' The appellants have assailed the order of the learned Rent Controller, Karachi (East) through present appeal under section 21 of the Sindh Rented Premises Ordinance, 1979. They have sought the following relief: - "Wherefore, it is prayed that this Honourable Court will be pleased to call for the R and P from the Controller below and after hearing the parties be further pleased to set aside the impugned judgment, dated 5-12-1988 in so far as it holds that ejectment application is mala fide and default in payment of rent by the Respondent Co. Is technical and grant the ejectment of the Respondent Company from the demised premises being Plot No, 16/17, V-Block 3, Central Commercial Area, Karachi Cooperative Housing Societies Union Limited."
2. The brief facts of the case as stated in the Rent Application (Rent Case No,718 of 1986) are that the property being Commercial Plot No,.16/17 in Block 3, Central Commercial Area, Karachi, Cooperative Housing Societies Union Limited, admeasuring 591 square yards, which is subject- matter of the present appeal belonged to appellant Pirji Muhammad Naqi's mother (late) Mst.
Ayiesha Bi wife of Pirjee Muhammad Yousuf. The respondent's predecessor-company namely Dawood Petroleum Limited was inducted therein as a tenant in the said plot by Mst. Ayesha Bi, mother of the appellant Pirjee Muhammad Naqi in the year 1971. Owing to nationalization of the Oil Companies in the Country and resultant reorganization the assets and liabilities of the said Company, namely Dawood Petroleum Limited, including all rental premises, were taken over by the respondent company i,e, Pakistan State Oil Company Limited and as such it became statutory tenant of the appellant Pirjee Muhammad Naqi's mother. The rent of the said plot at present is Rs,35,000. On the demise of Mst. Ayesha Bi, mother of the appellant, Pirjee Muhammad Naqi, by family settlement the subject-matter of present appeal devolved upon the appellant as a share in the property and it was also mutated in relevant record in the name of appellant Prijee Muhammad Naqi on 12-2-1985.
3. It is further stated in the application that appellant Pirjee Muhammad Naqi, by registered A.D.
Letter, dated 15-2-1986 informed the respondent-Company of the change of ownership of the said plot as required by section 18 of the Sindh Rented Premises Ordinance; 1979. According to the appellant the respondent-Company was, thus, under a legal obligation to pay the rent for the period from 12-2-1985 onwards to the appellant within 30 days of the receipt of the intimation with regard to the change of the ownership.
4. The respondent-company after the receipt of the said intimation regarding change of ownership from appellant failed to pay or tender rent to him.
5. It is averred that, thus, the respondent-company committed wilful default in payment of rent and rendered itself liable to enactment from the said Plot bearing No,16/17, Block 3, Central Commercial Area, Karachi Cooperative Housing Societies Union Limited Karachi. It was in these circumstances that rent application under section 15 of the Sindh Rented Premises Ordinance, 1979 was filed in the Court of IIIrd Civil Judge/Rent Controller, Karachi (East).
6. The respondent-Company filed written statement wherein the relationship of landlord and tenant was not disputed. It was further stated that a lease deed was executed between the parties on 28-5-1971 and it was registered on the same date. This lease was for a period of 10 years with effect from 11-7-1970 to 10-7-1980 at a monthly rent of Rs,3,000 and under clause 3(F) of the said registered lease deed the lessee had the option to renew the lease for two further terms of 10 years each from the expiration of the said term of 10 years at monthly rent of Rs,35,000, containing the like covenants and provisions as are contained in the registered lease deed.
7. The respondent by registered letter, dated 31-3-1980 exercised the option under clause 3(F) of the said lease deed to renew the lease for a further period of 10 years on the same terms and conditions and at the enhanced rent of Rs,35,000 per month, in terms of the said lease deed and requested the lessor to get the lease deed registered for the renewed period but no fresh deed was registered, but the lessor received the rent at the enhanced rate of Rs,35,000 per month with effect from 11-7-1980 and the tenancy continued. It is admitted that owing to the nationalization of Oil Companies in the Country and resultant re-organization the assests and liabilities of Dawood Petroleum Limited vested in the respondent-company. The tenancy continued and appellant was bound by the terms and conditions of the lease deed.
8. It is averred that respondent received notice, dated 15-2-1986 regarding change of ownership and appellant became sole and absolute owner of the subject matter of present appeal. Mst.
