P L D 1965 (W (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)‑Tenant not complying with order under S. 13(6)‑Defence can be struck of even when case ripe for arguments‑Controller, in such case, however, to pass order both on merits as well as under S. 13(6)‑Civil Procedure Code (V of 1908), O. XX, r. S. Malik Taj‑ud‑Din Ahmad v. Dr. Muhammad Abdul Shakoor P L D 1962 Lah. 175 distinguished. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 (6)‑Tenant directed, during pendency of proceeding, to deposit future rent before 5th of each month‑4th of month happening to be Sunday‑Rent can validly be deposited on‑5th‑General Clauses Act (X of 1897), S.

10. Nijabat Khan v. Nur Ahmad and others P L D 1957 I‑ah. 9.2 and Ghulam Muhammad v. Mst. Raj Begum P L D 1962 Quetta 136 ref. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(6)‑Default‑Meaning‑Provisions of S. 13(6 deal with private rights and are meant for benefit of landlord‑Default committed by tenant in complying with order under S. 13(6) Can be waived‑Order directing tenant, during pendency of pro ceeding, to deposit monthly rent before 5th of each month‑‑Tenant committing default in depositing rent of particular month on last due date but thereafter depositing rent within time‑Landlord railing to take objection for nearly one year‑Default held. to have been waived by landlord. Abdul Majid v. Saadullan and another P L D 1963 Quetta 16; Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777; Government of Province of Madras v. Al. Ar. Rm. Vellayan Chettiar A I R 1144 Mad. 544; Vellayan Chettiar v. The Government of the Province of Madras P L D 1947 P C 160 anti Maxwell on Interpretation of Statutes, 11th Edn., p. 376 ref. (d) Interpretation of Statutes‑Mandatory provisions in statute meant solely for benefit and protection of individual in his private capacity‑Application of such provisions can be waived‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(6). Maxwell on Interpretation of Statutes, 11th Edn., p. 376 ref. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15(4), Explanation‑Appeal from appellate order High Court competent to dispose of case on merits and need not remand case back to lower Court‑Civil Procedure Code (V of 1908), S. 103 & O. XLI, r.

24. Basant Singh v. Kartar Singh A I R 1936 Lah. 213 ref. (f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑Person occupying premises but not "in possession" within meaning of S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 Service of notice not necessary on such person‑Such person, however, ‑can be impleaded as party in ejectment proceedings under S. 13, West Pakistan Urban Rent Restriction Ordinance, 1959. Ahmad Ali Noorbhoy v. Sakhawat Husain P L D 1957 Kar. 790 ref. (g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 (a) (i) read with Displaced Persons (Compen sation and Rehabilitation) Act (XXVIH of 1958), S. 30(1)(b) Transferee of evacuee house‑Not entitled to eject occupant of premises on ground of personal need. (h) (Vest Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(2)(i)‑Tenant all along making genuine attempts to pay but landlord not accepting refit‑Court, in such circum stance, would not hesitate to exercise discretion in favour of tenant even if default be proved. Syed Ali Raza assisted by Raja Abdul Razzak for Respon dents. JUDGMENT SARDAR MUHAMMAD IQBAL, J.

‑The facts which gave rise to this appeal are that appellant No.1 was transferred by earmarking bungalow No. 41‑F, Model Town, and was issued a provisional transfer order on the 19th of April 1960. Respondent No. 1 was the allottee of the premises and respondents Nos. 2 to 4 were in possession of the property on account of respondent No.

1. The appellant gave a notice to respondent No. 1 on the 12th of May 1960, informing him that the said house had been trans ferred to him. The appellant again by another notice dated the 16th of June 1960 asked respondent No. 1 to pay the rent to him at the rate of Rs. 100 per month. Appellants Nos. 2 and 3 entered into a deed of association with appellant No.1 on the 4th of October 1960 and they also became the transferees of the property. On the 8th of December 1960 the appellants filed and application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the respondents, alleging that respondent No. 1 was their statutory tenant and respondents Nos. 2 to 4 were in possession through respondent No.

