P L D 1967 Lahore 966 (PLP)

This is a second appeal against order, dated 14th April 1962, passed by the District Judge, Rawalpindi, confirming the order of the learned Rent Controller, Rawalpindi, by which he dismissed the application of the appellant for the ejectment of the respon dent from the premises in question.

2. On the 29th of July 1960, the appellant filed the applica tion against the respondent before the Rent Controller, Rawalpindi, under section 13 (2) (i) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance) for the eviction of the respondent from Shop No. U/252 along with the flat above it. bearing No. U/251‑A situated in Cloth Market, New Katra,, Raja Bazar, Rawalpindi, on the ground that the respondent had failed to pay the rent due to the appellant for "the months of May and June 1960". The respondent contested the application for his ejectment. He admitted the tenancy and pleaded that the rent for the months of May‑June and June‑July 1960 was tendered to the appellant for payment in the first week of July 1960, then again towards the end of July 1960 and finally he remitted the rent to him by money order on the 8th of August 1960, which he refused to accept. In these circumstances, the respondent denied that he was liable for ejectment from the premises. The learned Rent Controller framed the following issues arising out of the pleading of the parties:‑ (1) Whether the respondent is liable to ejectment? (2) Relief.

3. Admittedly on the 11th of November 1957, Sheikh Muhammad Amin respondent executed the lease deed (Exh. P. 1) in favour of the appellant. Thereby he took the premises in question on lease from the appellant for a period of 10 years from 11th of November 1957 to 10th of November 1967 and agreed to pay the rent "month by month". He further agreed that in case of default in the payment of the rent for two consecutive months, the respondent shall be liable for his ejectment from the premises.

4. At the trial the appellant appeared as his own witness to prove his case. He denied that the rent due to him for the two months in question was tendered to him. In rebuttal the respondent produced two witnesses, Muhammad Afzal (R. W. 1) and Muhammad Bakhsh (R. W. 2) to prove that he bad tendered the rent to the landlord, at first in the beginning and then towards the close of July 1960. The respondent also appeared as his own witnesses to support his contention. According to Exh. D. 1, on 8th August 1960, the tenant remitted the arrears of rent for the three months by money order but the appellant refused to accept it. The learned Rent Controller believed this evidence led by the respondent to establish that he had tendered the rent due for the months of May and June in the first week of July 1960 but the appellant was not available and he again tendered the rent to him by the end of July 1960 which he refused to accept. There was no reason to disbelieve the money order receipt Exh. D. 1 by which the three months' rent was at last remitted to the landlord on the 8th of August 1960. In these circumstances the learned Rent Controller found that the appellant had failed to establish that the respondent had committed the default in the payment of the rent for the two months in question. He further observed that the respondent was not a habitual defaulter in the payment of rent and the appellant did not even alleged this. In these circumstances the learned Rent Controller rejected the application of the landlord on the 28th of July 1961. On appeal, in the opinion of the learned District Judge it was not safe to accept the oral evidence led by the respondent to prove that he had tendered the rent due to the landlord, at first in the beginning and then towards the close of July 1960, as alleged by him. The lower appellate Court found that even allowing for the period of grace of .15 days on each occasion as contemplated by section 13 (2) (i) of the Ordinance, the rent for May‑June should have been paid within 15 days of 11th of June 1960 and that for June‑July within 15 days of 11th of July 1960; but that the first satisfactory tender of the rent for the two months was made on the 8th of August 1960 by Money Order. By that time the double default had already occurred. The learned District Judge therefore, reversed his finding of the Rent Controller in this behalf. However, at the same time he agreed with the learned Rent Controller in holding that the respondent was not a habitual defaulter in the payment of rent and in these circumstances he refused to exercise the discretion in favour of the appellant and declined to order the ejectment of the tenant. He, therefore, dismissed the appeal before him on 14th of April 1962.

5. The appellant has died during the course of the appeal in this Court and his legal representatives were brought on the record. I have heard the parties and find no force in this second appeal. It is concluded by the findings of fact and the decision is not vitiated by any error of law or procedure to warrant any interference in second appeal. The learned District Judge has exercised the discretion lawfully vested in him under section 13 of the Ordinance in refusing to order the ejectment of the respondent under the circumstances of the case. He has exercised his discretion in a judicial manner and on no abitrary, perverse, and unsound con siderations.

