1990 PLP 706 (CLC)

Riaz‑ul‑Hasan for Respondent. Date of hearing: 4th October, 1989. The allegations on which the appellant brought the application for eviction against the respondent out of‑which this appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has arisen might be summarized.

2. The respondent is the tenant of appellant in respect of residential premises bearing. No. 1695/2, Federal `B' Area, Karachi, at a monthly rent of Rs.150. The respondent who is a habitual defaulter in payment of rent did not pay rent to appellant from December 1976. Besides, the appellant who had been living with her sons wanted to live separate and, therefore, needed the above premises for her own occupation. On 29‑9‑1977, the appellant filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (since repealed) seeking ejectment of the respondent on the above grounds. The respondent contested the application for ejectment. He claims to have tendered rent through money order after the rent collector of the appellant refused to collect rent. The money order was, however, refused and thereafter the rent was deposited in the office of Rent Controller. The bona fides of the appellant as to requirement of premises for personal occupation were also disputed.

3. The parties went to trial on the following issues:‑ (i) Whether the opponent has committed a wilful default in the payment of rent with effect from December 1970? (ii) Whether the case premises is required by the applicant for her personal bona fide use in good faith? (iii) What should the order be?

4. The parties have tendered evidence by filing their respective affidavits‑in evidence. On the assessment of evidence the learned Rent Controller decided both the issues against the appellant and consequently dismissed the application for ejectment vide order dated 13‑10‑1984, hence the present appeal.

5. Admittedly there is no written agreement between the parties regulating the tenancy. The appellant as her own witness (P.W. 1), has stated on oath that the respondent is a habitual defaulter and has not paid rent since December 1976. The respondent has controverted this allegation in his affidavit‑in‑evidence by stating that Mr. Umar Ilyas who used to collect rent on behalf of appellant did not accept the rent for December 1976, as he insisted for enhancement of rent. The law requires a tenant to tender rent regularly. The mere refusal by landlady or her rent collector did not absolve the respondent from his liability to tender rent in the manner prescribed by law. According to the respondent's own showing increase in rent was demanded in December 1976, but still the tender of rent was delayed till April 1977, when the respondent had already become a defaulter in spite of statutory allowance.

6. Obviously the tenancy was from month to month and consequently acceptance of arrears of rent in lump sum in past cannot absolve the respondent from his liability to pay rent regularly. The cases reported as Mrs. Alima Ahmed v. Amir Ali (P L D 1984 Supreme Court 32), and Shahryar Ali Pataudi and 3 others v. Messrs Decora Furnishers (P L D 1985 Karachi 47) are relevant in a situation like this. The finding of learned Rent Controller regarding payment of accumulated rent being matter of practice is, therefore, unfounded and cannot be sustained.

7. The expression, "tenant has not paid or tendered rent due by him" was examined by Zaffar Hussain Mirza, J. (as he then was) in the case of Muhammad Ahmed v. Mst. Qaynar Anwar Shaikh, reported in 1980 C L C 664 and it was held that if default in payment of rent within prescribed period is committed, the tenant would be liable to be ejected notwithstanding subsequent payment of'~, arrears of rent unless he can make out a case of waiver on the part of landlord.

8. Section 13 (2) of the Sind Urban Rent Restriction Ordinance, 1959, vests a judicial discretion in the Rent Controller to direct or not to direct the ejectment even if the default is proved. Discretion amounting to extension in the statutory grace period ought not to be exercised arbitrarily. This view was taken by Qadeeruddin Ahmed, CJ (as he then was) in cases reported as Ghulam Hussain v. Muhammad Rafiq (P L D 1965 Karachi 4M), Tahir Khairullah v. Zareefunnisa (P L D 1968 Karachi 182), and Taiyaba Khatoon v. Muhammad Fariduddin (P L D 1971 Karachi 747). It was observed by him that if the landlord proves the essentials for ejectment, the Controller has to order the ejectment of tenant. Paragraphs 17 and 18 of the last cited authority are relevant and are reproduced in extenso:‑ "