1. It was alleged that a sum of Rs. 700 was due to the appellants on account of the rent from the 19th of April 1960 to the 18th of November 1960, and that the respondents had only paid Rs.. 118 and were defaulters in the sum of Rs.

582. The appellants also pleaded the personal need.

2. The learned Rent Controller on the 8th of February 1961 determined the monthly rent at Rs. 90 and by making an allowance for a sum of Rs. 419 which the respondents had already paid to the appellants, he directed them to deposit Rs. 391 as arrears of rent from the 1st of May 1960 to the 31st of January 1961 and also that the future rent should be deposited before the 5th of each succeeding month. The arrears of rent were deposited. Issues were framed on the 10th of March 1961 the parties led their evidence. The petitioner‑appellants closed their affirmative evidence on the 17th of June 1961 and the case was adjourned for evidence of the respondents to the 29th o July 1961 when the case could not be taken up due to the illness of the. Presiding Officer and it was adjourned to the 23rd of September 1961. One of the witnesses for the respondent was served for the 23rd of September 1961 and he was present but on the objection of the petitioner appellants that the entire evidence be recorded together, the case was adjourned to the 9th of November 1961. The respondents were not present on the said date, whereupon ex parte proceedings were taken against them and the statement of the petitioner No. 1 was recorded. On the application submitted by the respondents to set aside the ex parte proceedings, the petitioner‑appellant Syed Masood Hussain made a statement on the 16th of November 1961 that there were sufficient reasons for the setting aside of the ex parte proceedings and he, therefore, had no objection to their being set aside. Proceedings were set aside and the respondents were directed to produce their evidence on the 12th of February 1962. It was also ordered that the respondents should put in the Court the receipts of the deposit of rent on the 13th of January 1962. The Court on the 13th of January 1962 observed that the petitioner No. 1 and the respondents were present in person and the receipts had been put in the Court. This fact is significant to which I shall be making reference presently. The respondents concluded their evidence on the 1st of May 1962 and petitioner No.1 also appeared as his own witness on the 1st of June 1962. The case was adjourned to the 7th of July 1962 for arguments. Arguments were heard on the 14th of July 1962 and the case was adjourned to the 24th of July 1962 for orders. On that day the counsel for the petitioners sought a further opportunity to address arguments. The case was accordingly adjourned to the 17th of September 1962 for further arguments. An application was moved by the petitioner to the effect that the respondents had failed to deposit rent for the months of May and August 1961 before the fifth of the following months, and an order under clause (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance was solicited. The respondents had deposited the rent for the month of May on the 5th of June and for the month of August on the 5th of September 1961. Ch. Hassan Nawaz, Rent Controller, instead of passing the order on the main petition proceeded to take action under clause (6) of section 13 and by holding that the respondents have failed to deposit the rent for the month of August before the fifth of September 1961 struck off their defence and ordered the respondents to put the petitioners in possession of the property within two months. The respondents preferred an appeal, which was accepted by the learned District Judge, Lahore, on the 22nd of June 1963, on the ground that the Rent Controller should have acted in accordance with the provisions of Order XX, rule 5, C. P. C., and given the judgment on merits rather than to have taken action under section 13(6). He, therefore, remanded the case to the Rent Controller with the direction that he should decide the case on merits. The petitioners have come up in second appeal.

