Syed WAZIR ALI SHAH vs GHULAM RABBANI AND Other

ORDER

1. ABDUL KADIR SHAIKH, J.-Facts of this case, briefly stated, are that on 7th September, 1966 respondents filed an ejectment application, against petitioner, their tenant, on the ground that he had failed to pay rent at the rate of Rs. 30 per month from May, 1957 onwards. During the pendency of the proceedings, the Rent Controller, Hyderabad directed the petitioner, by the order dated 15th March, 1969 under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, to deposit Rs. 1,950 as arrear of rent from 7th September, 1963 to 28th February, 1979 before 20th May, 1969, and also future rent @ Rs. 30 per month.

2. On 21st September, 1.971, respondents applied to the Rent Controller for petitioner's ejectment for the reason that he had failed to deposit rent in Court in terms of the order of the Rent Controller dated 15th March, 1969. The Rent Controller allowed the application by the order dated 25th August, 1972 for the reasons which may usefully be reproduced as under :- "The opponents had preferred an appeal against the order dated 15-3-1969, but the same was also dismissed on 20-2-1970. Thereafter the dismissal of appeal the opponent has not deposited the arrears of rent. According to Nazir's report the opponent has deposited only future rent for the month of April, 1969. The opponent has failed to produce receipts for the deposit of rent. There is clear default on the part of opponent and therefore, his defence is struck off. The opponent is directed to vacate the premises in question within 15 days of this order and put the applicant in vacant possession of the same."

3. Petiti6ner's appeal against this order was dismissed by the Second Additional District Judge, Hyderabod, and Second Appeal in the Sind High Court also failed. He now seeks leave to appeal from the judgment of the High Court.

4. Mr. Faizanul Haq, learned counsel for the petitioner, submits that the default on petitioner's part, if any, was condoned by respondents by implication, in that, they applied for his ejectment after lapse of more than two years. Learned counsel further submits that two of the co-landlords had died during the proceedings before the Rent Controller and their legal representative not having been brought on record, the proceedings auto--matically abated.

5. Both the points have already been dealt with and rightly rejected by the High Court. As regards the second submission made by the learned counsel, he is not able to show that it was raised either before the Rent Controller or before the first appellate Court. Moreover, all the applicants .For petitioner's ejectment were the legal representatives of Muhammad Ibrahim, and the learned counsel is not able to state if the two applicants who died during the proceedings before the Rent Controller, had left any other legal representative apart from those who were already on record.

6. There is, therefore, no merit in this plea.

7. On the facts of the case, it cannot also be said that the respondents had condoned the default committed by the petitioner in depositing rent in Court. In this behalf, the High Court rightly noticed the fact that it was petitioner's own plea before the Rent Controller that he bad deposited rent in Court in compliance with the earlier orders passed by him, but the receipts of payment were not available with him. In spite of the fact that the Rent Controller gave an opportunity to the petitioner to produce the receipts, he failed to do so on the facts proved in evidence, learned Rent Controller very rightly struck off petitioner's defence and ordered his ejectment. No exception can therefore be taken with the judgment of the High Court. The petition is accordingly dismissed in limine.

8. S. Q.