1/22/24, 10:01 PM 1986 C L C 702

1986 C L C 702

[Karachi]

Before Muhammad Zahoorul Haq, J

Sh. FAZALUR REHMAN‑‑Appellant

versus

MUHAMMAD YOUSUF‑‑Respondent

First Rent Appeal No. 984 of 1982, decided oft 15th

October, 1985.

Sind Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑S. 21(1)‑‑West Pakistan Urban Rent Restriction

Ordinance (VI of 1959), S.13(2)‑‑Default‑‑Proof‑‑Tenant
admitted that he had not paid rent for relevant period, but
he gave explanation for non‑payment‑ Tenant also
explained that he repaired one burnt electric motor for
landlord and landlord allowed him to adjust amount of
repair charges of motor in rent of subsequent months and
he did accordingly‑‑Statement of tenant supported by his
witness remained unrebutted as landlord himself had not
chosen to come in witness‑box to deny that statement‑
Statement of tenant, held, was rightly believed by the Rent
Controller and discretion was rightly exercised in favour
of tenant not to direct ejectment of tenant in
circumstances.

Shafaat Hussain for Appellant.

Abdul Aziz Shaikh for Respondent.

Date of hearing: 7th October, 1985.

JUDGMENT
This appeal is directed against the order of Xth Civil
Judge/Rent Controller, Karachi, whereby the application
for ejectment filed by the appellant was dismissed. The
rate of rent and factum of tenancy is not 9isputed in the
case.

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Application for ejectment was filed on 25‑5‑1977 on the

ground that four months rent from January, 1977 to April
1977 at the rate of fts. 75 per month had not been paid by
the respondent. The respondent resisted the application
and stated in his written statement that in January, 1977
the appellant had given him a burnt electric motor for
repairs and he winded the motor and changed its capacitor
and the bill for the same amounted to Rs. 300 and as
against that bill the appellant had allowed the respondent
to adjust the same in the monthly rent of Rs. 75 and that in
fact the respondent had paid the rent of four months in
advance in January, 1977.
2. The issue of default was framed. The appellant did not
examine himself but his Rent Collector namely, Akhtar
Hussain, deposed on his behalf. In his affidavit he stated
that the respondent was a regular defaulter in the payment
of rent and that he had neglected to pay the four months
rent from January, 1977 to April, 1977. He further stated
that the appellant had not asked the opponent to repair the
water pumping machine and never allowed the adjustment
of Rs. 300 from the monthly rent.

In cross‑examination he denied that he had given a

pumpint motor to the respondent to repair and that
adjustment of four months rent was to be allowed against
the bill of the said repairs.

3. The respondent filed his personal affidavit in support of

his defence and stated that he never made any default in
payment of rent and that the appellant had given him burnt
electric motor for repairs and that he did repairs and gave
bill of Rs. 300 to the respondent for payment who told
him to adjust the same out of the rent and, therefore, he
adjusted the amounts in the months of January, February,
March and April, 1977. In cross‑examination he admitted
that he had not paid the rent for the relevant period
because he had carried out the repairs upon motor with the
consent of the applicant. He denied that the motor had not
become defective. The respondent had also produced copy
of the bill of Rs. 300 dated 9‑1‑1977. He was asked a
question that the bill does not bear the receipt of the
appellant and he admitted that it was so.

4. One Abdul Hafiz filed his affidavit in support of

respondent where it was stated that Muhammad Yousuf
had given bill of Rs.300 for repair to the landlord of

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Shakil Mansion and this amount was to be adjusted in the

rent. In cross‑examination he stated that applicant was
known to him since long and that the bill was given to the
son of the applicant but he did not remember his name. He
admitted that he did not know for what purpose that bill
was and that no conversation regarding the adjustment of
the rent was made in his presence.

5. The Rent Controller believed the statement of the

appellant and his witness, Abdul Hafiz, in respect of the
giving of the bill of Rs. 300 on account of rewinding of
the water motor. He came to the conclusion that the
appellant had not been able to give a single instance where
the respondent had committed any default in payment of
rent nor he had produced any witness in support of that
statement. He was further of the view that there was
actually default of only one month's rent of January, 1977
after taking into consideration the grace period of 60 days.
Eventually he was of the view that there was no default
and, therefore, he rejected the application.

6. Mr. Shafaat Hussain argued that the respondent had not

been able to prove that he had repaired the motor winding
machine. However, there is statement of the respondent to
that effect supported by the statement of Abdul Hafiz, it is
correct that Abdul Hafiz has admitted that he did not hear
the conversation but in respect of the handing over of the
bill Abdul Hafiz was certain that the respondent had
handed over the bill to the son of the appellant. In any
case, the statement of respondent alone could have been
believed by the Rent Controller particularly in view of the
fact that the appellant himself had not chosen to come in
the witness‑box. The respondent had alleged that it was
the appellant who had given the motor for repairs and the
respondent had supported the same by his personal
statement in Court on oath and, therefore, if the appellant
wanted to deny the same then he had to take the risk of
going into the Court and denying that position, but he did
not choose to do so and, therefore, in these circumstances
the statement of the respondent alone could have been
believed by the Rent Controller.

7. The above position I have considered only for the

purposes of considering whether the discretion in respect
of allowing ejectment or not can be exercised by the Rent
Controller. The non‑payment of rent of the relevant period

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was admitted by the respondent but he had a reason for

that non‑payment and, therefore, although in law the
respondent was not justified to claim that he had made the
payment towards the adjustment of the bill of repairs still
the same could have been considered for the purpose of
considering the question whether in the circumstances of
the case an ejectment under section 13(2) of West Pakistan
Urban Rent Restriction Ordinance, 1959, should be
allowed or not and, therefore, the Rent Controller had
come to the conclusion that there was no wilful default in
the factum of non‑payment of rent of the relevant period
within time.

8. The case was covered by the provisions of West

Pakistan Urban Rent Restriction Ordinance, 1959, as it
has been filed in 1977. Since the Rent Controller has a
discretion under section 13(2) of the said Ordinance to
order ejectment or not to order ejectment in spite of
non‑payment of rent because the word used is "may",
therefore, in spite of the fact that non‑payment of rent for
period of January to April, 1977 having been admitted by
the respondent the Rent Controller was justified in treating
the explanation of the respondent as sufficient reason not
to direct the ejectment of the respondent.

I am in agreement with that decision and I am of the view

that the discretion exercised by the Rent Controller in the
circumstances of the case was not in any way an abuse of
the discretion or that it was not a judicial discretion.

9. Appellant's counsel submitted that two months' rent at

least was in default on 25‑5‑1977. Application was filed.
This submission is justified because rent of January, 1977
was due on 2nd April, 1977 i.e. 60 days after it had
become due on first February 1977, and similarly rent of
February being due on first March, 1977 should have been
paid by 29th April, 1977 and, therefore, when the
application was filed on 25‑5‑1977 two months' rent was
due. But the appellant had claimed four months' rent
having become in default which was certainly an incorrect
position because the rent of March could have been paid
by 30th May, 1977 and, therefore, rent of March and April
had not become in default and to that extent the
application was premature. Therefore, it was only two
months rent which had not been paid by the respondent by

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25‑5‑1977 and since he had given reasonable explanation

for its non‑payment, therefore, the ejectment was refused.

Consequently, I had dismissed this appeal by a short order

on 7‑10‑1985 after hearing the learned counsel for the
parties. These are the reasons of the same.

H . B . T Appeal dismissed

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