1985 PLP 1433 (CLC)

This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the appellant landlord against the order of first appellate authority dated 21-10-1981 confirming the order of Rent Controller dated 13-2-1971 passed in Rent Case No. 1861/73 dismissing the application on the ground of default filed by the appellant against the respondent.

2. The apellant filed ejectment case against the respondent for his eviction from Shop No.S.B.4/55, Blankin Street, off Somerset Street, Saddar, Karachi, on the ground of default in payment of rent from May, 1973 onwards. The rent case was filed on 9th August, 1973. The respondent in his written statement denied that he has committed any default in payment of rent and contended that for the two years the appellant used to recover the rent from the respondent after every two months. It was also contended that according to the practice appellant No.1 used to come himself to collect the rent from the appellant and therefore, he should have come to collect the rent on 31st July, 1973. However, as the appellant No.1 did not come to collect the rent the opponent sent his son Farid Ahmed to appellant No.1 with the rent for two months which the appellant No.1 did not accept on the excuse that he has no receipt book at that time and that be will himself come to the respondent's shop for collecting the rent as soon as the rent book is available. It is further alleged that after waiting for 2/3 days the Respondent's son again approached the appellant and offered him rent but he declined to accept it on the same excuse. Therefore the respondent sent the rent by money order on 9th August, 1973 but it was refused by the appellant. Again on 23rd August, 1973 rent for 3 months was sent but it was also refused. The respondent thereafter started depositing rent in Court from 2-9-1973. The Rent Controller after hearing the parties came to the conclusion that the default alleged against the respondent was not wilful and deliberate and that the respondent being a tenant for the last 30 years in the premises and the rent having been recovered on several occasions in lump sum it was possible that the respondent was misled by the past practice. The following reasonings were given by the Rent Controller while exercising discretion in favour of the respondent: "It is a matter of record that opponent sent the rent through money order (Exh.0-15) on 9th August, 73 that means only after 10 days from the period provided under Law. Since opponent is tenant of the applicants from last 30 years and had been paying rent in lump sum and it has been stated by the opponent that applicant's younger brother used to come to collect the rent and this appears me to be correct therefore, in my opinion the opponent might have remaind waiting for the brother of P.W. Ashraf to come to collect the rent. The sending of money order leads me to presume that the deceased opponent Mohammad Ahmed had sent his son to pay the rent and on refusal by the applicants he had sent this money order otherwise it does not appear proper to sent rent by money order just after a day of filing of this case. The amount of rent is so paltry i.e. Rs. 35, that it is difficult for me to believe that the opponent would had refused to pay the rent. In view of the above discussion and keeping in view the fact that in past rent of several months had been paid in lump sum and together and it has not been stated by the applicants that in past applicants also filed any ejectment case against the opponent in the ground of default I am of the considered opinion that it will be against the spirit of law and justice to hold the opponent as a wilful defaulter because there is only a delay of 10 days in payment of rent for the May of 1973 and there is no delay for the payment or tendering the rent of the subsequent months i.e. June 73 and others and in view of the above discussion I am of the considered opinion that it is a fit case where the Rent Controller must and should exercise his discretion judicially in favour of tenant findings on this issue accordingly." On appeal the first appellate authority agreed with the Rent Controller that the default alleged against the respondent was not wilful and refused to interfere with the discretion exercised by the Rent Controller in favour of respondent. The following reasons were advanced by the first appellate authority while refusing to interfere with the discretion exercised by the Rent Controller in the case in favour of the respondent: "The tenancy between the parties exists since last 30 years. The default if any is for only 10 days. The respondent has been paying the rent regularly in accordance with wishes of the appellants. The appellants have not complainted that the respondent is habitual defaulter. Not a single instance was quoted by the appellants showing that at any time the respondent had committed default in payment of rent prior to this one. In such situation the default does not appear to be wilful. In these circumstances respondent can be under a genuine impression that since the payment of rent is periodically and is collected by the appellants, a few days delay in payment of rent would not be considered default. Since the Rent Controller did not find the default to be wilful hence he refused to pass order of ejectment. In the given circumstances of the case I am of the opinion that the learned Rent Controller has rightly exercised the discretion judically. There is no justification for me to interfere with exercise of discretion by me." The learned counsel for the appellants contends that the default for the month of May, 1973 was established beyond doubt and the plea of the respondent that the rent was being collected for two months at a time should not have been accepted by the Courts below in view of the decisions in the cases of Mrs. Alim Ahmed v. Amir Ali P L D 1984 S C 32 and Syed Waris Ali Tirmizi v. Liaquat All 1980 S C M R