6. The learned counsel for the appellant has, however, argued that after the learned District Judge was fully satisfied that the tenant had committed the double default in the tender or payment of rent due from him for the months of May‑June and June‑July 1960 he was bound under the law to order the ejectment of the respondent on this findings. In the opinion of the learned counsel the words "may" used in section 13 (2) (i) of the Ordinance enabling the Rent Controller to order the ejectment, is mandatory in nature. It leaves no option in the authority. He is under a duty to direct the eviction of the tenant once the "requirements of the subsection are fulfilled. On the other hand, for the respondent, it was emphasized before me that the lease in question was for a period of 10 years commencing from 11th of November 1957 to the 10th of November 1967 and although under the agreement the tenancy was liable to be forfeited in case of the default in the payment for the rent for the two consecutive months, yet on the principles contained in section 114 of the Transfer of Property Act, the tenant is entitled to the relief against the forfeiture of the tenancy on the payment of the rent due from him. To meet this last argument I can do no better than to reproduce the obser vations by Kayani, J. (as he then was in Muhammad Nawaz v. Muhammad Azim (P L D 1961 Lab. 788): "Learned counsel for the legal representatives argued that the present position is comparable to that under section 114, Transfer of Property Act, under that section, where a lease of immovable property has determined by forfeiture for non‑payment of rent and, the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays the rent in arrear, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture. In similar circumstances, a tenant governed by the present Ordinance could also be relieved against foreiture if he paid up the rent, as the children had paid or were prepared to do. This argument, however, loses sight of two factors. The first is that, except for section 114, Transfer of Property Act, it would not have been possible to relieve the lessee against a forfeiture clause in the agreement of tenancy. The second is that section 114 deals with private agreements, while section 13 of the Ordinance provides for a statutory forfeiture." Therefore, this case must be decided on the basis of the provisions of section 13 (2) (i) of the Ordinance and the respondent cannot rely on the provisions of section 114 of the Transfer, of Property Act.

7. No reverting to the contention raised by the learned counsel for the appellant the old section 13(2)(i) of the Ordinance, prior to its amendment as in force at the relevant time, stood as under:‑ "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied‑ (i) that the tenant has not paid or tendered rent due by him in respect of the building or rented land, within 15 days after the expiry of the time fixed in the agreement of the tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land if the Controller is not so satisfied he shall make an order rejecting the application." Even if all the conditions laid down in this subsection are fulfilled, it is in no way obligatory for the Controller to make an order directing the tenant to put the landlord in possession of the premises. The order of ejectment cannot be passed as a matter of course only. In case the Controller is satisfied that the tenant has not paid or tendered the rent due from him within the period of grace allowed by law, he "may" make an order directing the tenant to put the landlord in possession of the building or rented land. In case, however, he is not so satisfied, he "shall" make an order rejecting the application. It is obvious that in this subsection the word "may" is used with a purpose to confer powers on the Controller to order the ejectment of the tenant in a fit case. It does not have the force of the words "shall" or "must" as suggested by the counsel for the appellant. In this connection it is helpful to reproduce here the observations by Cotton, L. J., In re: Baker Nichols v. Baker (44 Ch. D 262) quoted with approval in Haji Ghulam Hussain and another v. Muhammad Rafique and others (P L D 1965 Kar. 468): " `may' never can mean `must' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word `may', it becomes his duty to exercise that power." In this connection a learned single Judge of this Court in Kh. Ghulam Qadir v. Tajummal Hussain (P L D 1964 Lah. 329) in dealing with this very provision of law held as under:‑ "The word "may" in the context in which it has been used and the scheme of the statute and other relevant consider ation, may be interpreted as meaning "must" or "shall" but this need not necessarily be so in each and every case. The word "may" in the context of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 cannot be said to have been used in the sense of "shall", or "must". The word "may" in subsection (2) of section 13 of the Ordinance has been used deliberately, leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the case falls under clause (i) of subsection (2) of section 13 of the Ordinance, or if circumstances of the case are such that it is necessary to the interest of Justice not to order so. Normally in case of default an order of ejectment is to follow, and the exercise of discretion must be based on good grounds on careful consideration of all the relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be judicial. As a discretion vests in the Controller, it can also be exercised by the Appellate Authority." I fully share the view .taken by the learned Single Judge that the word 'may' in this context has been deliberately used to invest a discretion in the Controller to direct or not to direct the ejectment of the tenant after he was found to have committed the default in the payment of the rent. But with profound respect I am unable to hold that "normally" in case of default an order of ejectment is to follow. In my opinion this would be placing as unwarranted fetter on the discretion vested in the Controller. After the Controller is satisfied that the conditions laid down) in the subsection are fulfilled and the tenant has failed to pa) or tender the rent within the period of grace allowed by the law, he is then called upon to exercise his discretion to order or not to order the ejectment of the tenant in the particular circumstances of the case before him. Under the law, from the very start, the onus all along rests on the landlord to prove; firstly that the tenant has committed the default and failed to pay or tender the rent due from him within the period allowed by the law and secondly that under the circumstances it is a fit case to order his ejectment and to obtain the relief for which he has sued. One of the aims and objects for which this Ordinance was promulgated is "to restrict . . . . . the eviction of tenants" from the premises situated within the limits of urban areas in the Province of West Pakistan. The Controller in exercising the discretion, must approach the question in a judicial manner with an open mind without any predilection or leaning towards one side or the other. In exercising the discretion the Controller must not act arbitrarily, on humour or caprice, personal likes and dislikes or irrelevant and extraneous considerations. He is bound to act fairly in accordance with common‑sense, justice and equity. In this respect in Haji Ghulam Hussain and another v. Muhammad Rafiq and others, it was observed that the use of word "may" occurring at the concluding part of section 13 (2) (vi) of the West Pakistan Rent Restriction Ordinance, 1959 does not confer a naked, uncontrolled and unguided discretionary power on the Rent Controller. Craies on Statute Law, 6th Edn. on pages 272‑273, says:‑ "that discretion" (Robin's Justice and Administrative Law, 3rd Edn. p. 400 et seq), said Bowan, L. J. in Gardner v. Jay ((1885) 29 Ch. D 50, 58), "like other judicial discretions, must be exercised according to common‑sense and according to justice, and if there is no indication in the Act of the ground upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run Nema Silver Mining Co. v. Grant (1879) 11 Ch. D 918, 926, Jessel M. R. and Ex. P. Merchant Banking Co. (1881) 16 Ch. D 623, I. R. C. v. Rose and Coulter (1948) S C (H.L.) 1, 16; (1948) 1 All. E R 616, 629, per Lord Thankerton)." But, as Lord Blackburn said as to the exercise of discretionary power by a Court of equity, "the discretion is not to be exercised according to the fancy of whoever is to exercise the jurisdiction of equity, but is a discretion to be exercised according to the rules which have been established by a long series of decision Doherty v. Allman (1878) 3 App. Cas. 709, 728." Therefore, as Willes, J. said in Lee v. Bude, etc., Ry., (1871) L R 6 C P 576, 580 if it is intended by the Legislature that a discretion should be exercised, what is meant is "a judicial discretion regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is entrusted on the assumption that he is discreet Holland v. Worley ((1884) 26 Ch. D 578, 584)." "Discretion", said Lord Mansfield in R. v. Wilkes 1770‑4 Burr. 2527, 2539, "when applied to a Court of justice, means sound discretion guided by law. It must be governed by rules, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular"."

