MESSRS TEXTILE TRADING COMPANY LTD. vs Syed JALILUR REHMAN AND 7

1. SALAHUDDIN AHMED, J.-This leave petition is from the order of a learned Single Judge of the High Court of Sind & Baluchistan allowing the second appeal of the respondents under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance).

2. The petitioner is a Limited Company and has been a tenant in respect of the shop in question, situated in Gordhandas Cloth Market, Bunder Road, Karachi since the year 1947. On 17-9-1965 the respondents applied under section 13 of the Ordinance for eviction of the petitioner on the ground of default in payment of rents from September 1964 to 31st August 1965. The rents were claimed at the monthly rate of Rs. 82.50 Paisa plus taxes Rs. 27.50 Paisa totalling an amount of Rs. 110 per month. The petitioner contested the application for eviction and denied that he was a defaulter. His case was that the rent collector of the respondents used to come at intervals of several months and collected the rents in a lump sum for the period for which the rents were due. As the rent collector failed to turn up for collection of rents since September 1964, the aforesaid rents got accumulated. It was thus---claimed that the application eviction was mala fide.

3. The Civil Judge, 1st Class, Karachi (the Controller) allowed the said application and passed an order of ejectment against the petitioner. The petitioner's first appeal from this order was however, allowed by the Additional District and Sessions Judge. The learned Additional District and Sessions Judge found that the respondents had demanded enhanced rents ; that the petitioner's default was partly attributable to the respondents ; and that in the facts of the case it was appropriate to have exercised the discretion under section 13 of the Ordinance in favour of the petitioner.

4. The learned Single Judge of the High Court allowed the Second Appeal of the respondents on the grounds that there was no agreement between the landlord and the tenant whereby the rent was payable only when the rent collector of the respondents turned up to collect it ; and that the first appellate Court had exercised its discretion arbitrarily.

5. Mr. A. K. Brohi, learned counsel appearing on behalf of the petitioner, has contended that there was no default in the case inasmuch as there was an implied agreement that the rents were to be paid in a lump sum and only when the rent collector of the respondents would come and collect them.

6. The implied agree--ment was never pleaded by the petitioner in his written statement. Such practice of payment of rents in a lump sum has been denied by the rent collector appearing as a witness on behalf of the respondents and the petitioner has failed to prove that the practice was so consistent as to give rise to an implied agreement. Both the Controller and the First Appellate Court have concur--rently found that there was default on the part of the petitioner, and this concurrent finding of fact has been accepted by the learned Single Judge of the High Court. There is, therefore, no substance in this contention.

7. Mr. Brohi has next contended that the petitioner was not bound to pay rents at the enhanced rate demanded by the respon--dents, and there was therefore, no default. The records show that the Controller had fixed the rent at the rate of Rs. 82.50 Paisa exclusive of taxes. This entitled the respondents to claim the rents inclusive of taxes, and there was, therefore, no demand of enhanced rents.

8. Mr. Brohi has finally contended that the First Appellate Court had rightly held that the discretion lodged with the Controller under the Ordinance should have been exercised in favour of the appellant and the High Court acted illegally in interfering with this finding of the First Appellate Court. The petitioner deliberately failed to pay rents for a whole year and there is nothing to show that he did so for reasons over which he had no control. He was thus clearly a defaulter within the meaning of section 13(2)(1) of the Ordinance. 1n these circumstances we are unable to find fault with the High Court for holding that the discretion lodged with the Controller under the Ordinance was exercised arbitrarily in favour of the appellant, particularly when the Controller himself had allowed the respondents' application for eviction.

9. The petition is accordingly dismissed. The petitioner is allowed time for six months to vacate the shop. The sum of Rs. 5,000 deposited by the petitioner in pursuance of the Stay Order of this Court dated the 15th August 1972, will be adjusted towards the rents due from the petitioner at the rate of Rs. 85.50 Paisa per month and the balance, if any, will be returned to him.