3. The first question which arises for consideration is whether it was necessary for the Rent Controller to have acted under Order XX, rule 5, C: P. C. The learned District Judge acting under the provisions of Order XX, rule 5, C. P. C., had held that since the case was ripe for arguments, the Rent Con troller should have proceeded to give the judgment on merits rather than to have proceeded under clause (6) of section

13. It is one thing to say that the learned Rent Controller at that stage of the proceedings besides passing an order under clause (6) of section 13 should have also, in all propriety, given the judgment on merits, and quite an6ther to say that at that stage he was debarred to take action under clause (6) of section

13. The provi sion of section 13 (6) express, explicit and mandatory and admits of no implications or exceptions. Whatever may be the, stage of the proceedings, if the default is committed by the tenant within the meaning of clause (6) of section 13, he becomes liable for an A action contemplated therein. The learned District Judge was, therefore, in error to hold that the Rent Controller could no pass an order under reference. In accepting the appeal the learned. District Judge placed reliance on Malik Taj‑ud‑Din Ahmad v. Dr. Muhammad Abdul Shakoor (P L D 1962 Lah‑175). The facts of that case are distinguishable. The objection under clause (6) of section 13 as to the default committed by the tenant was not taken before the Rent Controller who decided the case on merits. The District Judge entertained this objection for the first time, and instead of deciding the appeal on merits took action under section 13(6) and ordered the ejectment of the tenant. The High Court in second appeal held that it was too late at the appellate stage to strike off the defence of the appellant.

4. The next question which calls for determination is whether the respondents had committed any default. There is no dispute as to the fact that the rent for the month of May was deposited on the 5th of June and the rent for the month of August was deposited on the 5th of September 1961. The learned Rent Controller did not take notice of the deposit made on the 5th of June and in my opinion rightly. The 4th of June was holiday it being Sunday. The respondents, therefore, could validly deposit the rent on the next day. Under section 10 or the General Clauses Act if a Court or office is closed on the day when an act is to be performed 'therein, the act can performed on the next opening day of the Court or office. This was the view taken also by B. Z. Kaikaus, J., in Nijabat Khan v. Nur Ahmad and others (P L D 1957 Lah.92) and by Inamullah J., in Ghulam Muhammad v. Mst. Raj Begum (P L D 1962 Quetta 136). There is no ostensible reason as to why the rent for the month of August was not paid on the 4th of September or before that date. The learned counsel for the respondents drew my attention to the treasury challan to show that respondent No. 1 had signed it on the 1st of September 1961 and presented the same for the orders of the Court, but since the orders could not be passed before the 5th, it was not possible for him to have made payment before that date. Even if I accept the contention to be correct then too the respondent No. I cannot take any benefit of it for the reason that it was not something which could be considered to be beyond his control to avoid this defence. Firstly, there is no reason why the learned Rent Controller should have delayed the passing of an order on the said challan, which needed no application of mind and had to be done only mechanically. Assuming that he had failed to pass the order, the respondents should have been aware of the consequences of the default, and therefore, they could stress and emphasize on the Court of a necessity to its passing an order before the 5th to‑enable the respondent .to deposit the rent within time. There is nothing on the record to indicate that any application or request in this behalf was made. The default, under the circumstances, cannot be considered to have happened for the reasons which were beyond the control of the respondents. In Abdul Majid v. Saadullah and another (P L D 1963 Quetta 16) the word "default" was held to mean to embrace every failure in the performance of an obligation unless prevented by superior force over which he had no control. The same view was taken in Mst. Shah Jehan v. Mst. Mukti (P L D 1963 Kar. 777). The definition of the word "default" as given in Stroud's Judicial Dictionary was accepted in both the judgments.