Ayesha Bi, the previous owner, who was mother of appellant Pirjee Muhammad Naqi had instructed by letter, dated 12-4-1974 to credit the rent directly in her Bank Account. In reply to the said letter the legal adviser of the respondent sent a letter to Mst. Ayesha Bi, whereby depositing the amount of rent in her bank account was declined. The respondent informed her that the amount of rent would be sent directly by cheque to her. Thus, the cheques were directly sent to Mst. Aisha Bi. Again by letter, dated 14-2-1976. Mst. Ayesha Bi requested the respondent to credit monthly rent in her bank account. The respondent acted accordingly.
9. It is further averred that upto March, 1986 the amount of rent was deposited in the bank account of Mst. Ayesha Bi and after the receipt of notice, dated 15-2-1986 regarding the change of ownership the rent for April, 1986, and of subsequent months was sent to the appellant Pirjee Muhammad Naqi by payees account cheque by registered letter. Some of the registered letters were returned being refused and some registered letters are not traceable. In September, 1986 the rentals cheque for the month of September, 1986 was tendered personally to the appellant, but he refused to accept it. It was, therefore, sent by registered post with acknowledgement due. The plea of applicant that respondent was under legal obligation to pay the rent for the period from 12-2- 1985 onwards to the appellant has been denied.
10. It is further stated that three rental cheques pertaining to the months of January, February and March, 1986 were credited in the account of Mst. Ayesha Bi. It was confirmed from the bank that two cheque were encashed but the fate of IIIrd cheque, dated 24-2-1986 was not known. On receipt of the letter, dated 15-2-1986 from the appellant regarding change of ownership the rent for the months of April, May, June, July, August, September and October, 1986 were sent to the appellant under the cover of registered envelope but some envelopes were returned to the respondent and some envelopes were not traceable. Therefore, no default was committed for the period from 12-2- 1985 or for any period.
11. On the basis of pleadings of parties the following issues were framed by the trial Court:-
(a) Whether opponents committed wilful default in payment of rent?
(b) What should the order be?
12. The appellant filed his affidavit in evidence in support of his case before the trial Court and he was cross-examined by the learned counsel for the respondent and thereafter appellants' counsel closed his side.
13. From the side of respondent one Murtaza Hussain, Legal Executive of respondent-company filed his affidavit-in-evidence and he was cross-examined by the counsel for the appellant. The respondent also examined Muhammad Yaqoob, Assistant Vice-President, Habib Bank Limited, S.I.T.E. Branch, Karachi. After the evidence of these two witnesses side of respondent was closed by his counsel.
14. The trial Court decided Issue No,1 in negative and while answering the Issue No,2 dismissed the rent application with no order as to costs.
15. Being aggrieved by the decision of learned Rent Controller, the appellant Pirjee Muhammad Naqi filed the present appeal, which was admitted on 26-1-1989.
16. During the pendency of appeal appellant Pirjee Muhammad Naqi sold this property. The purchasers/new owners, therefore, moved civil Miscellaneous Application No,1283 of 1998 under Order I, Rule 10 read with section 151, C.P.C., which was allowed on 11-10-1998. The order is reproduced herein under in extenso:- "This application has been filed by the Intervenors praying that their names may be added as appellants in the present case as they have purchased the property which is the subject-matter of this appeal from the previous appellant, Pirjee Muhammad Naqi. This fact has been confirmed by the learned counsel for the previous appellant and they have no objection if the names of the Intervenors are substituted in place of the present appellant. They have also no objection to the grant of this application.
' In view of the above, C.M.A. No, 1283 of 1998 is granted subject to all just exceptions. Mr. Farooq Hashim, counsel for the Intervenors/Appellants will file amended title page of the memo. Of appeal within a week.
' Since this appeal pertains to the year 1989, the same be fixed in the 1st week of December, 1998."
17. I have heard the learned counsel for the parties. I have perused the evidence placed on record as well as the R & P of the trial Court.
18. The perusal of the impugned judgment/order shows that the default committed by the respondent was termed as technical default by the trial Court and application for ejectment was dismissed.
