MUHAMMAD TARIQ Versus SARDAR KHAN

In this second appeal, order, dated 27‑2‑1997, of the learned Additional District Judge, has been challenged, by which, the ejectment of appellant was allowed on reversal of the order, dated 27‑6‑1995, passed by the learned Rent Controller.

2. A petition under section 13 of Punjab Urban Rent Restriction Ordinance, 1959, was filed by respondents, for seeking eviction of the appellant, from a shop forming part of Property No.H‑1275 Akbari Mandi, Lahore, on the ground of default in payment of rent from 1‑7‑1982 to 30‑9‑1991. The ejectment petition was filed on 10‑10‑1991. In their petition for eviction of appellant, the respondents claimed, that the monthly rent of the rented shop was Rs.500 p.m. which was not paid by the appellant. It was also pleaded, that the appellant failed to pay statutory enhanced rent.

3. The ejectment was resisted by the appellant, who inter alia, maintained, that a rent deed, dated 2‑9‑1979, in favour of Sardar Muhammad Khan and Shamsher Khan, was executed. After the death of Shamsher Khan another rent deed, dated 10‑6‑1981, was executed in favour of Sardar Khan and Mst. Ghulam Gulshan, respondents herein. The respondent maintained, that he had paid Rs.60,000 as Pagri' and that the rent was being regularly paid through Miraj Din son of Feroze Din, a close relative, and representative/agent of the respondents and that the payment was made, till January 1989, whereafter the respondents refused to receive the same through the representative. The rent for February, 1989 was tendered through money order which was refused, whereafter, the appellant, started depositing the same with the permission of the Rent Controller and had made regular deposit.

4. After issues and evidence, the learned Rent Controller, dismissed the ejectment petition, by his order, dated 27‑6‑1995. The view taken by the learned Rent Controller was, that the appellants had made payment of the rent, through the agent of respondent till January, 1989 through receipts and that the rent for February 1989, was tendered through money order which was refused, whereafter the appellant started depositing the same with the orders of the learned Rent Controller and at present, he was depositing at the rate of Rs.625, with the permission of the learned Rent Controller. As regard the plea of default towards payment of statutory increase under section 5‑A of Punjab Urban Rent Restriction Ordinance, it was observed, that the petition was filed on 10‑10‑1991 and the period of three years would expire on 9‑10‑1994. Enhancement of rent would start from 20‑9‑1994. The rent was being deposited at the rate of Rs.625 p.m., inclusive of the increase of Rs.160 p.m. It was further directed that the appellant will increase the rent and would make the payment at the rate of Rs.785 p.m. and would also pay the difference of arrears of Rs.1,280 within one month from the passing of the order. With these observations, the ejectment petition was dismissed.

5. In appeal, the learned Additional District Judge, agreed with the findings recorded by the learned Rent Controller, in so far as the same relate in payment of rent at the rate of Rs.400 p.m. for the disputed period was concerned. The learned Additional District Judge, held that the payment through Miraj Din was valid and that the petitioner did make payment of the rent at the rate of Rs.400 till January, 1989 and deposited the same thereafter. He further observed, that the ejectment petition was filed on 19‑10‑1991 and, therefore, the respondent could plead default for three years, preceding the eviction application. As regards statutory increase, the learned Additional District Judge, took the view, that the increase was automatic. The tenancy started in the year 1979 and, therefore, first increase would take place from July, 1989. The appellant, deposited the rent inclusive of increase under the orders of the learned Rent Controller but prior thereto, a sum of Rs.1,280 was due as arrears from increased rent, which the learned Rent Controller had allowed the appellant to deposit within one month from the passing of the order, dated 27‑6‑1995. The learned Additional District Judge, observed, that by not making the payment of rent at the increased rate and failing to pay Rs.1,250 i.e., the difference of amount, the appellant became defaulter and consequently, he directed, the eviction of the appellant, To assail the order passed in appeal, the appellant has filed this second appeal.

6. Learned counsel for the appellant argued, that the learned Rent Controller as well as learned Additional District Judge, concurrently held, that the appellant was not defaulter in the payment of rent at the original rate till the filing of the ejectment petition. He submitted, that the learned Rent Controller, found that the non‑payment of the increased amount of 25 % was not wilful while the learned Additional District Judge, took the view, that the increase being automatic, the appellant would be liable to eviction due to its non payment. As per decision of the learned Additional District Judge, the monthly rent stood increased to Rs.625 from 1‑7‑1989 and the appellant did not pay the increased amount of 25%, till 19‑10‑1991, and thus, there was a short deposit of Rs.1,250. Learned counsel for the appellant submitted, that the view taken by the learned Additional District Judge, is against law, inasmuch as, the respondent had failed to give any notice for the increase of the rent and 'in the absence of any notice, the appellant could not be held to be wilful defaulter. He further argued, that even otherwise, the appellant having already deposited the difference of the amount and has been regularly paying at the increase rate from the date of order under section 13(6) of Ordinance, 1959, it was not a case of wilful default and, therefore, the eviction was not justified. He further argued, that the conduct of the respondent did not justify indulgence in discretionary jurisdiction, as they did not file any eviction petition from 1982 to 1991 and pleaded default after 9 years, which they failed to prove as held concurrently by the two Courts.