5. There is, however, another aspect of the case. The default was committed for the month of August in September. The respondents had been paying the rent thereafter within time till the matter was decided against them on the 17th of September 1962. The petitioners did not take any objection to this default for a period of more than one year. Petitioner‑appellant No. 1 appeared as his own witness on the 25th of November 1901 after the ex parse proceedings were taken against the respondents. He did not make any reference to the default. Before me the petitioner pleaded ignorance about this default. There, however, remains no ground for ignorance after the 13th of January 1962 when the respondents deposited all the receipts in Court in pursuance of the order of the Court dated the 16th of December 1961. Respondents Nos. 1, 2 and 3 appeared as their own witnesses on the 12th of February 1962. No question .vas put to any of them in cross‑examination as to this even at the time when the arguments were heard for the first time on the 14th of July 1962. The objection was taken only on the 17th of September 1962. Relying on these facts that counsel for the respondents argued that the appellant had waived his objection and the R. C. should not have taken notice of it. The learned counsel for the appellant in reply contended that the language of clause (6) was imperative and consequently there could be no question of waiver, and that although it may be proper to take an objection about defence made under clause (6) of section 13 at the earliest possible moment, the failure to do so would not deprive the section of its force. Doubtless, the provisions of section 13(6) are mandatory. In support of his argument, he relied on Government of Province of Madras v. Al. Ar. Rm. Velleyan Chettiar (A I R 1944 Mad. 544). It was, no doubt, held in this case that section 80 of the Code of Civil Procedure was rhandatory and the language of the section being imperative there could be no question of waiver. This decision, however, cannot be considered to be laying down a good law in view of the pronouncement of the Judicial Committee in Vellayan Chettiar v. The Government of the Province of Madras (P L D 1947 P C 160). In that case their Lordships laid down that notice required to be given under section 80, C. P. C., could be waived if the authority concerned thought fit to waive it, and observed: "It is for his protection that notice is required: if in the particular case he does not require that protection and says so; he can lawfully waive his right." In the case of Bodi Venkalaswami v. Adada Mahalakshmi (A I R 1949 Mad. 747), the Madras High Court also held that the notice could be waived and its provision could also be no bar. To me there appears no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the Court an that they may be waived by the authority for whose benefit they are provided. In Maxwell on Interpretation of Statutes, llth Edition, at page 376 it is said that "everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended, a matter of public policy, to have a more extensive operation." The provisions contained in clause (6) of section 13 by all mean deal with private rights intended to mean for the benefit of the landlord only. Again, Maxwell, relying on East India Co. v. Paul ((1849) 7 Moo. P C 85) and Lade v. Trill ((1842) 6 Jur. 272) says that "a person may agree to waive the benefit of a Statute of Limitation". It was also held in Jalal v. Aziz‑ud‑Din (P L D 1963 Lah. 436), that the provisions of section 13(6 of Ordinance VI of 1959 are for the benefit of the landlord, and on general principles their application may be waived then. On their objection to the default committed by the respon dents in making the payment on the 4th of September, the defence of the respondents could not be struck off under section 13(6). The appeal on this short ground merits to be dismissed.

6. The learned District Judge remanded the case to the Rent Controller. The parties have been litigating since December 1960. More than three years have elapsed. Instead of remanding the case I have decided to hear the appeal on merits. The parties have led their evidence. The case was fixed for arguments on the 17th of September 1962. I am competent to hear and dispose of the appeal myself. Explanation to clause (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, says that the High Court in hearing the appeal against the appellate orders will be governed by the procedure provided in this behalf for hearing the second appeals in the Code of Civil Procedure. Under section 103, C. P. C., the High Court may, in second appeal, if the evidence on the record sufficient, determine any issue of fact necessary for the disposal of the appeal which had not been determined by the lower appellate Court. The lower appellate Court undoubtedly has not dealt with the merits of the case. Again, it is provided in Order XL1, rule 24,C. P. C., which is applicable to a second appeal, that by virtue of Order XLII, C: P. C., where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the appellate Court can finally determined the suit. The appellate Court, therefore, need not send the case back to the lower Court, merely for the purpose of obtaining a finding on the evidence that already exists on the record which the appellate Court can weigh and discuss. This was the view taken also in Basant Singh v. Kartar Singh (A I R 1936 Lah. 213). 1, however, asked the parties if they or any one of them had any objection to my hearing and deciding the case on merits, but they had none.

