' In this Constitutional petition, order, dated 21-10-1985 passed by the learned Additional District Judge, Lahore dismissing the appeal of the petitioners against order dated 17-4-1985 passed by learned Rent Controller, Lahore striking off the defence of the petitioners under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, has been called in question.
2. The facts forming the background of this Constitutional petition are that on 1-4-1979 Agha Safdar Jang etc. The original owners of the shop in dispute instituted an eviction petition against the petitioners on the ground of default in the payment of rent. On 16-6-1979, the learned Rent Controller, passed an order as contemplated under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, directing the petitioners to deposit arrears of rent and also continue depositing further monthly rent before the fixed date till the disposal of the ejectment petition.
3. During the pendency of the ejectment petition, Agha Safdar Jang etc. i.e, the owners of the property according to the petitioners executed an agreement of sale of the said property in their favour on 2-11-1980. A suit for permanent injunction was filed by the petitioners for restraining Agha Safdar Jang etc. From selling the property to any other person. A temporary injunction according to the petitioners was issued in the said suit but in spite of the same Agha Safdar Jang etc. Transferred the property through four sale-deeds to respondents 1 to 3 on 30-6-1982. The said suit for permanent injunction was withdrawn by the petitioners and a suit for Specific Performance of agreement of sale dated 2-11-1980 was filed which is still pending.
4. On 22-11-1982 respondents I to 3 on the basis of the sale of property in their favour made an application for impleading them as petitioners in the ejectment petition which was accepted on 31-1-1983 and they were substituted as petitioners thereof.
5. The present petitioners moved an application in the ejectment petition for dismissal of the same for the reason that Agha Safdar Jang etc. Having executed agreement of sale in favour of the petitioners on 2-11-1980, the petitioners ceased to be the tenants as they were in possession of the property from the said date onward in part performance of the said agreement. The learned Rent Controller passed an order on 7-10-1984 for adjournment of the hearing of the ejectment petition sine die till the disposal of suit of the petitioners for Specific Performance of the said agreement by the Civil Court. Respondents Nos.1 to 3 feeling aggrieved by the said order staying the proceedings in the ejectment petition passed by the Rent Controller, filed Writ Petition No,5460 of 1984 in this Court. This writ petition was accepted through judgment dated 23-2-1985 in which it was held that there was no stipulation in the agreement of sale dated 2-11-1980 exempting the vendee from payment of rent of the disputed property to the vendor/landlord as such the present petitioners continued to occupy the disputed property in the same capacity in which they were in its occupation prior to the execution of the said agreement of sale and were obliged to pay rent and failure whereof entitled the consequence of their ejectment. It was also held that in these circumstances the learned Rent Controller was not clothed with the jurisdiction to stay the proceedings in the ejectment petition sine die.
6. On 9-3-1985, respondents 1 to 3 made an application as is indicated by the petitioners in para. 6 of the writ petition for striking of the defence of the petitioners for non-compliance of the said order dated 16-6-1979 for deposit of rent as the rent for months of November and December, 1980 was not deposited on due date which was deposited on 2-2-1981 as such the petitioners were liable to be ejected forthwith. This application was contested by the petitioners. The learned Rent Controller through the impugned order dated 17-4-1985 accepted the said application. The defence of the petitioners was struck off and an ejectment order passed against them from the shop in dispute.
The petitioners filed appeal before the learned Additional District Judge which has been dismissed through order, dated 21-10-1985.
7 !The main burden of argument presented by the learned counsel for the petitioners in support of this petition was that the respondents 1 to 3 became owners of the property on 30-6-1982 when sale-deeds in their favour were executed by Agha Safdar Jang etc. And since the default in the payment of monthly rent regarding the said two months of November and December, 1980 relates to the period prior thereto therefore, they could not avail of the said default for seeking an order for striking off the defence of the petitioners. The argument in my opinion is not tenable. The application of the respondents 1 to 3 for substitution of their names as petitioners for Agha Safdar Jang etc. Was accepted through order, dated 31-1-1983 and the petitioners did not challenge that order on the ground that the entire period of default alleged in the ejectment petition on the basis of which eviction of the petitioners was sought related to the period prior to the date of the purchase of the property by them as such they could not be substituted as petitioners. If the petitioners' case was that the said default did not enure for the benefit of the purchaser they should have challenged the said order. Even otherwise, the payment of rent of premises is a right and liability attached to the property and its non-payment the consequence of which is the default on the basis of which eviction of the premises could be claimed subsists for the benefit of the new landlord in the like manner as is available in respect of ground of subletting and the damage to the property. Agha Safdar Jang etc. Did not seek the ejectment of the petitioners on the ground of their personal need. Had it been so an argument could be raised that their personal need could not be availed of by the new landlord for seeking tenant's eviction. This view finds support from judgment reported as Abdul Rauf v. Nawab Ali and 3 others (PLD 1986 Kar. 117).