7. Conversely, learned counsel for the respondents, argued that the statement of Miraj Din, was recorded on commission which should not have been considered as the commission was not examined. He further argued, that the appellant did not pay by making increase of 25 % after the enforcement of Act III of 1991, though the increase was automatic. In this way, it was argued, that the appellant became defaulter in payment of increased amount of rent. Learned counsel contended, that the respondents did give a notice to the appellant though it has not been tendered in evidence and a copy of the same is on the record. He submitted, that in any case, the appellants having themselves claimed remand of the case, the matter needs to be remanded, to make further inquiry.

8. The submissions made at the time of hearing has been given due consideration and the evidence led by the two sides has been examined, with assistance of learned counsel for the parties.

9. The learned Rent Controller as well as learned Additional District Judge, have concurrently held, that the rent uptil July, 1989 was paid by the appellants, through Miraj Din, a representative of the landlord, whereafter the same was deposited, in the Treasury, as the respondents had refused to receive the same. The payment through Miraj Din, has been upheld as a valid payment, for cogent reasons and after due appreciation of the entire evidence on record. The argument, that statement of Miraj Din should be excluded from consideration, is without substance. Under the orders of the learned Rent Controller, the statement of Miraj Din was recorded through commission. The statement so recorded and also the report of the commission from part of the record and the same cannot be excluded from consideration. Even otherwise, it was not urged before the Courts below, that the statement of commission should also be recorded. The objection, at this stage, cannot be raised, which otherwise is devoid of any merit. The learned Rent Controller, as well as the learned Additional District Judge, have concurrently found, that the appellants are not defaulter, in the payment of rent for the disputed period, at the rate, in terms of the rent deed. The only dispute remains, for the payment of increased amount of rent in terms of section 5‑A of Punjab Rent Restriction Ordinance. The learned Rent Controller, took the view, that under the orders of the Rent Controller, the appellant had deposited the rent at the increased rate and that the only deficit of Rs.1,280 for the period prior thereto, could not be termed as wilful. He, therefore, directed, that the appellants should deposit the amount within one month, which order has been complied with. Copy of the challan has been placed on the record, showing due compliance of the order of the learned Rent Controller.

10. The plea of the appellants is, that the respondent did not serve any notice, making demand for payment at the increase rate, which is a requirement of law, to urge wilful default. Learned counsel for the respondents, admitted, that no notice was tendered in evidence. He, however, argued, that a notice was sent to the respondents, though the same could not be tendered in evidence and a copy of the same has been placed on the record.

11. I have considered, the copy of the notice, dated 18‑9‑1990, which is available at page 311 on the file of the learned Rent Controller. For reference, the notice is reproduced as under:‑‑

Inayat Hussain Chaudary

M.A. LL.B., Advocate

6/6 Begum Road, Mozang, Lahore Dated 18‑9‑1990

L.H.C. No------------

Registered A.D.

Muhammad Tariq,

S/o Ch. Khadim Hussain, Caste Rajput,

R/o House B/3704, Islam Gali, Inside Lohari Gate,

Lahore.

Sir,

Under instructions from my clients Sardar Khan son of Muhammad Ismail and Mst. Ghulam Fatima, widow of Shamsher Khan, residents of House No. 19, Ram Gali No. 11, Outside Akbari Gate, Lahore, I serve you with the following notice:‑‑‑

(1) That you instituted suit 221/1 for permanent injunction which has been dismissed/disposed of by Rai Nazir Ahmad, Civil Judge, Lahore, on 4‑9‑1990.

(2) That in para. No.2 of the plaint you had alleged that you have been regularly paying the rent to my clients regarding Shop No.H‑1275, Akbari Mandi, Lahore, and there is no default in this regard.

You are required to supply all the treasury challans in your possession showing deposit of rent of shop in your possession within 7 days of receipt of this notice failing which it will be safely taken that no rent has been deposited by you in the Court of Rent Controller, Lahore.

Yours faithfully

(Sd.)