7. Before I deal with the case on merits I wish to observe that the defence was struck off by the learned Rent Controller at a stage when the entire evidence had been recorded and he had only to hear the arguments to dispose of the petition. There i no doubt as to the fact that he could even at that late stage take action under section 13(6) of the Rent Restriction Ordinance, but since the case was complete for disposal on merits as well, h should have in all propriety passed an order both on merits and under clause (6) of section

13. It would have saved the partie from a protracted litigation and repeated appeals in the same case. It is desired on the part of the judicial officers that the should as far as possible, decide on all the matters arising between the parties, inasmuch as a piecemeal trial leads to unnecessary multiplicity of litigation. The object of the law too well known to be re‑emphasized that there should be an end to litigation and one should aim at avoiding superfluous pro ceedings which are bound to cause unnecessary inconvenience an hardship to the parties. 8, Following issues were framed in the case, namely:‑ (1) Has the respondents been paying or tendering rent without default? (2) Does the petitioner require the premises bona fide for his personal use? If so, can he get the premises vacated within three years of the transfer? (3) Has the Rent Controller no jurisdiction to try this application?

9. I may deal with the question of‑ jurisdiction first. This objection is based on the ground that respondents Nos. 2 to 4 were not given any notice by the petitioners as is contemplated in section 30 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958. In my opinion, no notice to them was necessary. They were not in possession of the premises within the meaning of section 30 of Act XXVIII of 1958. The allotte of the bungalow was Khan Muhammad Saeed Khan, respondent No.

1. He, therefore, became the statutory tenant of the petitioners. Respondents Nos. 2 to 4 admittedly are his relatives. They were living there in the premises not in their own right but on account of respondent No.

1. The rent of the premises was paid by respondent No. 1 to the Rehabilitation Authority and the other respondents made payments only to respondent No.

1. Again, after the transfer of the premises in favour of the petitioners, respondent No. 1 paid or offered the rent to the petitioners. The other respondents, according to their own showing, have been paying their share to respondent No.1 only. Under the circumstances no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was necessary to these respondents. On behalf of the respondents no objection has been raised as to the imp-leading of respondents Nos. 2 to 4 in these proceedings. I am, therefore, not called H upon to determine whether they were in the present proceedings necessary or proper parties. According to the view taken in Ahmad Ali Noorbhoy v. Sakhawat Husain (P L D 1957 Kar 790), a sub‑tenant could be impleaded is a party in the proceedings of ejectment against the tenant.

10. It was also contended that the Rent Controller could not assume jurisdiction unless the notice had been given on behalf of all the petitioners, but the notice, dated the 12th of May 1960, had been given only by petitioner No.1. The house was transferred to petitioner‑appellant No. 1 in the earmarking scheme and he was issued a provisional transfer order on the 19th of April 1960. He was, therefore, a transferee within the meaning of section 30 of Act XXVIII of 1958. The notice was given by him. Petitioner‑appellants Nos. 2 and 3 only associated with petitioner No. 1 on the 16th of October 1960. These petitioners are not the transferees in their own right, but they are claiming through petitioner‑appellant No.

1. I find no force in this contention.

11. On the issue as to the personal need of the petitioner appellant No. 1, the petitioner‑appellants have examined Mir Muhammad (P. W. 1) and Dr. Burhan Ahmad (P. W. 2). Petitioner No. 1 also appeared as his own witness. By the evidence which has been brought on the record I am satisfied that the house in which the petitioner is living is not adequate for hi needs. He is an Advocate of this Court. He has a family consisting of himself and his six children. He needs the premise in good faith for his own use. The issue is found in his favour, but I cannot grant him any relief in view of the clear provision of proviso (b) to subsection (1) of section 30 of Act XXVIII o 1958, whereby a person in possession is protected from ejectment for a period of six years.

