1991 PLP 2711 (MLD)

Muhammad Saleem for Appellant. Mirza Anwar Baig for Respondent. Date of hearing: 16th June, 1991. This appeal under section 24 of the Cantonments Rent Restriction Act, 1963, is directed against the order dated 22nd of June, 1988, passed by the Rent Controller, Rawalpindi Cantt., whereby he directed the eviction of the petitioner from the shop in dispute on the ground that he had failed to pay or deposit the rent with effect from April, 1986 to 15th of July, 1986.

2. The necessary facts are that on 1st of July, 1986, the respondent had filed an application under section 17 of the Cantonments Rent Restriction Act, 1963, seeking eviction of the appellant, who was his tenant in the shop in question on the ground that he had failed to pay or deposit the rent with effect from April, 1986 onwards. The rate of rent was alleged to be Rs.300 per month.

3. In the reply filed by the respondent, it was stated that the rent upto the month of April, 1986, had been paid to the landlord, though he did not issue the receipts and, therefore, on his refusal to receive the rent, it was remitted through money orders.

4. The Rent Controller by means of the impugned order dated 22nd of June, 1988, held that the rent from April, 1986 onwards was not paid by the appellant. He in this behalf relied upon an admission made by the appellant in his cross-examination. The Rent Controller was also of the view that the rent was payable in advance on 5th day of each month. This conclusion again was based upon the admission of the appellant that he used to pay the rent in the beginning of every month. On these premises, the appellant was held to be a defaulter from April, 1986 to 15th of July, 1986 when the rent was tendered through money order.

5. The finding of the Rent Controller that the rent for the period mentioned above had not paid appears to be in accord with the evidence on the record. It is, however, to be noticed that under section 17 of the Cantonments Rent Restriction Act, 1963, in the absence of a specific date fixed in the agreement of tenancy, a tenant can pay rent within sixty days from the date when the rent becomes due. Consequently, the rent for the month of April, 1986, which fell due on 13th of April, 1986, could be paid upto 30th of June, 1986. The ejectment petition was filed on the very, next day, i.e. 1st of July, 1986. The rent for the month of May, 1986 could be paid till 30th of July, 1986, though it was tendered through money order on 15th of July, 1986. Thus, at the time when the ejectment petition was fled, the only default of the petitioner was for a period of one day in payment of rent for the month of April, 1986. The finding of the (tent Controller that the rent for the month of April, 1986 should have been paid on or before he 5th of April, 1986 is based upon some strange logic, which cannot be accepted. The mere fact that the appellant had admitted that he used to pay the rent in the beginning of every month, cannot lead to the conclusion that the rent was payable in advance on the 5th day of every month. As already noted, according to section 17 of the Cantonments Rent Restriction Act, 1963, if there is no date fixed in the agreement of tenancy, the rent can be paid within sixty days following the period for which the same was due.

6. As at the time when the ejectment petition was filed the only default with regard to non-payment of rent for the month of April, 1986 was of one day. The question which next arises is as to whether the discretion vesting in the Rent Controller under section 17 of the Act should have been exercised in favour of the landlord or the tenant. It appears that the Rent Controller was not even aware of this aspect of this case but proceeded mechanically to evict the appellant by holding him to be a defaulter. Even otherwise, the premises on which the Rent Controller proceeded, namely, that the appellant had failed to pay the rent for the month of April, 1986 to 15th of July, 1986 have been found to be erroneous.

7. After hearing the learned counsel for the parties, I am of the view that even if the appellant was technically a defaulter in the payment of rent for the month of April 1986. and the discretion should have been exercised in favour of the appellant/tenant. I am guided in this respect by the authorities of the Supreme Court in Chaudhry Muhammad Ali v. Mian Abdul Rahman (P L D 1989 SC 123), Muhammad Hussain v. Muhammad Siddique and 2 others (P L D 1988 SC 731) and Muhammad Yousaf v. Abdullah (P L D 1980 SC 298).

8. Mirza Anwar Baig, learned counsel for the respondent, has, however, submitted that as the rent for the month of April, 1986 has not been paid by tenant even upto, the discretion should not be exercised in his favour. This contention of the learned counsel has no substance. In pursuance to the order of the Rent Controller. The rent was deposited by the tenant as is evident from the receipt produced by the learned counsel for the appellant before this Court. As a result of what has been stated above, this appeal is allowed and the order of the Rent Controller dated 22nd of June, 1988, is set aside, with the result that the ejectment petition filed by the respondent stands dismissed, leaving the parties to bear their own costs. M.BA./K-353,/L Appeal allowed.