601. In evidence before the Rent Controller the respondent produced several rent receipts issued by the appellant which are Exhibited as 0/4 to 0/13. These receipts do show that the rent of the premises was being collected by the appellant from 1971 to 1973 for two months each time. The details of these rent receipts are as follows:- S.No. Date of receipt Month for which rent collected Amount 1. 14-10-71 Sept. and Oct.,71 Rs.68 2. 8-11-71 Nov. and Dec.,71 3. 13-1-72 Jan. and Feb.,72 4. 6-3-72 March and Apri1,72 5. 17-5-72 May and June,72 6. 18-7-72 July and August,72 7. 4-11-72 Sept. and Oct.,72 8. 15-1-73 Nov. and Dec.,72 9. 15-3-73 Jan. and Feb.,73 10. 31-5-73 March and Apri1,73 A perusal above receipts will show that the rent from 1971 till immediately before filing of the ejectment application was paid by the respondent for two months each time but all these payments were either within time or were made in advance. Therefore the plea of respondent that the appellant used to receive two months rent after 'expiry of two months does not find support from the evidence on record. However the discretion in favour of the respondent was exercised by the two Courts below not only on the ground that there was practice of receiving rent in lump sum after 2 months by the appellant but it is also basad on the consideration that there was no allegation of default against the respondent who is tenant of the premises for the last over 30 years, prior to the filing of ejectment application and the default alleged against the respondent was only in respect of one month and the delay in sending the rent for that month was for ten days only which was tendered by the respondent through money order immediately after he realised that the default has occurred. The Rent Controller in this regard also held that according to respondent the appellant No.1's younger brother used to come to collect the rent and therefore, it was possible that the respondent might have remained waiting for the brother of appellant No.1 to come and collect the rent which resulted in 10 days default in sending rent through money order by the respondent. The question, therefore which arises for consideration in the appeal is whether the exercise of discretion by the two Courts below in the above circumstances in favour of the respondent was proper or not and whether it called for interference by this Court in second appeal. It cannot be disputed that under section 13(2)(i) of the Ordinance of 1959 the Rent Controller is not bound to pass an order for ejectment of tenant in all cases where default in payment of rent is proved. The Rent Controller in such cases certainly has a discretion which he has to exercise judiciously and in appropriate cases he may refuse to make an order of ejectment against the tenant if the default alleged against the tenant is found to be neither wilful nor deliberate. The second appellate authority will therefore not normally interfer with such exercise of discretion by the Rent Controller or the first appellate authority unless, it finds the exercise of discretion perverse, arbitrary or capricious. In the case before me it is clearly established that although the rent was being paid every time for two months by the respondent but he never defaulted in payment of rent and promptly paid either in time or in advance. The question whether the respondent bona fidely waited in view of the past practice between the parties that the appellant No.1's son would come and collect the rent which resulted in delay of ten days in payment of rent for one month is purely a question of fact which has been resolved in favour of the tenant by the two Courts below and there appears to be neither any perversity in the appreciation of evidence nor any misreading of evidence by the two Courts below in arriving at this conclusion. In these circumstances it cannot be said that the discretion exercised in favour of tenant/respondents by the two Courts is either arbitrary or perverse so as to call for interference by this Court in a second appeal. The learned counsel for the appellants relied on the case of Muhammad Alimullah v. Ziaul Hassan P L D 1973 Kar. 56 to contend that the discretion could be exercised in favour of a tenant by a Rent Controller only if it is found that the default committed by the tenant was for reasons which were beyond his control. The following passage from the above case is relied by the learned counsel in support of his contention:- "I have quoted the amendment, and its terms manifest the importance attached by the Legislature to the tenant's obligation to pay rent if it accrus, therefore in my humble opinion, the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent. The discharge of this statutory obligation by the tenant is a condition protection and, in my humble .opinion, he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13 if he was not able to trace his landlord's wareabouts despite reasonable efforts or if there was genuine dispute about the landlord's title. Again, if he has been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadvertence overlook his obligations. Similarly, the case of a tenant who can prove an estoppel of an agreement to pay rent at long intervals is much stronger. However, merely becuse a tenant has on a few occasions been allowed to pay rent "at intervals of time", this cannot possibly entitile him to invoke discretion under section

13. After all, if he is allowed to fall into arrears this is an indulgence on the landlord's part, and the recipient of an indulgence cannot claim any right or equity to its continuance. Similarly as the said Ordinance imposes an obligation on the tenant to pay rent as it falls due, he cannot be allowed to escape this obligation by invoking discretion." A close reading of the above passage will however, show that there could be cases where a tenant has been regular in payment of rent for a long period but through inadvertence fell into arrears of rent for 2 or 3 months at one time and in such cases the Rent Controller could validly exercise discretion in favour of tenant. In the present case the rent for the months of , May, June and July, 1973 was remitted on 9th August, 1973. The remittance of rent on 9th August, 1973 was within time in so far the rent for June and July was concerned. However, the default if any, was only in respect of the month of May, 1973 and that too was only for ten days. The two Courts below took into consideration this delay and looking to the circumstances of the case that the respondent was a tenant for over 30 years in the premises and has been regularly paying rent to the appellants, they reached the conclusion that the default was not wilful. The Courts below also held that the respondent waited bona fidely in view of the past practice for the appellant to come and collect the rent. The exercise of discretion on these considerations by the Courts below in favour of respondent could not be described as perverse, arbitrary or based on irrelevant considerations. In view of the above discussion I am of the view that no case for interference is made out in second appeal with the discretion exercised D by the two Courts below in favour of respondent and accordingly dismiss the appeal but leave the parties to bear their respective costs. M.Y.H. Appeal dismissed.