12. As to the issue whether the respondents had been paying or tendering the rent without default, it may be mentioned that petitioner No. 1 was transferred the property on the 19th of April 1960. He wrote to respondent No. 1 on the 12th of May 1960 informing him of the transfer and asked him to vacate the house after the statutory period since he needed the same for his residence. It may be mentioned that at that time the statutory period was three years from the date of such a notice. The respondent No. 1 sent him a cheque for Rs. 50 as rent due for the month of May. The appellant again wrote him a letter on the 16th of June 1960 acknowledging the receipt of the cheque and intimating to the respondent that the rent of the bungalow was Rs. 100, according to the assessment of the Corporation of the City of Lahore and that he should pay also the rent for the period between the date of transfer, i.e., 19th of April to the 30th April. Respondent No. 1 in his letter dated the 21st of June 1960 (Exh. R. 6) to the petitioner, enclosed a cheque for Rs. 18‑5‑3 as rent for this period, and expressed his readiness to pay the rent to him according to the new assessment, and to do so he asked the petitioner to furnish him with an authentic proof of the increase in the rental value of the house. The respondent again enclosed a cheque for Rs. 50 to the petitioner in his letter of 2nd of July 1960 as rent for the month of June and complained to him that his letter of 21st June had not beet& acknowledged. He also reminded the petitioner that he had failed to furnish any proof in support of his demand for increase of the rent from Rs. 50 to Rs. 100 he petitioner wrote a letter to the respondent, dated the 7th of Ju1960 (Exh. P. 6) acknowledging the receipt of his letter dated the 2nd of July 1960. There was no reference in this letter to the enhanced rent. No proof of the enhanced rent was furnished either. He however, asked the respondent to send the rent by cash or through money order. The respondent sent him Rs. 50 in cash and wrote a letter dated the 3rd of August 1960 (Exh. R‑3) and again requested him to furnish him with the roof of the increase of rent: This letter is stated to have been sent by hand through Ch. Saeed‑ud‑Din (R. W. 1). Another letter, dated the 8th of August 1960 (Exh. R. 4), was sent by registered post with a cheque of Rs.

50. The letter was returned with an endorsement that the petitioner refused to accept it. This letter was opened in the Court. According to this letter the petitioner had refused to sign a receipt for Rs. 50 which was sent to him through, Ch. Saeed‑ud‑Din (R. W. 1) and the respondent, therefore, felt constrained to send him the amount through cheque again. On the 24th of September 1960 the respondent again sent a letter to the petitioner recounting the earlier events and inform ing the petitioner that he had been offered the rent by Mr. A. Ghani, Respondent, but he declined to give the receipt and he was, therefore, compelled to deposit the rent for the months of July and August 1960 at the rate of Rs. 50 in the Court of the Senior Civil Judge. The deposit had already been made on the 22nd of September 1962. Again, the respondent informed the petitioner on the 23rd of November 1960 (Exh. R‑9) that he had deposited on the same date a sum of Rs. 100 with the Senior Civil Judge (Rent Controller) as rent for the months of September and October 1960. She respondent then wrote a letter on the 13th of January 1961 (Exh. R‑23) to inform the petitioner that he had deposited the rent of two months. N6vember and December, in the Court. It may be noticed here that the petitioner did not write any letter after the 7th of July 1960 (Exh. P‑6). He, however, filed the petition on the 6th of December 1960, alleging default.

13. The question which arises for determination is whether the petitioner‑appellant was justified in demanding the rent from the respondent at the rate of Rs.

100. Under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the respondent was liable to pay the rent-which he had been paying immediately before the transfer. This rent was admittedly Rs. 50 per month. The petitioner‑appellant under proviso (a) to subsection (1) of section 30 could charge a rent on the basis of the latest assessment carried out by the Municipality. According to the assessment of the Corporation of the City of Lahore the annual value of the bungalow for the year ending 1959 was Rs. 1,

080. On this calculation the rent of the bungalow comes to Rs. 90 per month. The petitioner had, therefore, no justification to demand rent at Rs.

100. It may as well be noticed that the respondent had been incessantly calling upon the petitioner to furnish him with the proof of the assessment, but the petitioner did not care to do so. I have noticed that there was a genuine desire on the part of the respondent to pay the rent as was due from him and he had indicated his intention right from the very beginning. Immediately after the receipt of the letter of the petitioner dated the 12th of May 1960 he sent the rent to him for the month of May on the 2nd of June, although no demand was made in the said letter. Again, when he was informed by the appellant on the 16th of June that the rent was due from him from the 19th of April 1960 the respondent hurried to send Rs. 18‑5‑3 on the 21st of June 1960. The conduct of the respondent, under the circumstances, is not one which may be considered to be even bordering on a desire to avoid the discharge of his ability.

