ALI HUSSAIN QAZILBASH, J.----Leave in this case was granted to consider whether even after holding that the tenants were in default in the matter of payment of rent and without finding any mitigating circumstance it could be held that the default was not wilful or that the order of ejectment passed by the two authorities merited reversal.
2. The background of this case is that the appellant filed an application under section 13 of the Rent Restriction Ordinance for the ejectment of the respondents in the Court of the Rent Controller, Gujranwala, for their ejectment from the suit house. The main grounds were that the appellant required the suit house in good faith for his personal use and that the respondents were defaulters in payment of rent. After the contest, the learned Rent Controller, vide his order dated 4-3-1976, ordered the ejectment of the respondents from the suit house. The appeal of the respondents before the learned Additional District Judge was also dismissed on 14-1-1978. They, however, succeeded in obtaining a favourable decision in second appeal before the High Court through the impugned judgment.
3. We have heard the learned counsel for the appellant who vehemently contended that admittedly the respondents did commit default in the payment of rent for the months of October and November 1972 and it was on that account that the two Courts concurrently held the respondents as defaulters in the payment of rent and had ordered their ejectment from the suit house. The question whether the respondents were wilful defaulters or not has received the consideration of the learned High Court which turned it down in the following manner: "In the light of the above concrete facts it is evidently proved that on 5-3-1975 when the original application for ejectment against the appellant was filed by the landlord, no amount of rent was due towards the appellant. The onus of this issue was heavily upon the petitioner-respondent who adduced no iota of evidence in rebuttal of the material placed on the record by the appellants and miserably failed to discharge the onus placed upon him. Appearing as his own witness, Inayat Ullah (PW 4), petitioner-respondent simply stated that the appellants had not paid him the rent due since August, 1972. In cross-examination he admits that the rent of two months was sent to him by the appellants through money-order and the same was returned by him as refused and unpaid. However, he has not uttered a single word about the alleged wilful and deliberate default.
This shows that the respondent deliberately created difficulties in the way of the appellants by not accepting the rent in the hope that some omission or slip on the part of the appellants may enable him to carve out a ground for their eviction. On the other hand the appellants fully realised the situation and being conscious of their liability continued to pay rent properly. The conduct of the appellants indicates no element of negligence on their part. As soon as the respondent refused to receive the rent, the appellants reasonably adopted the alternate prescribed mode of tendering the rent by way of depositing it with the Rent Controller consistently. The learned Rent Controller as well as the learned Appellate Authority failed to notice this aspect of the case and decided the matter in issue against the appellants arbitrarily without any cogent evidence on the file."
After hearing the arguments of the learned counsel in the light of the above, we also subscribe to the above view and hold that the respondents were not wilful defaulters and the High Court was right in holding them so. The learned counsel for the appellant then wanted us to consider this case on the question of personal requirement of the suit house, but since leave was only granted to consider the question whether the default was wilful or not, we would not like to examine this case on any other ground.
4. We thus find no merit in this appeal and the same is dismissed with no order as to costs.