KAMAL AHMAD Versus RAZIA BEGUM

This appeal at the instance of tenant is directed against the order of the learned 4Xth Senior Civil Judge/ASJ/R.C. Karachi, dated 17‑3‑1985 whereby he has held the issue of default in payment of rent in favour of the respondent and ordered the eviction of the appellant from the commercial premises bearing No.1246/8, Azizabad, Federal 'B' Area, Karachi, within 90 days from the date of the order.

2. I have heard the learned counsel for 'the parties. In the ejectment application the default was claimed to have been committed for the months of January to March, 1979. The ejectment application was presented on 1‑3‑1979. No agreement of tenancy admittedly was executed between the parties and hence the rent is payable statutorily after the expiry of the month. The learned trial Court has held that the rent for the months of January and February 1979 has been paid by be appellant to the respondent through money order which was received by the respondent. He has, therefore, allowed the application on the ground that the rent for the month of March, 1979 was not paid without in the least appreciating that it had not even become due and payable on 1st March, 1979 when the application for ejectment was presented.

3. The learned counsel for the respondent was unable to support the impugned order in this behalf. The impugned order is ex facie unsustainable inasmuch as the rent for the months of March would have fallen due and become payable by and before 10th of April, 1979. The learned trial Court as a matter of fact, I feel sorry to say, failed to appreciate that on Ist March, 1979 the rent for January, 1979 was not even in arrears so as to give the respondent a cause of action for filing the ejectment application against the appellant inasmuch as the rent for January would have become payable on 10th February 1979 and, since there was no mutual agreement between the landlord and the tenant regarding the payment of rent in advance, it could have been in arrears had it not been paid by the appellant within 60 days after it had become due for payment.

4. For the foregoing reasons, the appeal is allowed and the impugned order is set aside. The parties are, however, left to bear their own costs.

M.B.A./K‑118/K Appeal allowed.