(Inayat Hussain Chaudhry)

Advocate,

6/6, Begum Road, Lahore.

12. From the bare reading of the notice, it will be seen, that there is no demand for the payment of rent at the increased rate. The notice only, provides, that the appellants had filed a suit for permanent injunction which was deposited on 4‑9‑1990 and that in para. 2 of the plaint they had alleged regular payment of the rent of the shop and absence of default. The appellant was, therefore, required to supply treasury challans. It is not claimed in the notice, that the rent stood increased by virtue of any statutory increase and also that the appellant should make payment of the rent in question with any increase. This being so, even if the notice is taken into consideration, the same would not strengthen the case of respondents nor on the basis thereof, it can be pleaded, that the appellants were duly notified or called upon to make increase in payment of rent, on account of statutory increase.

13. In National Development Finance Corporation, Shahrah‑e‑Quaid‑e Azam, Lahore v. Shaikh Naseem‑ud‑Din and 4 others (PLD 1997 SC 564), it was held as follows;‑‑‑

"The learned Judge in Chamber while holding that the petitioner had become defaulter in payment of rent, went on to observe as follows:‑‑‑

'By virtue of the Punjab Urban Rent Restriction Ordinance, 1959 (Amendment) Ordinance 13 of 1990 which was. promulgated on 6‑6‑1990, rent stood automatically enhanced with effect from 1‑7‑1989 by 20 % . The Ordinance further provided for period of 60 days for payment of the arrears which fell due on account of promulgation of the Ordinance. Admittedly the respondent failed to discharge this liability within the prescribed period. The first effort to make payment on the enhanced rate was made by the respondent vide Exh.A‑4 when an application for permission to deposit the rent on that rate was made by the respondent. By that time, respondent has already become defaulter. "

It is difficult to agree with learned Judge in Chamber that because the rent was enhanced to the extent of 20% with effect from 1‑7‑1989 by an Ordinance, hence mere non‑payment of rent according to enhanced rate, without anything else on the record, would result in penalizing the tenant. The word "default" denotes something more than mere non‑payment of rent. It has not come on record if the respondents in consequence of statutory increase in rate of rent by 20% sent any notice of such increase to the petitioner. In the circumstances, we are unable to agree with the observation made in the impugned judgment that the petitioner had become defaulter in payment of rent".

14. In the precedent case, it was held, that the word "default" denotes something more than mere non‑payment of rent. In the *aid case, in the absence of any notice requiring payment, in accordance with statutory increase, the non‑payment, with the statutory increase was not considered to be a wilful default.

15. Even otherwise, in law, mere non‑payment of rent does not ipso facto result on the eviction of tenant unless it is proved that the default was wilful which attracts exercise of discretion in favour of landlord. In this case, the respondents could not substantiate or prove the plea of default in payment of rent. Both the Courts below concurrently found, that the rent was initially paid through the agent and thereafter it was regularly deposited and no default in that regard was committed. Regarding statutory increase, the respondent neither pleaded that a notice was served upon the appellant for payment of rent in terms of the statutory increase nor led any evidence. The notice, copy of which has been placed on the record, does not make any demand for payment of rent at the increased rate and it only refers to the delivery of treasury challans. In this view of the matter, it is not a case in which no notice has been undeniably being served upon the appellants for enhancing the rent or making payment inclusive of any increase. In the absence of any demand, it cannot be construed, that the appellants had committed a wilful default. Even otherwise, the conduct of the appellants, is obvious inasmuch as, they complied with the order of the Rent Controller and deposited the rent inclusive of the statutory increase and also deposited the deficit prior to the filing of the petition, within the time giving by the Rent Controller in his ultimate order. This being so, no ground was made out for the exercise of discretion against the tenant. As regard the argument, that the case should be remanded, the same is devoid of any force. The remand was pleaded, for proving the notice. Since the notice has been taken into consideration, at this stage, as has been noted supra, and the same does not indicate, any demand for payment of rent at the increased rate, therefore, nothing is left behind for further inquiry.

16. The learned Rent Controller, for solid reason concluded, that no wilful default was committed. The view taken by the learned Additional District Judge, is violative of the rule laid by the Hon'ble Supreme Court, is the abovenoted case, therefore, the same cannot sustain.

17. For the reasons above, this appeal is accepted, the impugned order, dated 27‑2‑1997, passed by the learned Additional District Judge in appeal is set aside and the order of the learned Rent Controller, dismissing the eviction petition, is restored. In consequence, the eviction petition, of the respondent, stands dismissed. Parties to share their own costs.

A.A./M‑568/L Appeal accepted