MALIK TALKIES DISTRIBUTORS Versus MEHBOOB ELLAHI

The respondents filed an application for ejectment of the appellants on 31‑7‑1993. The ejectment was sought on the ground that the appellants have not paid statutory increase in the rent under section 5‑A of the Punjab Rent Restriction Ordinance, 1959. The appellants filed a reply and stated that neither they are aware of the said statutory provision nor the respondents ever demanded rent with the said increase. However, the moment they acquired the knowledge of the ejectment petition, wherein for the first time a demand for the said increase was made, they deposited the payable amount in Court after the respondents had refused to receive the same when they sent the same through money order. Following issues were framed;

(1) Whether respondents have made default in the payment of rent, if so, its effect? OPA.

(2) Whether petition is outcome of mala fide? OPR.

(3) Whether Lahore is not an urban area in view of section 2(3) of Urban Rent Restriction Ordinance, if so, its effect? OPR.

(4) Whether, present Court is not a Rent Controller? OPR.

(5) Whether, notice under section 13‑A of Rent Restriction Ordinance was not served upon the respondents, if so, its effect? OPR.

(6) Relief.

Evidence of the parties was recorded. The learned Rent Controller proceeded to allow the application and passed an ejectement order on 31‑7‑1993. The appeal filed by the appellants was heard by a learned Additional District Judge, Lahore, who dismissed the same vide order, dated 6‑5‑1997.

2. The learned counsel for the appellants contends with reference to the case of National Development Finance Corporation, Shahrah‑e‑Quaid‑e- Azam, Lahore v. Shaikh Naseem‑ud‑Din and others (PLD 1997 SC 564) that the appellants should not have been ordered to be ejected on the said ground in the absence of notice for demand by the respondents. Learned counsel for the respondents on the other hand supports the impugned order.

3. I have gone through the record. I tray state here that in a later judgment in the case of Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCMR 207) the said view expressed in N.D.F.C.'s case has been modified. Their lordships have held that service of notice under section 5‑A of the said Ordinance by a landlord to a tenant for statutory increase of rent is not condition precedent to invoke jurisdiction of the Rent Controller. However, their lordships have been further pleased to observe that a duty was enjoined upon Rent Controller to examine in each case whether default in payment of statutory increased rent is wilful or otherwise':. I have examined evidence in this case in the light of the said observation of the apex Court. I find that Kh. Mehboob Elahi respondent entered the witness‑box as A.W.1. He was cross‑examined. In reply to a question in the cross‑examination he states that:

Learned counsel for the respondents is not in a position to controvert the factual position that immediately after their service in the ejectment petition, the appellants had tendered the rent to the landlord with statutory increase , and then had deposited the same in Court. In tact, both the learned Courts have so observed in their respective orders. Although the ignorance of law pleaded by the appellants has, is of course no excuse, yet the said statement as a statement of fact, has to be considered in the light of attending circumstances of the case as are apparent on the face of the record, i.e. absence of any demand by the respondents over a period of several years to claim the statutory increase in the rent and the prompt efforts on the part of the appellant to pay or deposit the increased rent in Court. Even in respect of agreed rent a default may not result into the ejectment as would be evident from very words of section 13(1) of the said Ordinance itself. The Rent Controller is vested with a discretion, of course to be decided in a lawful manner.

4. In the present case, the learned Rent Controller has not performed his duty enjoined upon him by law to examine the said matter.

5. As a result of the above discussions, I do not find any wilful default on the part of the appellants in their failure to pay the amount of statutory increase in the rent. I, therefore, allow this S.A.O. set aside both the impugned orders and dismissed the ejectment petition filed by the respondents, leaving the parties to bear their own costs.

H.B.T./M‑418/L Appeal allowed.