' By this common judgment I intend to dispose of F.A.O. Nos.15 and 16 of 2004 as identical question of facts and law are involved in both the appeals.
2. Briefly stated, facts of the case are that the appellant filed two separate eviction applications against the respondents on the ground of default in payment of rent. In Eviction Application No,27 of 2003 (the subject-matter of F.A.O. No,15 of 2004) the default was alleged w.e.f, October, 1998 to July, 2003 whereas in Eviction Application No,26 of 2003 (subject-matter of F.A.O. No,16 of 2003) the default was alleged for 19 months. On notice the respondent filed their respective written statements to the eviction application wherein they have admitted default and accepted the liability with further averment that the rent outstanding was deposited in the Court's account, as such; the default committed by them being a first default was condonable under section 13(2) of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as Ordinance of 1959). The learned Rent Controller in the light of pleadings of parties framed issues. However on application of the respondents that the default committed being first default is condonable under the relevant provisions of law, as such; eviction applications are liable to be dismissed. Notice of the same was given to the appellant and after hearing the arguments learned Rent Controller vide impugned order dismissed the eviction applications.
3. I have heard the learned counsel for the appellant as well as learned counsel for the respondents and have also gone through the impugned orders. It is mainly contended by the learned counsel for the appellant that earlier an eviction application was filed by the appellant against the respondents on ground of default which was disposed of in appeal on the undertaking of the respondents to pay rent regularly but they failed to deposit or tender the rent in violation of the said consent order, as such; it was not a first default but a continuous default, therefore, the provisions of section 13(2) of the Ordinance, 1959 were not attracted in the instant case. He further contended that the respondents committed the first default when first eviction application was filed and such default was condoned on undertaking of the respondents that they would pay/tender rent w.e.f, 23-9-1998 on 15th of every succeeding month.
4. The learned counsel for the respondent contended that the appellant has not alleged in the application that it was a second default, as such; the arguments, which were for the first time advanced before this Court, are not tenable. He further contended that in the first round of litigation a compromise was effected between the parties on the basis whereof the eviction application was disposed of, as such; there was no default at that time nor the same could be considered as first default within the meaning of section 13(2) of Ordinance, 1959. According to the learned counsel after filing of the instant eviction application respondents on the very first day at the time of filing written statement admitted the default and deposited the same in the Court's account, as such; the same was condonable under the relevant provisions of law and rightly condoned by the learned Rent Controller. The learned counsel in support of his contention placed reliance on the judgment reported in PLD 1994 Quetta page 38.
5. I have carefully considered the contentions put forth by the parties' learned counsel in the light of available record and have also gone through the impugned orders and relevant provisions of law.
It may be seen that under section 13(2) of the Ordinance, 1959 added by Ordinance VIII of 1985 where the application made by the landlord is on the ground of default and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on a previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made Rent Controller shall make an order rejecting the application. The learned counsel for the appellant contended that the default being not a first default was not condonable in the light of the added provision of law and in order to substantiate his contention he referred to the earlier litigation where eviction application filed by the appellant against the respondent was disposed of by this Court with consent order in the following terms:-- "Statement of Tenants ' The tenants in above appeal are ready and prepared to pay the monthly rent to Mst. Shah Pari wife of Muhammad Shafi, as provided for under the law.
23-9-1998 (Sd.) Counsel for appellant.
' The tenants shall pay the rent of the premises to the landlady Shah Pari on every 15th of succeeding month. However, the tenants shall start paying rent from 23-9-1998. Property taxes shall be paid by her. She will open account in A.B.L., Tola Ram Road Branch, Quetta, where the tenants shall deposit monthly rent. In view of the compromise the eviction applications are not pressed.
(Sd.) Counsel for respondents.
' The application is opposed as the privity of relationship is with the appellant."
Attornies of tenants (Sd.) Counsel for Appellant.
Muhammad Shafi.
' (Sd.) Khan Muhammad son of (Sd.) Counsel for appellant Malik Dost Muhammad tenants.
' (Sd.) Haji Said Muhammad son of Abdul Ghafoor"
' The said order was challenged by Muhammad Shafi husband of the appellant before the Honourable Apex Court which was also disposed of as follows:--' "We convert the above petitions into appeals and dispose of as .Follows:-- ' Without prejudice to the contentions the right of the parties in the pending suit, till the suit is disposed of, the respondent No,1 will get 60% of rent and the rest 40% of rent will be distributed between the four daughters. The amount will be paid after deduction of all taxes and outgoings.
The learned trial Court is directed to expedite the disposal of the suit."
It may be seen that though in that eviction application appellant has alleged default committed by the respondents but at the time of disposal of appeal before this Court a consent order was passed wherein the respondents undertook to pay or tender rent to the appellant w.e.f, 23rd August, 1998. In that proceedings no finding regarding default were given either by the Rent Controller or by this Court. Even respondents were not asked to pay the outstanding rent as alleged in the earlier eviction application, rather they were allowed to pay rent to the appellant from the date on which compromise was reached at between the parties i.e, 23-9-1998. In the instant eviction application the appellant has alleged default from October, 1998. Under such circumstances it could not be said that the respondents have committed default on a previous occasion, as such; they were not entitled to the benefit of proviso to section 13(2) of Ordinance, 1959. Furthermore; the appellant in his eviction application has not alleged that the respondents have also committed default on previous occasion, as such; were liable to be evicted under the provisions of Ordinance, 1959 and not entitled to the provisions pertaining to condonation of default. Even in rejoinder to the application filed by the respondent for rejection of eviction application and review of the earlier order whereby the parties were asked to lead evidence the appellant has not alleged previous default on the part of respondents. Under such circumstances learned Rent Controller rightly exercised his jurisdiction by invoking provisions of section 13(2). Of Ordinance, 1959 by condoning the default which was first default and the respondents have already deposited the due rent in Court's account before filing written statement.
For the foregoing reasons I find no merits in the instant appeals which are dismissed accordingly.