ZIKAR MUHAMMAD vs Mrs. ARIFA SABIR and anothers

' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 23-4-1999, passed by a learned Single Judge of the Lahore High. Court, Lahore in F.A.O. No,227 of 1997, in a rent matter.

2. Brief facts are that respondent No,1 herein rented out her House No,238/3, Block N, Defence Housing Society, Lahore to the petitioner on 1-2-1989, initially for a monthly rent of Rs,6,000 which through periodical increases came to be settled at Rs,7,500. On 29-11-1994, she filed an ejectment application against the petitioner on ground of personal need and withholding of rent for the months of October and November, 1994.

3. Petitioner contested the application by controverting the allegation levelled therein, stating that the respondent resided with her husband in Saudi Arabia and that she refused to accept the rent for the months of October/November, 1994, remitted through Money Order and Bank Draft with mala fide intention only to get the rent increased.

4. The learned Additional Rent Controller vide order dated 22-3-1995, directed the petitioner to pay an amount of Rs,37,500 as arrears of rent and to pay future monthly rent from March, 1995 onward before the 5th of each succeeding month. Despite specific directions by the learned Rent Controller, to deposit the future monthly rent by 5th of each succeeding month, the petitioner made delayed payments of future monthly rent, whereupon the respondent filed an application on 22-4-1997 before the learned Rent Controller for striking off the defence of the petitioner due to late deposit of rent for 8 months during the year 1995. The learned Rent Controller, allowing the application, struck off the defence of the petitioner and passed ejectment order. The petitioner challenged the above orders through F.A.O. No,227 of 1997, before the Lahore High Court, Lahore, which was dismissed vide the impugned order. Hence this petition.

5. Sheikh Anwar-ul-Haq, learned counsel for the petitioner contends that while passing an ex parte order against the petitioner the learned Judge in Chambers failed to appreciate that it is a well- settled law that where a plaintiff/ petitioner does not appear before the Court on a date of hearing, his case has to be dismissed in default and not to be decided on merits. The contention is devoid of any force, in that, the petitioner had, admittedly, defaulted in the payment of rent wilfully and due to negligence .

6. Learned counsel for the petitioner further submits that the landlord never filed any objection for the deposit of rent from 28-11-1995 to 1-10-1997, and in such circumstances, the application of the respondent/land-lord at such a belated stage should not have been allowed.

7. We are not impressed by the above plea. The learned Judge in Chambers has passed a well- considered order holding therein that, in the circumstances of the case, there was no good cause or reasonable explanation for the delay/negligence in the payment of rent, committed by the petitioner. He rightly concluded that the finding had been recorded by the learned Rent Controller that the petitioner had committed a willful default. Clearly his defence was rightly struck off by the Court below. No valid ground exists for interference in the impugned order. Resultantly, the petition is dismissed and leave declined.

8. However we allow four months' time to the petitioner to vacate the house in dispute and hand over vacant possession thereof to the respondent by 5-4-2000, failing which the petitioner shall be evicted without notice and with police aid.