19. At the very outset Mr. Usman Ghani Rashid, learned Advocate for respondent contended that the present new-purchasers, who have stepped in the shoes of previous owner, are not entitled to prosecute the present appeal, therefore, the appeal is not maintainable and this issue may be decided as preliminary issue. But, subsequently, it was urged by the learned counsel for both the parties that the appeal may be heard as a whole alongwith the preliminary objection raised by the learned counsel for the respondent.
20. The learned counsel for the appellants argued the preliminary objection raised by the learned counsel for respondent at length and cited plethora of case law given by this Court as well as the Honourable Supreme Court in support of the maintainability of appeal in the present form.
21. Mr. Usman Ghani Rashid, learned counsel for the respondent, very candidly conceded to the arguments of the learned counsel for the appellants and stated that the new owners/purchasers were competent to prosecute and present appeal and whatever right accrued to the, appellant devolved upon the new owners/purchasers, who have stepped in the shoes of the previous owner and he, therefore, did not press the preliminary objection raised by him in terms stated hereinabove.
22. The appeal is maintainable and appellants are entitled to prosecute it and the new owners/purchasers succeed to the rights which accrued to the previous owner,of property. The appellants were, therefore, competent to sue the respondent and seek the relief of ejectment on the ground of default.
23. Now, I will advert to the issue of default whether it was a technical default or a wilful default.
24. It will be pertinent to reproduce herein under subsection (2) clause iii) of section 15 of Sindh Rented Premises Ordinance, 1979 for ready reference.-- "15. Application to Controller.--- (1) ........................................................................
(2) ..
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days afte1 the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment,"
25. The plain reading of above provisions of law shows that if tenant failed to pay rent within 15 days after the expiry of the period fixed by mutual agreement between the parties or in absence of agreement within sixty days after the rent became due for payment the Controller shall make an order of ejectment. It is, thus, clear that if default was proved the Rent Controller had no other option but to order ejectment of defaulting party..
26. In West Pakistan Urban Rent Restriction Ordinance,' 1959 (Ordinance VI of 1959), which is now repealed, it was provided that the Rent, Controller could order ejectment of tenant if he was satisfied that there was violation of any provision of section 13 of the said Ordinance. In Sindh Rented Premises Ordinance, 1979 (Ordinance XVII of 1979), however, in section 15 of Ordinance in place of word "may" the legislature has introduced word "shall", which connotes that no discretion whatsoever has been left with the Rent Controller and if wilful default was proved it was mandatory for the Rent Controller or order ejectment.
27. In the old statute i,e, West Pakistan Rent Restriction Ordinance no mode for the payment of rent was prescribed but under the repealing ordinance i,e, Sindh Rented Premises Ordinance, 1979, following modes for the tender of rent have been provided:--
(i) Direct payment of rent to landlord
(ii) In case of refusal by landlord through postal money order.
(iii) Depositing in'the Court of Rent Controller having jurisdiction.
28. After carefully and minutely examining the record and perusal of the impugned judgment it transpires that rent order was passed on 7-3-1987 and rent from March, 1986 was deposited by the respondent in Court. On enquiry from Habib Bank Limited, SITE Branch, Karachi, it was found that the rent was deposited by respondent in Bank in the account of deceased Aisha Bi upto February, 1986.
In his affidavit-in-evidence filed in Court on 14-3-1987, the appellant claimed the default in the payment of rent from March, 1986 instead of February, 1985. This piece of evidence has gone unchallenged in the cross-examination. In the case of Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 M LD 810, it was held that failure to cross-examine a witness would tantamount- to admitting his statement. The attorney of respondent has admitted in cross-examination that intimation with regard to change of ownership was received by the respondent on 18-2-1986. The rent was neither tendered to appellant personally near it was sent by money order nor it was deposited in the Court. It was, however, claimed that as a matter of practice respondent used to send the rent from March, 1986 to appellant by post. This was denied by the appellant. Despite the denial by the appellant that he did not receive any letter/cheque from the respondent no evidence was led by the appellant to rebut this averment of the appellant. Thus, under the- existing facts and circumstances of the case adverse inference could be safely drawn against the respondent.
29. The evidence adduced further shows that the payment of arrears of rent from March, 1986 to January, 1987 was made by the respondent in Court on 26-3-1987. Thus, it was proved that respondent committed wilful and deliberate default at least from March, 1986 to December,.
