellant has any substance. Firstly Rent Case No. 1522/67 filed by the appellant for fixation of fair rent was withdrawn and no order was passed by the Court fixing the fair rent of the premises in terms of section 4 of the Ordinance. The learned counsel for the respondent has drawn my attention to the joint application of the parties filed in Rent Case No. 1522/67 and the Order of Rent Controller passed thereon which is as follows:- "IN THE COURT OF VII CIVIL JUDGE, FIRST CLASS, KARACHI.
7. Before: Mr. Manzoor Ahmed E. Shaikh, VII Civil Judge, 1st Class, Karachi. Rent Case No. 1522 of 1968.
8. Muhammad Ashraf son of Firozuddin, Muslim, adult, resident of 2/172 Q, P.E.C.H.S. Karachi....Applicant. versus Hamid All son of Ahmed Ali, Muslim adult, resident of 2/172 Q, PECH Society, Karachi. ............ Opponent.
9. APPLICATION FOR WITHDRAWAL OF CASE.
10. It is prayed on behalf of the applicant that this Hon'ble Court may be pleased to allow the applicant to withdraw the above case and dismiss the same with no order as to costs, as the parties have agreed that the rent will be Rs.225.00 p.m. (Rupees two hundred and twenty five only)
11. Karachi Dated 20-1-1970 Sd/-Illegible Sd/-Illegible 18-3-1970 Opponent. Applicant Sd/-Illegible Applicant Advocate for the Applicant Sd/-Illegible Advocate for the Opponent.
12. "Parties and their counsel present and admit contents. Matter stands dismissed with no order as to costs.
13. (Sd.)
14. (Manzoor Ahmed E. Shaikh), VI. Civil Judge, 1st Class, Karachi."
15. 'A perusal of the above order passed by VI Civil Judge and Controller on the application of the appellant for fixation of fair rent will show that the application was. dismissed and no rent was fixed under section 4 of the Ordinance. Apart from it as rightly held by the two Courts below that there is no indication in the consent application that the rent of Rs. 225 per month fixed by consent of the parties was applicable from a date prior to the date of filing of the application in the Court and the subsequent conduct of the appellant in remitting one month's rent after the compromise on 16-5- 1970 negatived the contention of the appellant that there was any agreement for adjustment of any excess payment as alleged by the appellant. In addition to it I have gone through the statement on oath made by the appellant before the Rent Controller and I find that he did not state anywhere in his examination-in-chief that there was any agreement between him and the respondent for refund of any alleged excess at the rate of Rs.35 per month although this fact was specifically pleaded in his written statement. I further find that even if the contention of the appellant as stated in his written statement is accepted there was admitted default in the payment of rent. It is not disputed that the rent of the premises is payable in advance. It is also not disputed that from 18-4-1970 to 17-1-1971 which comes to nine months no rent was remitted by the appellant to the respondent. Nine months rent at the rate of Rs.235 (which also includes Rs.10 per month as water charges) comes to Rs.3,115 whereas the total amount which the appellant claimed as alleged excess amount in his written statement is only Rs.1,190. It is therefore quite clear that on the date when the application for eviction was filed the appellant according to his own showing was in arrears of rent and water charges amounting to Rs.925 per month which he had failed to tender to the appellant. In these circumstances no exception can be taken to the orders of the two Courts below maintaining the eviction of the appellant from the premises on the ground of default.
16. The alternate contention of Mr. Sharif, the learned counsel for the appellant, in the case is that the two Courts below while ordering eviction of appellant on ground of default were not even conscious of the fact that they had a discretion under section 13(2)(1) of the Ordinance not to make an order of eviction against the appellant even if the default was proved against him and, therefore, the order is void in view of the decision in the cases of Dhunda v. The Punjab Province (Now Province of West Pakistan) PLD 1960 Lah. 796, Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89. The cases cited by the learned counsel are hardly of any help to appellant. Both the Rent Controller and the First Appellate Authority on a careful analysis of the evidence came to the conclusion that the default committed by the appellant was deliberate and wilful and in view of this finding there was hardly any occasion for exercise of discretion in favour of the Appellant. I, therefore, find no substance in this appeal which is accordingly dismissed with costs but the appellant is allowed two months time to vacate the premises.