1. NASIM HASAN SHAH, J-This is a petition for leave to appeal against the order of the Lahore High Court, dated 12-4-1978, whereby the second appeal of the petitioner (S.A.O. No. 415 of 1977) directed against the order of the Additional District Judge, Lahore, by which he maintained the order of eject--ment passed by the Rent Controller against the petitioner, in regard to property No: 118-E-1, Gulberg-III, Lahore, was dismissed.
2. The facts which form the background are that a petition for ejectment was filed b; the respondent on 8th April 1974, on the ground of default, requirement of house for personal use by the landlord and damage to the property. The petitioners contested all these pleas in their written statement but they did not produe2 any evidence on the date fixed for recording evidence, on account of the impression that a fresh date would be granted for the purpose as the daughter of their counsel was seriously ill and he could not appear on the said date. However, the learned Rent Controller did not adjourn the case, but closed the evidence of the petitioners and proceeded to give judgment finding all the issues in favour of the landlord/respondent and directed the petitioners to vacate the disputed premises.
3. On appeal before the Additional District Judge, it was submitted by the petitioners that full opportunity had not been given to them to adduce evidence. The respondent-landlord agreed that the petitioners may place all their documentary evidence in appeal. Consequently a large number of documents were filed before the appellate Court, which were taken into consideration by the learned Additional District Judge. He held that the issue with regard to damage to the property was not proved. However, he maintained the findings on issues 1 and 2 about the default and personal requirement of the landlord.
4. The petitioners thereupon filed a second appeal before the High Court On the date fixed for its hearing the counsel for the petitioners, however, did not appear. The learned Judge himself went through the entire record and decided the matter on merits. He took into consideration all the main grievances urged at the time of the admission of the appeal by the High Court, namely, (a) that sufficient opportunity was not granted to the petitioners to produce their evidence, (b) that the landlord's attorney was granted several opportunities to prove his special power of attorney whereas the petitioners were not allowed to establish their version and this amounted to discrimination between the petitioners and the respondent and (c) that no default was proved and the District Judge bad misread the evidence on that issue. The learned Judge dealt with all the above-noted points and found no force in any of them and, accordingly, dismissed the appeal on 12th April 1978. Hence, this petition for leave to appeal.
5. The learned counsel for the petitioners, Mr. Muhammad Nawaz Kasuri, reiterated the submissions raised by him before the High Court and in addition submitted that as he had not appeared before the High Court when his appeal was called for hearing, the learned Judge should have dismissed the appeal under Order XLI, rule 17, C. P. C. And not decided it on merits. According to him if the above course was followed the petitioners would have had a remedy under Order XLI, rule 19, C. P.
6. C. Of getting the appeal readmitted, because the counsel was prevented by sufficient cause for appearing when the appeal was called on for heating.
7. We, however, called upon the learned counsel to satisfy us that the finding on the question of default recorded by the Courts below was erroneous, as the said question went to the root of the case. In this connection the learned counsel submitted that the finding against the petitioners was that they had committed default in the payment of rent from 20th September 1973 upto the month of April 1974. This finding was erroneous because the rent of the premises was Rs. 1,000 per mensum and the petitioners had sent a cheque of Rs. 3,000 to the respondent on 20th March 1974, which the latter bad unjusti--fiably refused to accept. It was submitted that no default was committed because in the original petition for ejectment the allegation was that the petitioners had refused to pay rent from 20-11-1973. However, in the course of the proceedings the respondent had to amend his plaint to implead some of the present petitioners as respondents (on account of the death of their prede--cessor-in-interest) and it was only in the amended ejectment application that he stated that the default in payment of rent was from 20th September 1973 onwards. The above change regarding the averment with regard to the date of non-payment of rent was made in the ejectment petition without permission to make any amendment in the relevant respect and, therefore, could not be made the basis of the finding that the petitioners had committed default.
8. We have considered this plea and are unable to accept it. Firstly, because the petitioners should have controverted the allegation made in the amended petition that the default in the payment of rent had not occurred as from 20 September 1973, as was being alleged in the amended petition, secondly, the default, even if it was to be reckoned from 20-11-1973, was for a period o four months whereas the rent tendered was only for three months and, lastly and most importantly, as pointed out by the learned Judge in the High Court the tender made by the petitioners after the expiry of sixty days from the date when the rent became due resulted in the petitioners becoming defaulters in the payment of rent within the meaning of clause (i) of subsection (2) of section 13 of the Rent Restriction Ordinance, which provides that a tenant can be ejected if he has not paid or tendered rent due by him within 15 days after the expiry of the time fixed in the agreement of tenancy, or in the absence of any such agreement within 60,days from the period for which the rent is payable.
9. The rent tendered being admittedly after 60 days from the period when it became payable, ath default in payment of rent had clearly been committed. There is, therefore, no ground for interference with the orders of the Courts below. This petition, accordingly, must fail and is hereby dismissed. However, the petitioners are granted three months time to vacate the premises provided they continue to deposit rent regularly.