14. It was, however, contended that the respondent came to know of the assessment of the Municipal Corporation after he received the notice and he should, therefore, have sent the rent at the rate of Rs. 90 per month. The respondent has admitted this fact in his statement, but in my opinion there was no obligation on him to send the rent at that rate. He was liable to pay the rent which he was paying. It was, however, the right of the petitioner‑appellant to demand enhanced rent based on the assessment of the Municipal Committee. If the appellant did not make proper demand there was no obligation on the part of the respondent to pay any other rent except to one which he was liable to pay before the transfer.

15. There is yet another aspect of the case. The Corpo ration of the City of Lahore had assessed the annual rental value of the premises at Rs. 1,

080. They were, however, not competent to assess this bungalow. This bungalow is situated in Model Town, Lahore. In 1940, a conference was convened at Simla between the representatives of the Provincial Government and the representatives of the Co‑operative Model Town Society, Model Town, Lahore. It was decided at the conference that the management of the Model Town Society was to exclusively remain with the Society; it was to remain in control of all building operations within its area and was to be exempted from the operations of the relevant provisions of the Municipal Act, arid accept for octroi duty, the Society was to be exempted from all municipal taxes. It was in pursuance of this arrangement that the Governor of the Punjab in exercise of the powers conferred on him by subsection (1) of section 132 of the City of Lahore Corporation Act, 1941, issued Notification No. 3416‑26‑43/57072 on the 9th September 1943 exempting with effect from the 1st of January 1940 all lands and buildings situated within the area administered by the Model Town Co‑operative Society. y, virtue of this notification the Corporation of the City of Lahore could not exercise its powers of imposing any tax on buildings in respect of those situated in Model Town. To ascertain whether the notification was still in force or not, I called upon Qazi Muhammad Ashraf, the Legal Adviser of the Corporation, to address me on this point and also to shove if here was any power vested in the Corporation to excess and recover a tax on the buildings situate within the area administered by the Model Town Society. He stated that no notification had so far been issued withdrawing the notification referred to above. He maintained that Model Town was within the Corporation Limits of the City of Lahore, but frankly admitted that in view f the notification the Corporation could not impose any tax. That being so, the assessment relied upon by the petitioner appellant whereby the monthly rent comes to Rs. 90 can be of no avail to him. The respondents, under the circumstances, are liable to pay only the rent which they were paying before the 19th of April 1960 only view of this position the respondents, in my opinion, have not committed any default.

16. The learned counsel for the appellants and appellant No.1 himself however, maintained that the respondents were defaulters at the time of the filing of the petition even on the basis of the rent .at the rate of‑Rs. 50 per month. The contention is untenable. Respondent No. 1 was called upon for the first time to pay the rent by the letter dated the 16th of June 1960. The bungalow was transferred in favour of the petitioners on the 19th of April 1960. The respondents paid the arrears of rent by the 21st of June 1960. So far as the future rent was concerned, since there was no agreement of tenancy between the parties, the respondents could incur the liability of ejectment only if they had not paid or tendered rent within sixty days from the period for which the rent was payable. The deposit in the Court is certainly within sixty days of each month due from the respon dents. They are, therefore, not in default. I may, however, notice that even if the petitioner appellants had succeeded proving any default, I would not have hesitated, in the circumstance of the case, to exercise discretion in favour of the respondents for the reason that they had all along been making genuine attempt to pay the rent. If the petitioners chose not to accept the rent, the had to blame themselves and the respondents cannot be made to suffer for the conduct of the petitioner.

17. In the result, the appeal is dismissed. I will, however, leave the parties to bear their own costs.

18. The leave is granted to the appellants for preferring the letters patent appeal. K. B. A. Appeal dismissed.