1986 PLP 702 (CLC)

Application for ejectment was filed on 25‑5‑1977 on the ground that four months rent from January, 1977 to April 1977 at the rate of fts. 75 per month had not been paid by the respondent. The respondent resisted the application and stated in his written statement that in January, 1977 the appellant had given him a burnt electric motor for repairs and he winded the motor and changed its capacitor and the bill for the same amounted to Rs. 300 and as against that bill the appellant had allowed the respondent to adjust the same in the monthly rent of Rs. 75 and that in fact the respondent had paid the rent of four months in advance in January, 1977.

2. The issue of default was framed. The appellant did not examine himself but his Rent Collector namely, Akhtar Hussain, deposed on his behalf. In his affidavit he stated that the respondent was a regular defaulter in the payment of rent and that he had neglected to pay the four months rent from January, 1977 to April, 1977. He further stated that the appellant had not asked the opponent to repair the water pumping machine and never allowed the adjustment of Rs. 300 from the monthly rent. In cross‑examination he denied that he had given a pumpint motor to the respondent to repair and that adjustment of four months rent was to be allowed against the bill of the said repairs.

3. The respondent filed his personal affidavit in support of his defence and stated that he never made any default in payment of rent and that the appellant had given him burnt electric motor for repairs and that he did repairs and gave bill of Rs. 300 to the respondent for payment who told him to adjust the same out of the rent and, therefore, he adjusted the amounts in the months of January, February, March and April, 1977. In cross‑examination he admitted that he had not paid the rent for the relevant period because he had carried out the repairs upon motor with the consent of the applicant. He denied that the motor had not become defective. The respondent had also produced copy of the bill of Rs. 300 dated 9‑1‑1977. He was asked a question that the bill does not bear the receipt of the appellant and he admitted that it was so.

4. One Abdul Hafiz filed his affidavit in support of respondent where it was stated that Muhammad Yousuf had given bill of Rs.300 for repair to the landlord of Shakil Mansion and this amount was to be adjusted in the rent. In cross‑examination he stated that applicant was known to him since long and that the bill was given to the son of the applicant but he did not remember his name. He admitted that he did not know for what purpose that bill was and that no conversation regarding the adjustment of the rent was made in his presence.

5. The Rent Controller believed the statement of the appellant and his witness, Abdul Hafiz, in respect of the giving of the bill of Rs. 300 on account of rewinding of the water motor. He came to the conclusion that the appellant had not been able to give a single instance where the respondent had committed any default in payment of rent nor he had produced any witness in support of that statement. He was further of the view that there was actually default of only one month's rent of January, 1977 after taking into consideration the grace period of 60 days. Eventually he was of the view that there was no default and, therefore, he rejected the application.

6. Mr. Shafaat Hussain argued that the respondent had not been able to prove that he had repaired the motor winding machine. However, there is statement of the respondent to that effect supported by the statement of Abdul Hafiz, it is correct that Abdul Hafiz has admitted that he did not hear the conversation but in respect of the handing over of the bill Abdul Hafiz was certain that the respondent had handed over the bill to the son of the appellant. In any case, the statement of respondent alone could have been believed by the Rent Controller particularly in view of the fact that the appellant himself had not chosen to come in the witness‑box. The respondent had alleged that it was the appellant who had given the motor for repairs and the respondent had supported the same by his personal statement in Court on oath and, therefore, if the appellant wanted to deny the same then he had to take the risk of going into the Court and denying that position, but he did not choose to do so and, therefore, in these circumstances the statement of the respondent alone could have been believed by the Rent Controller.

7. The above position I have considered only for the purposes of considering whether the discretion in respect of allowing ejectment or not can be exercised by the Rent Controller. The non‑payment of rent of the relevant period was admitted by the respondent but he had a reason for that non‑payment and, therefore, although in law the respondent was not justified to claim that he had made the payment towards the adjustment of the bill of repairs still the same could have been considered for the purpose of considering the question whether in the circumstances of the case an ejectment under section 13(2) of West Pakistan Urban Rent Restriction Ordinance, 1959, should be allowed or not and, therefore, the Rent Controller had come to the conclusion that there was no wilful default in the factum of non‑payment of rent of the relevant period within time.

8. The case was covered by the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, as it has been filed in 1977. Since the Rent Controller has a discretion under section 13(2) of the said Ordinance to order ejectment or not to order ejectment in spite of non‑payment of rent because the word used is "may", therefore, in spite of the fact that non‑payment of rent for period of January to April, 1977 having been admitted by the respondent the Rent Controller was justified in treating the explanation of the respondent as sufficient reason not to direct the ejectment of the respondent. I am in agreement with that decision and I am of the view that the discretion exercised by the Rent Controller in the circumstances of the case was not in any way an abuse of the discretion or that it was not a judicial discretion.

9. Appellant's counsel submitted that two months' rent at least was in default on 25‑5‑1977. Application was filed. This submission is justified because rent of January, 1977 was due on 2nd April, 1977 i.e. 60 days after it had become due on first February 1977, and similarly rent of February being due on first March, 1977 should have been paid by 29th April, 1977 and, therefore, when the application was filed on 25‑5‑1977 two months' rent was due. But the appellant had claimed four months' rent having become in default which was certainly an incorrect position because the rent of March could have been paid by 30th May, 1977 and, therefore, rent of March and April had not become in default and to that extent the application was premature. Therefore, it was only two months rent which had not been paid by the respondent by 25‑5‑1977 and since he had given reasonable explanation for its non‑payment, therefore, the ejectment was refused. Consequently, I had dismissed this appeal by a short order on 7‑10‑1985 after hearing the learned counsel for the parties. These are the reasons of the same. H . B . T Appeal dismissed