17. A question would arise here as to what is then the import of the word `may'? 1t is true that "may" is not a substitute for "shall" and, therefore, the flexibility which it connotes cannot be disregarded. While conceding this much, we must also realise that the flexibility which it connotes is utilized sometimes by way of the courtesy of the legislature in dealing with the judicature, sometimes to convey a duty and sometimes simply to confer discretion. Its flexibility is the maximum when it confers discretion, but discretion does not mean willfulness or thoughtlessness or waywardness. On the contrary, it connotes discernment and prudence or exercise of careful judgment. There can be no discernment or prudence or due exercise of judgment, without first finding out or evolving sound guidelines. Where guidelines are provided alongwith the conferment of discretion, it is indiscretion to ignore them. Jurists and Judges have again and again explained that discretion does not import uncontrolled and naked power but a tendency persists to look upon discretion as a loophole in a rule or law and attempts are sometimes made to use the existence of discretion as a weak spot in a well‑considered provision and to exploit that supposed weak spot to defeat its guidelines. This is entirely wrong.

18. When discretion is conferred on a judicial or quasi judicial authority, it means: judicial discretion. The word `judicial' limits and regulates the processes of discretion by confining them to the scope of law. Once a situation is found to be, or is such as must be held to be, permitted or prohibited in terms of the guidelines provided by law, it will be indiscreet and as such against law, to treat it or declare it to be otherwise. From the practical point of view a question will relevantly arise as to what is the difference between the existence and non‑existence of judicial discretion in respect of a provision, like subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, in which detailed guidelines are provided. The answer is that in such circumstances all relevant weaknesses of proof produced by either side and all relevant doubts in respect of strict compliance of the provisions should be resolved in favour of the party for whose benefit the discretion has been conferred. In the application of the provision now under consideration the benefits of all such weaknesses and doubts ought to go to the tenant. This does not mean that an established situation should be disregarded merely because it is unfavourable to the tenant or does not work as a kindness to him. In this case now under consideration we should note that the word `default' does not occur in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the days of grace for paying or tendering rent which may become due by agreement or otherwise are fixed; therefore, if it is duly proved that rent has not been paid or tendered in terms of clause (i) of subsection (2) of section 13 read with Explanation (b) to the subsection, the Rent Controller cannot excuse it, merely because in terms of the law failure took place only once. This would amount to introducing in the legislation some gratuitous failures in addition to the days of grace provided in it for paying or tendering rent."

9. I am in respectful agreement with the above view. Sentiment is a dangerous guide in the search of legal principles. As observed in Abdul Hafeez Abdul Nabi v. M. Daud Ali (P.L.D. 19(11 Dacca 34) those seeking benefits under the Rent Ordinance must discharge their own obligation as tenants by making payment of rent to the landlord in due time. The finding of Rent Controller on issue of default is, therefore, reversed and is answered in favour of appellant.

10. The appellant also requires the premises for her own occupation. Paragraph 6 of her affidavit‑in‑evidence relates to this ground of ejectment, which reads as follows:‑ "That the applicant is residing in a rented house alongwith her two sons who are married and the said house is insufficient for the whole family of the applicant, hence she requires the abovesaid premises in good faith for her own bona fide personal use."

11. The respondent has questioned the requirement of the appellant to occupy her own house in paragraph 11 of his affidavit‑in‑evidence in the following words:‑ "That the applicant is an old lady and is residing with her son. The statement of the applicant that she requires the house for her residence and that she would live alone in the house appears to be mala fide, because in her advance age the applicant is not expected to live alone and look after herself and her needs. The applicant has not stated in the application in para 4 any facts to show that she requires the house for her bona fide use."

12. The appellant has proved through her own evidence that the accommodation where she is presently putting up is not sufficient to meet her growing needs. There is nothing on record to show that she owns any other house or has vacated such accommodation. The law does not place any fetter upon the choice of a landlady to use her own premises. the respondent has also not adduced any evidence to prove mala fides against the appellant. In any event, the law' provides for adequate safeguards to a tenant in case the landlady fails to occupy the premises after getting the same vacated on the ground of personal requirement. 12‑A. After carefully considering the matter and on a careful review of the case‑law on this point, I am clearly of the view that the appellant is entitled to get possession of the disputed premises on the ground of personal requirement. The finding of Rent Controller on issue No.2 is, therefore, reversed.

13. In the result the appeal is allowed with no order as to costs. The respondent is, however, allowed two months' time to vacate the demised premises. Z.S./1‑91/K Appeal allowed