Ch. GHULAM NABI Versus Ch. ABDUL RAZZAQ KHAN

This writ petition arises out of order dated 24‑10‑1981 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal against the order dated 17‑2‑1980 of the learned Rent Controller, directing petitioner's ejectment from the disputed property.

2. The facts relevant for the disposal of the present petition are that the respondent No. 1 sought ejectment of the petitioner from the premises in dispute on grounds that he committed default in payment of rent and that he required the ~s ' same for his personal use and further that he damaged the property to dispute. The ejectment petition was resisted by the petitioner. It was alleged in the written statement that he had already paid Rs. 10,000 to the petitioner through a receipt and agreed that whenever the. petitioner was not in a position to pay rent for any, month the afore‑said amount would be adjustable towards the rent payable by him. The learned Rent Controller vide his order dated 18‑3‑1977 passed under section 13(6) of the Rent Restriction Ordinance, 1959 directed the petitioner to pay arrears of rent with effect from January 1976 to February 1977 at the rate of Rs. 190 p.m. by 13‑4‑1977 with the stipulation that the amount so deposited would not be withdrawn by the respondent till the decision of the ejectment petition without the permission of the Rent Controller. He further directed the petitioner to deposit future rent at the same rate before 15th of each succeeding month. It appears that the petitioner on 4‑4‑1977 filed an application seeking review of the afore‑said order claiming ‑ adjustment of the rent out of Rs.10,000 already deposited by him with the respondent. The learned Rent Controller vide his order dated 5‑4‑1977 allowed him to deposit arrears of rent within one month at his own risk from the date of order. The petitioner deposited the amount of Rs. 2,280 on 12‑5‑1977 i.e., within the extended period. The respondent thereafter moved an application for striking off the defence of the petitioner for non‑compliance of the order dated 18‑3‑1977 earlier passed by the learned Rent Controller. The petitioner resisted the application and stated that he could not deposit the exact arrears of rent amounting to Rs. 2,660 on account of mistake in calculation of rent and further that he could not deposit rent for the month of February 1979 before 15th of March, 1979 as he had fallen ill during the period viz 3‑3‑1979 to 14‑3‑1979. The learned Rent Controller after hearing the parties, vide his order dated 17‑2‑1980 held that the petitioner did not comply with his order dated 18‑3‑1977, struck off his defence and directed his ejectment from the disputed property allowing him two months time for vacation of the house. The petitioner preferred an appeal against the afore‑said order which was dismissed on 24‑10 1981 by the learned Additional District Judge, Lahore. Hence this petition.

3. Learned counsel for the petitioner contended that the learned Rent Controller did not take into consideration the plea of the petitioner that he had already advanced Rs.10,000 to the respondent No. 1 for adjustment towards rent at the time of passing the order dated 18‑3‑1977 under section 13(6) of the Rent Restriction Ordinance, 1959. It was submitted that it was incumbent upon him to have determined tentatively arrears of rent payable by the petitioner, as such, the order passed by the learned Rent Controller striking off his defence and maintained in appeal are of no legal effect. It was further contended that the default committed by the petitioner for payment of rent for the month of February 1979 before 15th of March, 1979 was not wilful as the petitioner had fallen ill and in proof of the same he had submitted a certificate showing his I illness for the period 3‑3‑1979 to 14‑3‑1979.

4. Learned counsel for the respondent opposed this petition and stated that the learned Rent Controller had taken into consideration the plea raised by the petitioner with regard to arrears of rent while passing the order under section 13(6) of the Rent Restriction Ordinance, 1959 inasmuch as that he did not permit withdrawal of the amount deposited by the petitioner in compliance of the afore‑s4id order. It was also stated that the plea raised by the petitioner required determination after recording of evidence particularly when the execution of the receipt showing payment of Rs. 10,000 by the petitioner to the respondent had categorically been denied. The petitioner did not comply with the order of the learned Rent Controller and the order directing his ejectment was legal. It was also stated that the learned Rent Controller as well as the first appellate authority had taken into consideration the medical certificate placed by the petitioner on the record for showing that the default committed by him in payment of rent for the month of February 1979 was not wilful, but the explanation being afterthought did not find favour with them and held the petitioner defaulter.

5. I have considered the contentions raised by learned counsel for the parties and have gone through the documents on the file. The execution of the receipt placed on the file by the petitioner showing payment of Rs. 10,000 adjustable towards the rent payable for the disputed property was denied by the respondent No. 1. It appears that the learned Rent Controller had taken into consideration this plea of the petitioner and only on that account he directed that the arrears of rent deposited by the petitioner would not be withdrawn by the respondent till the decision of the case. Even if it is assumed that he specifically did not take into consideration this plea of the petitioner the order directing him to pay future monthly rent before 15th of each succeeding month from 18‑3‑1977 was also not complied with by the petitioner inasmuch as that he committed default for the payment of rent for the month of February 1979 before 15th of March, 1979 ailment. The medical certificate produced by the petitioner showing his aliment with effect from 3‑3‑1979 to 14‑3‑1977 was not considered enough to absolve him from the deposit of rent for the month of February 1979 before 15th B of March, 1979. The nature of the disease with which the petitioner suffered was considered not so serious so as to incapacitate him from directing someone to make deposit of the rent before the stipulated date. I have also perused a photostat copy of the medical certificate which does not bear a date of issue but it appears from its .contents that it was issued subsequent to the period of ailment. It was observed in the impugned order that this was placed on the record after the respondent had moved application for striking off defence. The learned Rent Controller as well as the first appellate authority, therefore, rightly did not consider the explanation given by the petitioner for the default as sufficient to show indulgence in his favour.

6. There is no merit in this petition and the same is therefore, dismissed, with no order as to costs.

M.Y.M./2625/L Writ refused.