8. Indeed Lord Penzance observed in Morgan v. Morgan ((1869) L R 1 P & D 644, 647): "A loose and unfettered discretion is a dangerous weapon to entrust to any Court, still more so to a single Judge," and if I may add, much less to an authority like the Rent Controller. But on the facts of the present case, I am not satisfied that the learned District Judge, has exercised the power vested in him under the law in a capricious or wanton manner on mere whims and prejudices. Indeed his order is not based on any irrelevant or on extraneous considerations. The learned Rent Controller as well the District Judge have both concurred in holding that the respondent was by no means a habitual defaulter to be visited with the extreme penalty of his ejectment from the premises. According to the Appellate Authority the tenant was technically at fault in his failure to tender the rent in time for the two consecutive months. But he soon made his amends by remitting the arrears by money order. The lease was for a fixed term and in these circumstances, the learned District Judge exercised the to discretion in favour of the tenant. There is, therefore, no room for interference by me in this second appeal.

9. The learned counsel for the petitioner has raised a further plea before me. On 7th April 1961, the Controller had passed the order under subsection (6) of section 13 of the Ordinance directing the tenant to deposit arrears of rent and the future monthly rent at the rate of Rs. 150 before the 5th of each succeeding month. The appellant has got no complaint about it against the tenant for the time his petition was pending with the Rent Controller. However, during the course of his first appeal before the District Judge, on 31st October 1961, he filed an application under section 13 (6) of the Ordinance praying that the defence of the respondent be ordered to be struck off for his alleged failure to deposit the rent due in respect of the months of August, September and October 1961. This application does not appear to have been pressed before the learned District Judge who did not pass any final order on it. However, in this Court, the appellant has raised an additional ground to the effect that at any rate the defence of the tenant was liable to be struck off for his failure to deposit the future rent in compliance with the order of the Rent Controller passed under subsection (6) of section 13 of the Ordinance. But the respondent has denied that he has committed any default in the matter of the payment of the future rent due from him. His learned counsel produced some of the receipts for the rent deposited by him. In this second appeal I find that it is, not necessary for me to go into this fresh controversy raised before me. Admittedly the tenant did not commit any breach of the order of the Rent Controller dated 7th April 1961, in the deposit of the future rent so long as the petition remained pending before him. The ejectment petition was finally dismissed by the learned Rent Controller on the merits on 28th July 1961. In my opinion; this power under subsection (6) of section 13 of the Ordinance to strike off the defence of the tenant could not be invoked at any time after the final decision of the main petition on the merits. Subsection (6) is reproduced below:‑‑ "In proceedings under this section on the first date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till final decision of the case, before the 5th day of each month, the monthly rent due from him . . . . . If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put in possession of the property without taking any further proceedings in the case." In these circumstances on his failure to deposit the rent in accordance with this interim order, the Controller is authorised to strike off the defence of the tenant without taking any further proceedings in the case. On the face of this provision, the question to strike off the defence of the tenant is relevant only before the decision of the case on the merits and not there after. Once that stage is passed and over, the question no longer arises. In a case like the present, it is illogical to speak about striking off the defence of the tenant even after his defence has been fully vindicated and the petition for his ejectment dismissed on the merits by the Rent Controller. Indeed this would be a contradiction in terms.

