P L D 1994 Quetta 38 (PLP)

(2) Whether the application is liable to be accepted? (3) Relief. Record reveals that respondent No.3 Ghulam Qadir gave statement for himself and attorney for others. He deposed that appellant was tenant in two shops for the last 6 to 7 years and has not paid rent after December, 1991. Thirty rent receipts ExhA-2 to ExhA-31 showing mode for payment of past rent were also produced. During cross-examination suggestion about demand for enhancement of rent was denied. But he did not dispute that rent used to be collected by their father or another brother. No other witness was examined by the respondents/landlords. Whereas appellant apart from himself adduced one witness Salahuddin. The witness deposed that respondents used to .collect rent from appellant on their own accord. However, Haji Naik Muhammad father of respondents. demanded increase of rent also threatened him to vacate the shops. In the cross-examination, he admitted that demand for enhancement was not made by Naik Muhammad within his presence. Appellant in his testimony explained that whenever respondents approached for collecting rent, same was immediately paid to them. He deposed that normally rent was collected on intervals of two or three months and on one occasion they approached after the lapse of one year (i.e. May, 1989 to May, 1990). It was asserted that rent for another three months was also paid to father of respondents but despite demands receipt was not issued. Nothing substantial was elicited during lengthy cross-examination. Photo copies of two challans dated 11-2-1992 showing deposit of Rs.3,500 and 2,000 totalling Rs.5,500 regarding rent up to January, 1992 were also placed on record. Learned Rent Controller on the appraisement of evidence vide judgment dated 29-8-1993 concluded that appellant had committed default in payment of rent with effect from 1-3-1991 till direction for deposit of rent within the purview of section 13(6) were made on 3-3-1992. Therefore, holding appellant liable for ejectment, application was allowed requiring him to hand over vacant possession of two shops to respondents. Aggrieved from said decision present appeal was filed on 11-10-1993. Mirza Hussain Khan, learned counsel for appellant mainly urged that appellant was throughout ready and prepared to make payment of rent but respondents had failed to collect the same in normal course. According to him mere non-payment does not straightaway entail consequent for ejectment. Learned counsel stressed hard that - Controller under clause 13(2)(i) of Ordinance VI of 1959 was vested with discretion to examine justification for allowing ejectment even when non-payment of rent has been established, but this aspect was completely ignored. It may be seen that respondents are primarily aggrieved from failure of appellant to pay rent from 1-3-1991 till October, 1991, when proceedings were filed. Landlord in the deposition has not expressed any protest about past conduct of appellant. Rent receipts ExhsA-2 to A-31, clearly indicate that rent was generally collected after certain intervals, even after one year. The documentary evidence got exhibited through attorney of respondents clearly supports the stand of appellant. The version of appellant about collection of rent by father or one of the respondents has not been controverted. There is unchallenged statement of appellant on oath expressing collection of three months' rent by respondent Haji Ghulam Haider for which receipt was not issued. On thorough reappraisal and scrutiny of evidence brought on record, mode concerning payment of past rent, and requirement of section 13(2)(i), Ordinance VI of 1959 shows that plausible cause for explaining the default existed. It was obligatory for the Rent Controller to independently apply mind and examine cumulative effect of given circumstances for determining justification about direction for ejectment of appellant. There is absolutely nothing to suggest that omission to tender rent, by appellant at any stage was contumacious or wilful. Accordingly in my opinion conclusions arrived at by the Controller without exercising discretion lawfully vested in said forum, is highly defective. In this view I am fortified by the observations of following reported judgments:-- (i) PLD 1964 (W.P.) Lahore 329 (Kh. Ghulam Qadir v. Tajammal Hussain), (ii) PLD 1964 (W.P.) Lahore 686 (Faqir Muhammad V. Dr. M.Yasin and 2 others), (iii) PLD 1965 (W.P.) Lahore 11 (S. Masood Hussain and others v. Muhammad Saeed Khan and others), (iv) PLD 1965 (W.P.) Lahore 23 (Muhammad Shafi v. Iqbal Ahmad and another), (v) PLD 1967 Lahore 966 (Major Feroze Din Khan and others v. Sh. Muhammad Amin), (vi) PLD 1972 Karachi 220 (Sajjad Ali Khan and 2 others v. Pir Bux G Mahar), (vii) 1980 CLC 848 (Muhammad Yamin v. Mashroofullah Khan), and (viii) PLD 1980 Karachi 92 (Saeeduddin v. Muhammad Saleem) Additionally Balochistan Urban Rent Restriction Ordinance VI of 1959 was amended by means of Balochistan Ordinance No.VIlI of 1985 dated 31-1-1985 (PLD 1985 Balochistan Statutes p. 72) whereby following proviso has been added: "Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose, and upon such deposit being made he shall make an order rejecting the application." In the instant case, before filing of written statement appellant had deposited arrears of rent on 11-2-1993. There is absolutely no allegation against appellant for committing previous default in payment of rent. Thus it was incumbent upon the Controller to examine desirability of drawing further proceedings when allegation merely related to non-payment of rent. Mr. Naeem Akhtar, learned counsel for respondents by referring to observation in case Hazrat Umar v. Zafar Majeed PLD 1991 SC 138, canvassed that appellant never showed his willingness to pay arrears therefore he was not entitled to protection contained in the amending provision. With great respect it is observed that principle of law enunciated in aforequoted judgment helps appellant rather than supporting respondents keeping in view peculiar circumstances of instant case. Factually appellant had deposited the arrears of rent on 11-2-1992 much before direction in that behalf were made by Controller on 3rd March, 1992. The trial Court had consciously considered copies of relevant challan at the time of scrutiny on 13-7-1992 before framing of issues, as reflected from the order sheet. Surprisingly while passing impugned judgment learned trial Court has observed ,that arrears of rent were not deposited till 3rd March, 1992, which is apparently incorrect and contradictory to the record. Evidently when appellant deposited arrears of rent: before directions were made, it becomes obligatory upon the Controller to exercise discretion whether circumstances justified condonation of default. In the present case there is absolutely no allegation about appellant being previous defaulter, therefore, in the peculiar circumstances on such satisfaction proceedings should have been terminated. Manifest failure to exercise jurisdiction on the basis discussed above is extremely unjustified. For the foregoing reasons, I am inclined to accept the appeal, set aside judgment dated 29-8-1993 passed by Senior Civil Judge and Rent 'Controller, Quetta. Consequently eviction application filed by respondents shall stand dismissed. Parties are left to bear their own costs. This appeal was decided by short order of even dated and here are reasons for the same. A.A./464/Q Appeal accepted