1986. Thus, the learned Rent Controller erred in law by terming it as a technical default. The impugned judgment/order is, therefore, liable to be set aside.
30. In the case of Habib Bux v. Mst. Bilquis Begum and others 1995 SCM R 448, it was held by Honourable Supreme Court that the petitioner, who remained tenant, was liable to payment to the previous owner or to his successor after receipt of notice. Instead of paying rent to him depositing the rent by way of miscellaneous application before the Rent Controller petitioner committed a default and order of ejectment was upheld.
31. In the case of Province of Sindh and 3 others v. Agha Sikandar Ali Khan 1990 CLC 1644, it was observed at page 1647 by a Bench of this Court as follows:-- "Under the existing law it is the duty of the tenant to pay or tender rent to landlord within time. This liability continues even if the landlord demands an excessive or exorbitant rate of rent. It does not absolve the tenant to pay or render the agreed rent. The evidence, which has come on record shows that no serious effort was made by the appellants or any one of them to tender rent to respondent at the rate of Rs,125 p.m. And even if the evidence of Irshad Ali (D.W.1) is taken on face value it does not absolve the appellants from consequences. Section 10 of the Sindh Rented Premises Ordinance, 1979, lays down the procedure to be adopted by a tenant when the landlord refuses or avoids accepting the rent. It provides as follows-- Payment of rent.--- (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month of which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or be deposited with the Controller within whose jurisdiction the premises is situated.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent.
' Provided that nothing contained in this section shall apply in the cases pending before the Controller on the commencement of this Ordinance.
' Admittedly, the appellants did not remit the rent to respondent at any time through money orders.
They also made no effort to deposit the same in the office of Rent Controller. They are, therefore, defaulters within the meaning of section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979. I am fortified in my view by the case reported as Pakistan/Art Emporium Shop No,C/6 .v. Palace Hotel, Karachi 1989 CLC 34. No exception can, therefore, be taken to the finding of learned Rent Controller oh Issue No,1 ."
32. In the case of Nisar Ahmed and Another v. Sharafullah PLD 1996 Kar. 136, the ejectment on the ground of default was ordered. The relevant observations at pages 142 to 143 of the report are reproduced herein below for convenience sake:- "I have gone through the evidence on record whereby it stood proved from the documentary and oral evidence on record that the rent for the period from 1-1-1975 to 31-3-1976 was deposited on 7- 5-1976, therefore, the monthly rent for the months from January, 1975 to 29th February, 1976 was not paid within sixty days when the monthly rent became due. The respondent in the written statement did not disclose anything about the rent receipts but his affidavit-in-evidence has improved his case by stating that sometimes rent receipts were issued by the previous landlord and sometimes it were not issued but not a single rent receipt was produced by him and has withheld the material evidence whereunder the adverse inference would be drawn that if it would have been produced the same would have gone against the respondent. It will also not be out of place to state that the respondent started depositing rent for the first time on 7-5-1976 i,e, after the filing of ejectment application on 10-4-1976, whereas the respondent's Advocate filed power of attorney on 17-5-1976.
The testimony of the respondent is not confidence inspiring in View of the above stated evidence and of withholding of material ,evidence and improvement made therein. The evidence of the appellant/landlord is consistent with their pleading and the veracity of the appellant/landlord could not be shaken in the cross-examination and no satisfactory rebutting evidence has been brought on record by the respondent/tenant. On the contrary, in the cross-examination the respondent's attorney Moinuddin admitted that his father deposited rent in M.R.C. No, 2004 of 1976 in April, 1976 and deposited Rs,496, which was rent for 14 months and the rate of rent was Rs,34 and there was Rs,20 in excess of rent. The respondent/tenant has not produced any rent receipt for the period from 1-1-1975 till he made deposit in Court on 7-5-1976. If the previous owner had refused to accept rent or to pass on any receipt then it was the duty of the respondent to send the rent through money order or to deposit with the Rent Controller but nothing has been said by the respondent about the repayment or tender of rent prior to 7-5-1976 which would prove that the respondent had failed to pay monthly Rent for the months from January, 1975 till 29-2-1976, within time prescribed by law. There is nothing on record to show that the appellant made specific demand about the payment of water and conservancy charges from the respondent, therefore, he could not be held to be defaulter for non-payment of water and conservancy charges. Refelence is made to Mst. Hashmi Begum v. Mst. Alya Zohra Begum 1985 M LD 1514. No other plea has been raised by the parties' learned counsel before me. The finding of Rent Controller on the point of default is not 'sustainable, which is hereby set aside and the appeal is allowed on the ground of default in payment of rent. However, the respondent is directed to hand over the vacant possession of the premises in question to the appellant within the period of 90 days from the date of this order subject to deposit of rent, if any due with the Rent Controller."
