1. ' This is a tenant's appeal against an order of ejectment passed on 31-5- 1989 by the IIIrd Senior Civil Judge and Rent Controller Karachi Central.
2. ' Admittedly the appellant was tenant of the respondent/landlady in the premises in litigation viz. House No B-177, Block 10, F.B. Area, Karachi, on rent of Rs, 1,000 per month. There was such an agreement between the parties dated 27-2-1981.
3. ' On 2-12-1984 respondent Mst. Masooda Begum filed Rent Application No, 4177/1984 under section 14 of Sindh Rented Premises Ordinance (hereinafter to be mentioned as the Ordinance) for eviction of the appellant from the premises in litigation, on the ground that she (landlady) required the premises in perfect good faith bona fide for her personal use and occupation, as she was at the fag-end of her life. She also alleged that appellant was a defaulter in payment of rent and had not paid rent with effect from 1-7-1984. Subsequently Rent Case No 4177/84 was renumbered as Rent Case No 2733/85.
4. ' The rent case was contested by the appellant who filed his written statement controverting the main averments made in the rent application. During pendency of the rent case, rent order under section 16 (I) was passed on 30-11-1985 and on 24-5-1986. The respondent moved an application for amendment of rent application to add the ground of default under section 15 of the Ordinance.
5. This was after the respondent closed her side and after filing of affidavit in evidence by the appellant. Said application was accepted by consent on 17-7-1986. Necessary amendment was made in the existing rent application. On completion of evidence the trial Court on 13-1-1987 ordered eviction of the appellant from the premises in litigation on the grounds of default in, payment of rent and personal bona fide use. Appellant challenged said order dated 13-3-1987 in this Court in F.R.A. No,196 of 1987 which was accepted on 11-1-1989 and the matter was remanded to the Rent Controller for recording evidence and giving finding about default said to have taken place before filing of the Rent Application and during pendency of the Rent Application.
6. ' After remand the parties filed amended pleadings and gave evidence by way of affidavits. Under the impugned judgment dated 31-5-1989 learned Rent Controller directed eviction of the appellant> within four months, after holding that the respondent landlady had not proved if the appellant had committed default in payment of rent for the period 1-7-1984 to December, 1984 but she had been able to prove that the appellant had failed to pay rent from December, 1984 till 30-11- 1985 when the rent order under section 16(1) of the Ordinance was passed. Hence this appeal.
7. ' Mr. Khaliq Humayun learned counsel for the appellant argued that in her application moved under section 16(1) of the Ordinance the respondent/landlady had claimed rent from December, 1984 and as such her Rent Application moved on 2-12-1984 was premature, because rent for December, 1984 was payable after December, 1984 and that this indicated that the appellant was not defaulter in payment of rent on 2-12-1984 when the rent case was filed. It was further argued that application for eviction on the ground of non-payment of rent for December, 1984 could not be filed before 2- 3-1985 and as such the Rent Application filed on 2-12-1984 was premature. It was added that the respondent had also filed Suit No, 2649/1985 against the appellant for recovery of rent from 1-12- 1984 till 30-9-1985 but subsequently said suit was withdrawn. Learned counsel cited the case of Muhammad Ashraf v. Muhammad Anwar (PLD 1975 Peshawar 254) where the view taken was that an application under the Rent Laws for eviction on ground of default in payment of rent, would be competent before the Rent Controller only if the claim of a landlord is for the recovery of "rent due", and not rent in advance. It was further argued that the landlady had declined to receive rent and hence she cannot be permitted to seek advantage of her own refusal to accept rent. In this respect reliance was placed on the case of Zohra Begum v. Pakistan Burmah Shell Ltd. (1984 CLC 2769).
8. ' Mr. 'Waqar Lodhi learned counsel for the respondent did not repel the contention that the appellant was not in arrears on 2-12-1984 when the Rent Application was moved under section 15 of the Ordinance. Learned counsel vehemently argued that the appellant had not paid or tendered for payment rent for the period from December, 1984 till 30-11-1985 when the, rent order was passed under section 16(1) of the Ordinance. Learned counsel for the respondent further argued that on 2-12-1984 Rent. Application was filed on the ground of personal requirement under section 14 of the Ordinance and that the application for eviction on the ground of default be treated to have been filed on 17-7-1986 when the amendment of the rent application was allowed, for addition of the ground of section 15 of the Ordinance. It was argued that if the respondent declined to receive rent from the appellant the latter could send the rent through money order or he could deposit the rent in Court. It was next argued that even if the respondent had no cause of action for filing the Rent Application on ground of default in payment of rent on 2-12-1984, such cause of action had accrued to the respondent during pendency of the Rent Application because till 3-11- 1985 no rent was paid by the appellant to the respondent. In this respect learned counsel for the respondent cited the cases of Raj Muhammad and others v. Haji Muhammad Zareen and others (1980 SCMR 339) and Syed Ashraf All v. Ali Muhammad Khan (1986 CLC 735).
9. ' In the former it was held that the forums acting under the Rent Restriction Law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings. Similar observation was made in the case of Mst. Amina Begum v. Mehar Ghulam Dastgir (PLD 1978 SC 220). In said case it was held that compelling the landlord to withdraw ejectment petition, which had already been tried merely on the technical ground of the cause of action not having matured at the time it was filed, so that it may be filed again, would not advance the interests of justice as results on merits were not likely to be different. The case of Raj Muhammad and others (1980 SCMR 339) was followed in the case of Syed Asghar All (1986 CLC 735) where a learned Single Judge of this Court observed that even if it was assumed that on the date the application for eviction was filed, 60 days period as contemplated under section 13(2)(i) of the Ordinance had not expired, if within the statutory period of sixty days no rent was tendered by the tenant, the argument about the application for eviction being premature, was of academic nature only.
10. ' In the instant case there is no explanation as to why rent for the period from December, 1984 onwards till passing of the order under section 16(1) of the Ordinance, was not paid or offered to the respondent. Admittedly no rent was sent by the appellant to the respondent by money order and no rent was deposited in Court before passing of the order under section 16(1) on 30-11-1985.
11. Consequently in light of the case-law discussed above, the appellant is proved to have committed default in payment of rent in terms of Section 15(2)(ii) of the Ordinance.
12. ' I, therefore, maintain the impugned order and dismiss this appeal with no order as to costs. The appellant is given period of three months to vacate the premises and after said period he will be evicted by force.