MUHAMMAD HUSSAIN Versus MUHHAMAD SIDDIQUE

1. MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of this Court is directed against the judgment, dated 25th of May, 1988 of the Lahore High Court; whereby petitioner's Constitutional Petition against his eviction from the shop in dispute under the Rent Restriction law, was dismissed.

2. The respondent No.l had sought eviction of the petitioner on the grounds including that of default in payment of rent for one month. The shop in dispute was purchased by Muhammad Siddique, respondent on 25‑9‑1986. He served a notice under section 13‑A of the Punjab Urban Rent Restriction Ordinance, on the petitioner on 4‑10‑1986. Without waiting for sixty days period with regard to the payment of rent for the month commencing from the date of sale, viz. 25‑9‑1986 to 25‑10‑1986 Muhammad Siddique, respondent, filed an eviction application, on grounds including that of default, on 2‑11‑1986. The petitioner who was closely related to the earlier owner! vendor of the shop took the plea that there was no relationship of landlord and tenant. However, after about five months, he filed an application fop amendment of the written statement accepting the said relationship and seeking permission to deposit the relvant rent. This application was dismissed. His attempt to get the record corrected in this behalf through a writ petition in the High Court, also failed. The learned Rent Controller thereafter without trial of the issues regarding grounds of eviction directed the petitioner's ejectment, mainly on the ground that he had denied the relationship of landlord and tenant; and thus was 'not entitled to lead any defence' nor could he seek any relief with regard to his attempt to pay the relevant rent during the pendency of the proceedings. The learned District Judge held it to be a case of forfeiture of tenancy. In addition it has also been held by the High Court that plea that when the eviction petition was filed, there was no default, was not tenable, as the cause of action had matured during the pendency of the proceedings before the learned Rent Controller.

3. We have heard both the learned counsel at some length. While agreeing that cause of action can mature during the pendency of an I eviction petition; it has to be clarified that it depends upon the circumstances of each case and the nature of the cause of action. In this case, it cannot be ignored that the default in payment of rent is from the date of the purchase of the shop by the respondent; namely, 25‑9‑1986 to 25‑10‑1986. The notice was sent on 4‑10‑1986. It means that if the date of the notice is taken into account the one month period of default would fall short by several days. Not only this, the petitioner admittedly was not a continuing tenant under the respondent. Therefore, he had a right either to contest hi'‑s‑Tia‑bility to pay rent to the new owner or to pay the same within sixty days from the date of the notice, if not from the last day of the default , namely, 25th October, 1986. Admittedly, there was no written agreement of tenancy in this case. There was no order of deposit of rent under section 13(6) of the Ordinance. For all these reasons, therefore, it was not a clear case of maturity of cause of action during the pendency of the proceedings.

4. Assuming for the sake of argument that the cause relating to non‑payment of rent had matured in the above‑noted circumstances of the case, the petitioner should not have been denied the benefit of exercise of discretion, simply because he had not paid the rent for the default period. This aspect has not been paid due attention.

5. He has been denied relief on the ground that for five months during the pendency of the petition for eviction he had denied the relationship of landlord and tenant and thus was not entitled to be heard in his defence. Although the relationship of the petitioner with the previous owner (Sala/Behnoi) has not been appreciated in the context of petitioner's denial of tenancy under the respondent, however, if after five months he admitted the relationship of landlord and tenant, he was definitely in a much better position with regard to the relative standards in honesty than those who fight upto the higher Courts on wrong pleas and then seek discretionary reliefs. In this case, instead of rewarding the petitioner for his honesty, before the trial Court for admitting the correct position and then for making an attempt for correction of the record through a writ petition filed in the High Court, he had been on the contrary, punished. The spirit of the Rent Restriction Law with regard to the rent liability of the tenants has not correctly been appreciated by the learned Courts below. Although the amended law [proviso (second) to section 13(2)], relating to the offer of the tenant to pay the rent for the default period after commencement of the proceedings, does not in terms apply to the present case; but, the relevant amended provision has to be kept in view when examining cases like the present one in the context of exercise of discretion in favour of the tenant on the question of default in payment of rent. Looked at from this aspect of interpretation of law, it was a clear case of exercise of discretion in favour of the tenant and not in favour of the landlord. It has been totally ignored by the learned Courts below.

6. The question whether on denial of relationship of landlord and tenant, the tenant forfeits the right of tenancy or defence dealt with under the Rent Restriction Laws, does not require any further examination. The same stands concluded by the judgment of this Court in Makhan Bano v. Abdul Ghani PLD 1984 SC 17. It has been held that the tenancy dealt with under the Rent Restriction Law, is not forfeited, on account of the denial of tenancy; though, this aspect can be examined in relation to the exercise of discretion; I which in this case had to be exercised in favour of the petitioner.

7. In the light of the foregoing discussion, this appeal is allowed and the impugned judgment and order are set aside. The case is remanded to the trial Court for decision of the issues, other than those of default in payment of rent and forfeiture of tenancy. There shall be no order as to costs.

8. M.B.A./M‑570/S. ???????????????????????????????????????????????????????????? Appeal allowed.