33. Again in the case of Sarwar Abbas v. Mst. Hajra Bai and others 1983 CLC 337 it was observed as under:- "The provisions of section 13-A are very clear and do not contemplate anything more than giving of intimation to the tenant about the death of the owner and the names of the persons, who have inherited the said property. Once this is done, in my opinion the tenant has no legal right to demand heirship certificate or any other legal documents in proof of the inheritance, on the part of the legal representatives and/or legal heirs of the deceased. This view of mine is fully supported by judgment of this Court reported in PLD 1976 Kar. 169, which relates, no doubt, to the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, although the said provisions are stricter for purposes of compliance. In addition to this, find from the statement of the appellant given before the learned trial Court, that during the life-time of Mst. Slamti Jan, her two sons namely Ahmad and Karam Elahi used to collect rents on her behalf and as such at least there was no doubt in the mind of the appellant, in respect of these two legal' heirs and as such there was nothing to prevent the appellant from remitting the rent of the premises at least to these two persons for and on behalf of all the legal heirs of the deceased. The other alternative that was open to the appellant, in case of his real doubt was, to have moved the learned Rent Controller and deposited the arrears of rents in respect of the premises, on this ground that he was not sure, who are the real legal heirs of the deceased. Unfortunately, the appellant did not choose either of these opinions, which were open to him, but kept quiet upto 1972, when the respondents filed the ejectment application on the ground of default. Ft is an admitted position, when ejectment application in question was filed, the appellant was definitely in arrears of rents on his on admission from October, 1970 but he should not be a defaulter for such arrears fill actually he received notice under section 13-A, which was; dated 30th August, 1971 and, therefore, default committed by him would be considered from 1st October, 1971 only."
34. Mr. Usman Ghani Rashid, the learned counsel for the respondent contended that though word "may" in previous statute i,e, West Pakistan Urban Rent Restriction Ordinance, has been substituted by the word "shall" even the discretion lies with the Rent Controller to grant or reject an application for eviction on the ground of default.
35. There is no cavil with the proposition that the discretion vested in the Rent Controller. It his, however, been time and again held by the superior Courts that discretion must be exercised judiciously and not arbitrarily or capriciously. The Courts have to act and work within the parameters prescribed by law and any departure from it would tantamount to exercise of discretion arbitrarily which is not permitted/warranted by law.
36. It appears that the aforesaid rule was laid down by the superior Courts to safeguard the legal rights of the parties so that the authorities, which are vested with discretion should not make misuse thereof and transgress the limits prescribed by law. While deciding an appeal, revision etc. The superior Courts are competent to examine the exercise of discretionary powers by the subordinate Courts and upon examination of the material placed before them if the superior Courts come to the conclusion that discretion was exercised illegally or capriciously they can strike down the order impugned before them.
37. It is not disputed that the term of ten (10) years lease according to lease agreement, dated 28- 5-1971, expired on 10-7-1980. The heirs/legal representatives of deceased Mst. Aisha Bi refused to execute a fresh . Agreement of lease. The respondent did not initiate any proceedings before competent Court of Law for the renewals of fresh lease and there was no lease/agreement between the parties after the expiry of lease as stated herein above:
38. Mr. Murtaza Hussain, Senior Legal Executive of respondent-.Company admitted in his cross- examination that the lease executed between the parties was for ten years and that no other lease agreement was executed. He contrarily stated that option was . Exercised. He further stated that respondent was informed by the legal representative that they were not prepared to concede to the option of renewal of lease and in that context no proceedings were initiated by the respondent.
39. Thus, it is crystal clear that lease expired on 10-7-1980. Since no fresh lease agreement was executed by the parties respondent, therefore, became a statutory tenant.
