Haji FIDA HUSSAIN vs MUHAMMAD IBRAHIM KHAN

1. SALAHUDDIN AHMED, J.-This petition for leave to appeal is from an order of a learned Single Judge of the High Court of Sind & Baluchistan, Karachi, dismissing the petitioner's second appeal.

2. The petitioner was a tenant in respect of a portion of the ground floor in a building known as Queens Court on Victoria Road, Karachi, under the respondent and the latter filed an application for ejectment of the former before the Rent Controller and Civil Judge, Karachi on the grounds that the petitioner was a habitual defaulter and he committed default in payment of rent for the months of July and August, 1968, and that the respondent required the portion occupied by the tenant for expanding the business of the respondent. The respondent has been running a Guest House in the said building.

3. The Rent Controller found that the petitioner was in fact a defaulter and that the portion occupied by the petitioner was genuinely needed by the respondent for the expansion of his business and he accordingly ordered ejectment.

4. It may be mentioned here that the petitioner had admitted in his written statement that he had failed to pay the rents for July and August 1968. He, however, pleaded that the default was not wilful and that there was an agreement as well as the practice that the rents for several months should be paid in a lump sum and that the landlord used to send his man for collection of rents. The petitioner also submitted that in the facts., and circumstances of the case and in view of the fact that the default was for a very short period the Rent Controller should have exercised his discretion under section 13 of the West Pakistan Urban Rent Restriction Ordinance in favour of the petitioner, and should not have granted ejectment on the ground of default. All these pleas were rejected by the Rent Controller.

5. The petitioner's first appeal before the District Court was dismissed by the learned Additional District Judge, who concurred with the findings of the Rent Controller.

6. The learned Single Judge of the High Court in second appeal by the petitioner fully agreed with findings of fact arrived at by the two Courts below.

7. It has been contended before us that section 13 (2) (i) of the said Ordinance provided for the determination of the question of default with reference to the date of the application for ejectment.

8. As the petitioner had already deposited the rents with the Rent Controller before the application for ejectment on the refusal of the landlord to accept 1=m, there was no default.

9. We are unable to accept this interpretation of the law, section 13 (2) (i) and the relevant Explanation to the subsection of the Ordinance run as follows:- "13 (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonble opportunity of showing cause against the application, is satisfied that-

(i) the tenant has not paid or tendered rent due to him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period, for which the rent is payable; or The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make any order rejecting the application.

10. ' Explanation for the purpose of clause-

(ii) Rent remitted by money order to the landlord of deposited in the office of the Controller having jurisdiction is the area where the building or rented land is situated shall be deemed to have been duly tendered."

11. It is thus evident that the rent must be paid within 15 days after the expiry of the time fixed in the agreement of tenancy and in the absence of an agreement within 60 days from the period for which the rent is payable. The tender contemplated under the explanation must be a tender within the time prescribed it Clause (i) of the subsection. Besides the petitioner has already admitted that he was actually in default.

12. On both the grounds of ejectment there were concurrent findings of fact based on evidence and the High Court could not have, therefore, upset them in second appeal.

13. We are unable to find any fault with the High Court. This petition is accordingly dismissed.