10. Nevertheless, the learned counsel for the appellant has relied on Qazi Qahir Khan v. Abdullah Jan (P L D 1963 Quetta 21) and Muhammad Hussain and another v. Mehraj Din and another (P L D 1965 Lah. 179), to con tend that an order under section 13 (6) could be passed in all circumstances and at any and every stage. But in my opinion these cases cited by the learned counsel are distinguishable. In Muhammad Hussain and another v. Mehraj Din and another. this Court has held that under subsection (6) of section 13 of the Ordinance not only the Rent Controller, but the Appellate Authority as well is competent to strike off the defence of the tenant. The Court observed: "in case of default in obeying the direction to deposit the rent by the specified date the Rent Controller has no option but to order the striking off the defence, it would seem that if the Rent Controller failed to order striking off the defence in case of such a default, he would do something unwarranted in law, and since the order would be under section 13 (6) of the Ordinance, it would be open to appeal and the Appellate Authority could pass the correct order, namely, that of striking off the defence." In that case relying on the analogy of section 107 (2) of the C. P. C., the Court further observed that "the appellate Court has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein, and if an order striking off defence is open to appeal a fortiori the appellate authority is competent to pass a correct order in the cases." Therefore this case, if pressed to its logical conclusion, goes against the appellant, in case the Rent Controller was not competent to strike off the defence of the tenant after the disposal of the ejectment petition on the merits when he was no longer seized of it; on the same reasoning the appellate authority would be equally powerless to do so after that stage was over. As regards the other case of Qazi Qahir Khan v. Abdullah Jan, the learned counsel for the appellant has strongly relied on the following observations in it:‑ "The language of subsection (6) of section 13 makes it clear that the order of the Rent Controller for the deposit of the monthly rents is to last till the final decision of the case takes place. The final decision of the case does not take place till the remedies of appeal to the appellate Tribunals have been exhausted. It would be the decision of the final Appellate Authority which would constitute the final decision of the case. Subsection (6) does not say that the order of the Rent Controller regarding the payment of the monthly rents is to be effective till the decision of the application by him. The words used or "till the final decision of the case" underline the fact that the order of the deposit of monthly rents made by the Rent Controller has to be operative till the proceedings initiated by the application under section 13 are finally determined." To supplement the argument advanced in this respect, the learned counsel was at pains to explain that in fact the appeal in this Court is a continuation of the original proceedings before the Controller and my powers in appeal are co‑extensive, if not wider. The learned counsel has based his argument on the following observations by B. Z. Kaikaus, J. in F. A. Khan v. The Government of Pakistan (P L D 1964 S C 520): "In respect of the nature of an appeal the following proposi tions may be regarded as established: (i) When an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not act merely as a Court of error; (ii) after there has been an appeal even through an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (iii) the original and appellate proceedings or steps in one proceedings. But as already mentioned the Quetta case is distinguishable on facts. The matter in dispute had gone back in remand on the original side before the Controller and the proceedings for the ejectment of the tenant were still pending before him, when be was called upon to exercise the powers to strike off the defence of the tenant without going any further into the merits of the case. There can be no dispute that the appeal is heard in continuation of the original proceedings and the appellate authority is, empowered to make all those orders which the Rent Controller could under the circumstances. But it would be pressing this argument to an illogical conclusion to contend that the appellate authority can ignore the final order passed by the Controller on the merits of the case and proceed to strike of the defence of the tenant even after that stage in the case was crossed.

11. For the reasons discussed above, I see no force in this appeal, which is dismissed with costs. K. B. A. Appeal dismissed.