Haji ASH RAF UD DIN vs SABIR HUSSAIN AND Another

ORDER

1. ANWARUL HAQ, J.----This petition for special leave to appeal, by the defendant-tenant, Haji Ashraf-ud-Din, is directed against a judgment of a learned Single Judge of the Peshawar High Court dated the 20th of November 1972, whereby an order of ejectment made against him in first appeal by the learned Additional District Judge, Peshawar, was maintained, and the petitioner's second appeal was dismissed.

2. The dispute concerns a shop and Balakhana, situate in bazar Ander Shehr, Peshawar City. The petitioner was the tenant of the original owner Muhammad Sharif, and continued as such, under the mortgagees, Sabir Hussain and Muhammad Hussain, who are the two respondents in this petition. It is common ground that the petitioner was paying rent at the rate of Rs. 90 per month to Muhammad Sharif. However, by a notice under section 13-A of the West Pakistan Urban Rest Restriction Ordinance, 1959, served on the petitioner on 31-5-1969, the respondents required the tenant to pay rent at the rate of Rs. 120 per month. The tenant did not accept this demand and con--tinued to tender rent at the old rate up to 31-10-1969. The payment of rent beyond this period was disputed between the parties. The landlords alleged that the petitioner had failed to pay or tender rent for November and December 1969 as well as January 1970, and accordingly they filed an ejectment application before the Rent Controller on 12-2-1970.

3. By this order dated the 9th of September 1970, the learned Rent Controller held that the tenant was a defaulter, but as the default was not wilful, be need not be ejected.

4. Aggrieved by this order, the mortgagee-landlords filed an appeal, which was accepted by the learned Additional District Judge, Peshawar, by his order dated the 17th of May 1971. After reviewing the evidence brought on the record by the parties he upheld the finding recorded by the Rent Controller on the ques--tion of default committed by the present petitioner, and went on to say that :---- "No peculiar circumstances exist in this case justifying the exercise of discretion in favour of the respondent."

5. On this view of the matter, he directed the ejectment of the petitioner, and allowed him three mouths' period to vacate the shop.

6. Acting in second appeal, the High Court has upheld the concurrent findings of the Courts below on the question of default committed by the petitioner, and has also upheld the view taken by the learned Additional District Judge regarding the liability of the petitioner to be ejected on account of default in the payment of rent.

7. Leave to appeal is sought on the following grounds :-----

(a) that the Courts below have erred in not properly appre--ciating the petitioner's evidence in support of his assertion that he had tried to make payment of the rent to the respondent Sabir Hussain, but the latter had refused to accept the same in the absence of his brother Muhammad Hussain who had proceeded for Haj ;

(b) that in any case the respondents having demanded higher rate of rent than was legally due from the petitioner, the latter was absolved of all responsibility even to pay the contractual rent at the rate of Rs. 90 per month, and accordingly there was no default on his part ; and

(c) that discretion had been properly exercised in favour of the petitioner by the Rent Controller, and the learned Additional District Judge was in error in interfering with the same.

8. After hearing the learned counsel at some length, we are of the view that there is no merit in these submissions. The question whether there was default on the part of the petitioner in the payment of rent for the relevant months, is primarily a question of fact, and has been answered against the petitioner on a proper consideration of the evidence brought on the record. The Courts have rightly taken note of the fact that prior to the months in dispute the petitioner was tendering rent through money orders but for the relevant months he suddenly seemed to have chosen one Gul Muhammad for taking the rent due to the respondent Sabir Hussain, and then keeping quiet for the reason that Sabir Hussain had refused to receive the same -in the absence of his brother Muhammad Hussain. We do not see on what principle we can grant special leave to appeal merely to consider whether the oral evidence adduced by the petitioner should have been accepted or not in the circumstances of the case.

9. Although the contention that in view of the demand of higher rent by the landlords, the tenant stood absolved of his liability to pay even the contractual rent is supported by the judgment of a learned Single Judge of the High Court of West Pakistan at Peshawar in the case reported as Muhammad Sabir v. Abdul Malik (PLD 1967 Pesh. 96), yet this view runs counter to the pronouncement of a Division Bench of that very Court in Rehmat Ali v. Khadeja Hakeem (PLD 1967 Lah. 29). In this latter case, the learned Judges have rightly laid down that the liability to pay or tender the rent due remains on the tenant, irrespective of the higher amount demanded by the landlord. We consider that this is undoubtedly the correct view to take.

10. For the foregoing reasons, we agree with the Courts below that the petitioner was a defaulter in the payment of rent, and in these circumstances; he was liable to be ejected. The learned Additional District judge he rightly observed that there was no peculiar circumstance justifying the exercise of discretion of the Rent Controller in favour of the petitioner. No such circum--stance has been brought to our notice by the learned counsel appearing in support of this petition.

11. For the foregoing reasons, the petition fails and is hereby dismissed.