8. Learned counsel for the petitioners attempted to support his argument relying upon judgment reported as Sh. Muhammad Nawaz v. Muhammad Azeem and others (PLD 1961 (W.P.) Lah. 788). In this reported case the facts were entirely different. It was held in this case that if the landlord does not initiate any proceedings against deceased tenant on the basis of default committed by the deceased tenant during his lifetime, the said default could not be availed of against his legal representatives after his death by initiating proceedings against them as it would be deemed that by not initiating proceedings during the lifetime of the deceased tenant, the default shall be deemed to have been condoned. In the present case, the proceedings for ejectment of the petitioners 'on the ground of default had already been initiated before the owners sold the property to respondents 1 to 3, therefore, the rule laid down in this judgment is not applicable to this case.
9. Learned counsel for the petitioners faced with this difficulty tried to overcome it by arguing that for a long time the respondents 1 to 3 did not raise objection regarding the late deposit of the rent for the said two months therefore, they shall be deemed to have condoned the default. Learned counsel for the respondents referred to judgments reported as Muhammad Yaqoob v. Master Muhammad Sharif and another (PLD 1982 Quetta 129) to contend that the law does not prescribe any time limit for raising such an objection. He argued that whenever the respondents 1 to 3 came to know about the said default they made application and there was no indication from their side to condone the default. The argument has force. In the facts and circumstances of this case the respondents 1 to 3 cannot be held to have condoned the said default.
10. Learned counsel for the petitioners then argued that the petitioners were not given opportunity to explain the said default in order to establish that it occurred due to circumstances beyond their control as according to him mere non-deposit of rent within time would not constitute default.
Learned counsel for the petitioners when questioned could not point out as to what defence was taken by the petitioners in reply to the application of respondents 1 to 3 dated 9-3-1985 through which they sought an order for striking off the defence. The memo. Of appeal filed by the petitioners before the learned lower appellate Court does not show that the petitioners raised any plea in their defence that they were compelled not to deposit rent in time due to any circumstance beyond their control. When questioned, learned counsel for the petitioners frankly conceded that rent for November and December, 1980 was deposited on 2-2-1981 much after the time fixed by the Court in the order passed under section 13(6) of the Ordinance.
11. Learned counsel for the petitioners faintly argued that the petitioners were in possession of the shop in pursuance of agreement of sale executed in their favour on 2-11-1980 therefore, they were not bound to deposit rent as they ceased to be the tenants when, the non-deposit of rent for November and December, 1980 took place. The petitioners are debarred from raising this plea because as observed above it has already been held in Writ Petition No,5460 of 1984 filed by the petitioners that by virtue of the said agreement of sale they did not cease to be the tenants and were bound to continue making payment of rent C as tenants because they continued to be in possession of the property in the same capacity and were liable to be ejected in case default was committed. This plea is barred on the basis of principles of res judicata. Even otherwise, this argument has been raised as an afterthought because if the case of the petitioners was that after 2-11-1980 they were not bound to pay the rent because they ceased to be the tenants, there is no explanation as to why the rent was deposited on 2-2-1981.
12. The learned Rent Controller, while passing order for striking off the defence of the petitioners followed the law as declared by the superior Courts that in such circumstances he was bound to strike off the defence and pass order of eviction. The impugned orders passed by the two Courts below do not suffer from any illegality or jurisdictional defect calling for interference by this Court in Constitutional jurisdiction.
13. For the foregoing reasons. The writ petition fails which is accordingly dismissed with no order as to costs. The petitioners are, however, allowed time upto 31-7-1991 to vacate the premises after which they shall be evicted through execution proceedings.