JAMIL HUSSAIN AND OTHERS vs AZIZULLAH KHAN AND 7 OTHERS
This matter arises from a petition for leave to appeal against the dismissal in limine of a second appeal by the High Court, which upheld the ejectment of the tenant-petitioners for default in payment of rent. The core legal question concerned whether the landlord's continuous acceptance of a lesser rent amount negated the default or excused the non-payment, and whether the benefit of the West Pakistan Urban Rent Restriction (North-West Frontier Province Amendment) Act of 1972 applied. The Supreme Court held that the landlord's acceptance of a lesser amount due to the adjustment of a previous advance did not constitute a waiver or contribute to a wilful default, and that the statutory benefit under the amendment could not be claimed as the tenants had failed to admit their liability and deposit the arrears on the first date of hearing. The Court established that a landlord's acceptance of reduced rent pursuant to a bona fide adjustment does not prejudice their right to seek ejectment for non-payment of the actual stipulated rent.
- Does a landlord's continuous acceptance of a lesser rent amount on account of an advance adjustment preclude a claim of default?
- Can a tenant claim the benefit of the second proviso to Section 13(2) of the West Pakistan Urban Rent Restriction Ordinance 1959 without admitting liability and depositing arrears on the first date of hearing?
- Section 13, West Pakistan Urban Rent Restriction Ordinance 1959
- West Pakistan Urban Rent Restriction (North-West Frontier Province Amendment) Act 1972
' MUHAMMAD AFZAL CHLEMA, J.-Muhammad Hussain, the predecessor. In-interest of the petitioners herein was admittedly a tenant of Saidullah Khan, the predecessor-in-interest of the respondents in respect of a business premise in Mardan. There was a dispute as egards the stipulated rent which according to Muhammad Hussain was Rs, 47.50 per mensem but double of this amount i,e, Rs, 90 per mensem according to Saidullah Khan. It is common ground; however, that Muhammad Hussain himself had been paying at the rate of Rs, 47.50 per mensem till his death in September, 1970 and thereafter his successors-in-interest, the present petitioners had also been paying at the same rate. The explanation of Saidullah Khan who died in January 1972, for the acceptance of the rent at half the stipulated rate was that Muhanmad Hussain had made certain advance payment and it was on account of its monthly adjustment that a shorter amount was accepted by him.
2. Saidullah Khan applied to the Rent Controller seeking ejectment of Muhammad Hussain on ground of non-payment of rent. These proceedings were continued by the legal representatives of the parties who were brought on the record after their death. It appears that the precise amount of the rent stipulated was not seriously challenged by the petitioners as no issue was framed in this regard. Even belore us, learned counsel for the petitioner had to concede that the rent was Rs, 95 p.m. The learned Rent Controller finding that the petitioners had defaulted in payment of rent and were not entitled to any improvements as claimed by them ordered their ejectment. Having failed before the lower appellate authority, they moved a second appeal before the High Court which was dismissed in limine, vide order, dated 19-64914, which is the subject-matter of the present petition for leave to appeal.
3. In support of the petition, learned counsel contended before us that the landlord having himself continually accepted a shorter amount contributed to the default which could not be characterised as wilful and further that the Courts below had ignored the amendment of Section 13 of the West Pakistan Ordinance VI of 1959 introduced by the West Pakistan Urban Rent Restriction (North-West Frontier Province Amendment) Act of 1972, whereby a second proviso was added to subsection (2) of section 13 making it incumbent on the Rent Controller to reject the application of the landlord in case the tenant admitted on the first date of hearing hid liability to pay the rent due from him being the first default on his part and deposited the arrears on the date fixed by the Rent Controller.
4. The contentions have no force. We have already referred to the landlord's explanation of the acceptance of Rs, 47.50 instead of Rs, 95 a.m. On ground of adjustment of a previous advance made to the tenant. The landland could not be allowed to suffer on account of an honest deal of adjustment. The second ground was not taken by the petitioners before the lower appellate authority for the obvious reason that they were not prepared to admit their liability or make payment of arrears. The con- tensions are, therefore, overruled. No justification is made out for the interference of this Court. The petition is accordingly dismissed.