SHAFIQ AHMAD Versus SAKHAWAT HUSSAIN

ORDER

This is an appeal arising out of the order of the Rent Controller, passed on 10‑12‑1988, whereby, the application for ejectment filed by the present respondent was allowed. The applicant had filed this ejectment application on the ground of default from October, 1979 to December, 1979. The rent application initially was filed on 20‑1‑1980, which was dismissed earlier on 23‑10‑1984. Against which order, an appeal was filed before this Court, being FRA No.1069/1984, and by consent the dismissal order was set aside and the case was remanded vide order dated 17‑1‑1988. The operative part of the order is reproduced herein below:‑

"After hearing both the counsel, they submitted that case be remanded to the Rent Controller to give findings on the future default after the filing of the rent case. I am also of the view that in the absence of such finding on that point, it will not be fair to. decide that issue at the appellate stage. It is for the Rent Controller to determine and decide on the evidence as well as according to law. More‑so‑over, I have also noticed that there is no written agreement between the parties and respondent is statutory tenant for which he is entitled 60 days time for the payment of the rent. Looking to the circumstances of the case, I set aside the impugned order and remand the case back to the Rent Controller to decide all the points in accordance with the law. The parties to bear their own costs."

The learned Rent Controller, after remand of the case, framed the issue with regard to default in payment of monthly rent prior to and after filing of the ejectment application. The period of default in the present case for the consideration would be (a) October, 1979 to December, 1979, and (b) January, 1980 to 7‑4‑1981, when the Rent Controller passed the order under section 16(1) of the Sind Rented Premises Ordinance, 1979.

2. I have heard Mr. G.M. Saleem, the learned counsel for the appellant, and Mr. Hafiz Abdul Baqi, the learned counsel for the respondent, who is present on pre‑.admission notice.

3. Mr. G.M. Saleem, has argued that the Rent Controller had no jurisdiction to adjudicate upon the default for the period of October to December, 1979, as the order passed by this Court on 17‑1‑1988 requires him to decide only the default committed after filing of the rent application i.e. from January, 1980. I cannot agree to this contention of the learned counsel. The very last two lines of the above quoted order of this Court show that the case has been remanded to the Rent Controller to decide "all the points" in accordance with law. In view of the above, the Rent Controller could go into the default committed by the tenant prior to filing of the rent application also. On merits, it is an admitted position that the appellant for the first time after October, 1979, sent the rent through money order on 19‑1‑1980. It is also admitted that there was no written agreement of tenancy and thus the rent for the month of October, 1979, would fall due on 30‑12‑1979, and, therefore, sending of the rent by money order on 19‑1‑1980 would amount to default in payment of rent for at least the month of October, 1979. Again it is an admitted position that the tenant did not pay the rent from January, 1980 till 7‑4‑1981, when he deposited the rent under the orders of the Rent Controller. Mr. G.M. Saleem, has argued that ever since filing of the rent case, the tenant could not deposit the rent as no application under section 16(1) was made by the landlord till 16‑10‑1980. Even this agrument of the learned counsel is not tenable for the reason that mere filing of a rent case on the ground of default would not absolve the tenant from his liability to pay the rent regularly as required under law. Mr. G.M. Saleem, has casually argued that the respondent /landlord had refused to accept the rent, but there is nothing on the record to support the said contention of the counsel. The next contention of the learned counsel for the appellant is that the respondent had gone away to INDIA during the period October to December, 1979, and, therefore, he could not pay the rent. The evidence on record shows that the respondent as well as his Chowkidar have both filed their affidavits saying that the said Chowkidar had been authorised to receive the rent in absence of the respondent, which fact has not been controverted. Even otherwise, the respondent had returned back from India on 21‑12‑1979 and there is no explanation on record as to why the rent was not paid to him after this date: The Rent Controller has considered the evidence of the parties at length and has relied upon case law as reported in the case of Rai Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339 and Mst. Amina Begum v. Mehar Ghulam Dastgir PLD 1978 SC 220.

4. For the above reasons, I find no force in the present appeal, which is dismissed in limine with no order as to costs. The appellant is directed to handover the vacant possession of the premises in dispute to the respondent within a period of (90) ninety days from the date of this order.

H . B . T . /S‑348/ K Appeal dismissed