' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, raises an interesting question with 'regard to the cause of action which matured during the pendency of the application filed under section 13 of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed).
2. The appellants who are owners/landlords of the building known as "Lotia Building" situated at Serai Road, Karachi, filed an application under section 13 of the Sindh Urban Rent Restriction Ordinance, '1959 (since repealed) on 20-12-1975, seeking the ejectment of the respondent from the shop of the building on the following grounds:---
(i) Default in payment of rent with effect from October, 1975.
(ii) Closure of the premises for the last six months without any just cause.
3. The respondent in written reply stated that:---
(i) They occupy the disputed premises as tenants of Fida Hussain and Ebrahimji, fathers of appellants Tahir Ali and Yousif Ali, respectively.
(ii) That Fida Hussain and Ebrahimji used to collect accumulated rent from them and this practice continued up to 15th October, 1975.
(iii) They had sent rent of the months of October and November, 1975, through Fakharuddin and rent of December, 1975, through Marfani, but they refused to accept the same.
(iv) That on 6-1-1976 they tendered rent for the months of October, November and December, through Pay Order in the name of Fida Hussain and Ebrahimji, but they refused it and, thereafter they started depositing rent in Misc. Rent Case No,265 of 1976 in the name of those persons.
4. Since the tenancy was in dispute the learned Vth Senior Civil Judge/Rent Controller (South)
Karachi (Miss Anis Tahir Hussain) framed a preliminary issue and decided it against the appellants.
This order dated 10-2-1986 was assailed before this Court in F.R.A. No,139 of 1986, which was heard by my learned brother Abdul Rahim Kazi, J, who by judgment dated 22-1-1989 allowed it and remanded the case with the following observation/direction:--- "The upshot of the above discussion is that the orders of the learned Rent Controller are set aside on all the issues while the issue of relationship of landlord and tenant is answered in affirmative in favour of the appellants and the case is remanded to the Rent Controller with the directions to allow the parties to lead evidence on the other issues and decide the same after hearing them."
5. The case proceeded before Vth Senior Civil Judge and Rent Controller (South) Karachi (Miss Soofia Latif), who by an order dated 2-9-1989 dismissed the application for ejectment holding that:---
(I) There was no default in payment of rent of October, 1975, as the case was filed on 20-12-1975 and in the absence of any written agreement as to the date for payment of rent, the rent of October, 1975, could be paid by the end of December, 1975.
(ii) That the representatives of the respondents had made efforts to tender rent to appellant Tahir Ali, but he avoided to receive it as quite admittedly he wanted to enhance the rent.
' It is in these circumstances that the present appeal has been, filed.
6. I have heard Mr. Maroof Ali Khan, learned counsel for the appellants and Mr. M.Salim Thepdawala, learned counsel for the respondent. I have also gone through the record of the case carefully.
7. Section 13(2) of the Sindh Urban Rent Restriction Ordinance, 1959, provides that:-- "A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that:---
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days from the period for which the rent is payable;
8. Admittedly there is no written agreement of tenancy between the parties. There is also no dispute that the rent for the month of September, 1975, was paid to the appellants. The rent for the month of October, 1975, was payable on 1st November, 1975, and the respondent had a grace period of sixty days from 1st November, 1975. Obviously, therefore, the application for ejectment filed on the ground of default in payment of rent on 20-12-1975 was premature as the cause of action had not accrued to appellants by that time. Mr. Maroof Ali Khan, learned counsel for the appellants finding himself on the horns of dilemma, conceded and I think rightly that the cause of action to file application for ejectment on the ground of default had not matured on the date when the appellants had filed the application for eviction. He has, however, contended with force that there was wilful default on the part of the respondent who were not prepared to accept the appellants as their landlords, which default had matured during the pendency of the case of ejectment and their denial of the status of the appellants as their landlords should result in their eviction without further proceedings. The cases of Mst. Amina Begum v. Ghulam Dastgir, reported in PLD 1978 SC 220, Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others reported in 1980 SCM R 339, Syed Ashraf Ali v. Ali Muhammad Khan reported in 1986 CLC 735, Mst. Rabia Bai Fatma Bai v. Ghulam Muhammad Donal, reported in 1987 CLC 404 and Pakistan Art Emporium Shop No,C/6 v. Palace Hotel, Karachi, reported in 1989 CLC 34, appear to lend some colour to the contention raised on behalf of appellants. With all humility it may be observed that mere absence of payment of rent due during the pendency of ejectment proceedings would not by itself constitute a failure or default. I desire to associate myself with the measured language of my learned brother Wajihuddin Ahmad, J, expressed in the case of Jan Muhammad v. Abdul Ghaffar, reported in 1991 M LD 1631, in the following words:-- "This is so as mere absence of payment of the rental dues does not of itself constitute a failure or default. An element of volition or a degree of wilfulness in the context of failure seems to be of essence in the concept. Further, there can and may be extenuating circumstances and where the Ordinance of 1959, as amended, still applies a pointed discretion also vests in the Controller, all of which would seem to imply an obligation to raise the issue adequately and upon due notice. These elements were manifestly recognised In re: Amina Begum when the requirement of amendment was specifically emphasised relative to any altered circumstances necessitating re-moulding of relief. Thirdly, as consistently opined in the Supreme Court, subsequent events can be taken note of essentially in the interest of the ends of justice. Apart from all else and even if the argument was otherwise valid none of these elements, ex facie, are available in the present case. Last but not the least, once eviction proceedings are set into motion the relations between the parties can hardly be visualised to be such as to anticipate a smooth and orderly tender or acceptance of rents and it is for this reason that the various Rent Laws expressly, envisage orders of deposit once eviction proceedings are launched and are pending. This aspect, as regards pendente lite default, can never be overemphasised."
9. In considering the soundness of the conclusion thus arrived at by the learned Rent Controller, I wish to observe that appellant Tahir Ali has himself admitted in clear terms that rent was offered to him through Fakharuddin and Marfani, but the same was refused as he wanted an increase in the rent. The last rent receipt dated 15-10-1975 is on record. It is on printed form showing "Ebrahimji and M. Fida Hussain M. Lotia, Serai Road, Karachi" at its top. The respondent in denying the relationship were obviously misled with this printed form. In such circumstances the appellants who want to construct a building without plinth cannot be permitted to do so. Since the application for ejectment was filed before the cause of action had accrued to the appellants, it was rightly dismissed by the Rent Controller.
10. A point which was touched upon by Mr. Maroof Ali Khan, learned counsel for the appellants during the course of arguments may now be dealt with. It is contended by him that the plea of the closure of shop for a period of more than six months, which was a valid ground of ejectment under the repealed Ordinance, was not given any consideration by the learned Rent .Controller although it had gone unchallenged. The perusal of the record, however, proves otherwise. This ground of ejectment was abandoned by the appellants at the initial stage who had raised a new point in their affidavits-in evidence by stating that the disputed premises was being used as office and not as a commercial concern. It was, therefore, rightly ignored by the Rent Controller.
11. In the result the appeal fails and is dismissed with no order as to costs.