40. In the case of Muhammad Yousuf v. Abdullah PLD 1980 SC 298 it was observed by the Honourable Supreme Court that an agreement, which is for a fixed period, it comes to an end on the expiry of the agreed period unless it is renewed by both the parties. Lease comes to an end on a particular date could remain in force only if lessor and lessee entered into a fresh agreement to keep lease in force.
41. The aforementioned dicta of Honourable Supreme Court was followed by this Court in the case of Muhammad Ilyas v. Qamaruddin 1984 CLC 757.
42. It will also be pertinent to reproduce heieinbelow the relevant portion of the cross-examination of Murtaza Hussain, the Senior Legal Executive of the respondent, who appeared on behalf of respondent for the purpose of evidence. The same is reproduced' hereinunder-- "...It is fact that by letter, dated 10-2-1986 applicant informed us that property has been devolved before him and rents should be paid to him. We received above letter on 13-2-1986. It is correct that applicant had not made request for paying rents through cheques or by registered post. Vol. Says we have practice to send rent through cheque. It is incorrect to say that we were not sending cheques on Aisha Bi's request. The rent from the period from 11-2-1986 to 10-3-1986 was sent to Aisha Bi's account in spite of intimation from applicant on 13-2-1986. Vol. Says because letter received to other department of the company and rents were used to send in advance. It is correct to say that we did not send rents to applicant by money order nor we offered it personally nor we deposited in Court till rent order
43. The perusal of above piece of evidence reveals that there were no instructions of the appellant that the payment should be made through cheques. In the case of Zulfiqar Hussain v. Mrs. Tazeen Chaudhry 1986 CLC 393, it was held that the tender of rent through cheque is not a valid tender of rent.
44. The scrutiny of record further shows that no steps were taken by, the respondent to pay the rent for the period from 11-2-1986 onwards to the appellants; thus, the default in payment of rent has been proved from 11-2-1986. The mere deposit of rent for the period from 11-2-1986 to 10-2-1986 in the account of deceased Aisha Bi after the receipt of intimation regarding change of ownership is not a valid tender, particularly, in view of the averment of the respondent that the fate of cheque No,72813, dated 24-2-1986 is not known and in evidence it was stated that it was not credited in the account of deceased Aisha Bi. The Bank Officer Murtaza Hussain' has categorically stated that no such cheque was received and credited in the account of deceased. On the point of refusal regarding receipt of rent by appellant even postman was not examined nor encashment certificate was produced.
45. Mr. Usman Ghani Rashid, learned counsel for the respondent, has cited the following authorities in support of his contention on behalf of the respondent:-
(i) Dr. Aftab Ahmad Khan v. Mst. Zaibun Nisa 1998 SCM R 2085.
(ii) Noor Muhammad and another v. Mehdi PLD 1991 SC 711.
(iii) Mst. Latifa Khanum and others v. Syed Zahoorul Hassan 1984 CLC 1009.
(iv) Muhammad Ilyas v. Qamaruddin 1984 CLC 757.
(v) National Bank of Pakistan v. Wadhu Mal 1985 CLC 1053.
(vi) Syed Jalilur Rehman etc. v. Messrs Johar Trading Company 1982 CLC 219.
(vii) Masjid-e-Humra v. Zamir Ahmed 1982 CLC 2193. (viii)Mirza Jawad Baig v. Pakistan State Oil Co.
Ltd. 1985 M LD 536.
(ix) Unreported judgment of Honourable Supreme Court in the case of Karimjee v. Messrs Lakhani Steel Corporation C.P.S.L.A. No,97-K of 1989.
46. The authorities cited by the learned counsel for the respondent are based on different footings and are distinguishable from the facts and circumstances of the present case.
47. The upshot of the above discussion is that it is proved beyond shadow of doubt that respondent-company committed wilful default and it cannot be termed as merely a technical.
Default. Consequently, the impugned order passed by the learned trial Court on 5-12-1988 is set aside. The appeal is allowed with no order as to costs. The prayer made in the appeal for ejectment is allowed. However, three months' time is allowed to respondent to hand over the vacant possession of Commercial Plot No,16/17, measuring 591 squares yards, Block. 3, Central Commercial Area, Karachi Cooperative Housing Societies Union Limited, Karachi, to the appellants, who have stepped in the shoes of previous owner i,e, appellant Pirjee Muhammad Naqi.