1989 PLP 241 (CLC)

(2) Whether the applicant requires the disputed premises for his personal bona fide use?" The parties led their evidence on affidavits and were cross- examined at length. The application was, however, dismissed on both the grounds, by the learned Controller by his judgment dated 12‑12‑1983 against which the above appeal has been filed. Mr. M.A. Rashid, ‑learned counsel for the appellant submits that‑ the learned Rent Controller has erred both on facts and law in deciding the question of default. He has referred to paragraphs 3 and 4 of the compromise application dated 25th May, 1974 filed in the earlier proceedings as well as relied upon by him in the present proceedings. He also refers to paragraph 4 of the written statement in reply to para 3 of the ejectment application and submits that paras 3 and 4 of compromise are to be read separately and given effect accordingly. Para 3 requires the respondent to pay rent every month. Therefore, it will fall due on the first of the next month and the default of rent for 15 days, as there is an agreement in writing, will entail penalty for ejectment. On the other hand, Mr.Wahid Bux Baloch, learned counsel for the respondents submits that the compromise determined the rate of rent at Rs.100 which after three years was increased to Rs.125 per month and, therefore, there can be said to be no agreement in writing and the default in payment of rent for sixty days will only entail the ejectment after it has fallen due. At the outset, I do not find myself in agreement with the learned counsel for the respondents that merely by increase of rent from Rs.100 to Rs.125 the compromise are wiped off entirely. I am of the view that the agreement exists subject to the change in the rate of rent only. It is a settled principle of interpretation of a document that the document should be taken into consideration as a whole, and A interpreted accordingly. Therefore, I will look to the entire document to find out the real intention of the parties. Reading paragraphs 3 and 4 together, I feel that the intention of the parties, as it appears from the document, read as a whole, is that in case the respondents fail to pay rent to the appellant for two months consecutively, it will entail the penalty of eviction. Now reverting to the question of default it appears that the entire case of the appellant is based on para 4 of the written statement. It seems advantageous to reproduce the said paragraph. "(4) That, the contents of para No.3 of the Kent Application are denied. It is denied that the Opponents are defaulter. It also denied that Opponents have failed to pay or tender rent for 8 months viz: 1‑11‑1978 to 30‑6‑1979. Applicant to prove otherwise. However, the Opponents will submit that after the passage of about a period of one year the Applicant again compelled and constrained the Opponents to enhance the rent of the tenement as according to Applicant he had enhanced the rent of his other shops as well. The refusal of the Opponents being reasonable that rent was only enhanced at the whims of Applicant only a year back the Applicant refused to accept the rent with the result the rent for two months viz; November, 1978 and December, 1978 was tendered at the rate of Rs.125 per month to the Applicant under postal Money Order No. 7162 dated 16‑1‑1979; but the same was also refused by the Applicant. Besides, the Applicant who himself had broken the compromise dated 28‑5‑1974 by enhancing the rent from Rs.100 to Rs.125, surreptitiously filed an Execution Application No.2 of 1979 in the Court of learned Civil Judge, Jacobabad wherein the Opponents were summoned to appear on 28‑1‑1979. Consequent to Execution Application No.2 of 1979, the Opponents made an application supported with an affidavit under Section 151, C.P.C. read with Order XXI, Rule 23 C.P.C. on 22‑2‑1979 before the executing Court to deposit in the Court the due rent inasmuch as contending that Applicant had even refused the tendered rent. Vis‑a‑vis, the Applicant even objected to deposit of due rent in the Court, and; ultimately the Execution Application No.2 of 1979 was dismissed by the executing Court on 29‑3‑1979, as not maintainable. Even, prior to this on 8‑2‑1979, the Opponents had tendered rent for four months viz. November, 1978 to February, 1979 to the tune of Rs.500 at Rs.125 per Month under postal money Order No.7608 dated 8‑2‑1979 to the Applicant but even then he refused to accept the same. Besides, on 26‑7‑1979 an amount of Rs.1,000 (One thousand) only in shape of Pay Order No.PAE‑555324 dated 31‑3‑1979 payable at Habib Bank Limited Jacobabad in favour of Applicant was sent under a covering letter dated 25‑7‑1979 by the Opponents, under a registered post A.D. cover No. 403 dated 26‑7‑1979 to the Applicant on account of rent of the tenement for the period from 1‑11‑1978 to 30‑6‑1979 which was accepted by the applicant but no proper receipt was passed by the Applicant in favour of Opponents. On 13‑8‑1979 another Pay Order No.PAE‑555370 dated 11‑8‑1979 for Rs.250 covering rent of the tenement for the period from 1‑7‑1979 to 31‑8‑1979 was sent under covering letter dated 13‑8‑1979 under a registered post A.D. cover No. 540 dated 13‑8‑1979 to the Applicant but the acceptance of registered post A.D. cover envelope was refused by the Applicant himself. Since the parties are closely related in business dealings and live and do their business in the same vicinity, the Applicant had been keeping the Opponents for passing a printed rent receipt for 8 months for Rs.1000 received in shape of Pay Order, the Opponents on 18‑9‑1979 cabled a telegram to the Applicant but to no avail. Thereafter, on 9‑10‑1979, an amount of Rs.250 was tendered under postal Money Order No.1883 dated 9‑10‑1979 being rent for the tenement as despite refusal by the Applicant refused Pay Order No PAE 555370 dated 11‑8‑1979 has not been encashed by the Opponents and the same is lying in the sealed refused cover. The Opponents have been issued first notice of the present rent application on 17‑9‑1979 requiring them to appear before this Honouiable Court and show cause in the matter on 20‑9‑1979. The Applicant to however, prove otherwise." Reading the above paragragh carefully it is apparent that the rent for the months of November and December, 1978 was tendered to the appellant by money order dated 16‑1‑1979. Counting two months or sixty days the rent for the months of November could be paid upto 1st of February, 1979. Therefore, there can be said to be no ‑default insofar as the payment of rent for the months of November and December is concerned. As for the rent for the months of January and February, 1979 (inclusive of the rent for the month of November and December as well) it was remitted by money order on 8th February, 1979 and so there again seems to be no default. On 26‑7‑1979 the respondents appear to have sent rent for the months of March to June 1979 inclusive of the rent for the months of November, 1978 to February, 1979 by a pay order dated‑31‑3‑1979 payable at Habib Bank Limited, Jacobabad in favour of the appellant under a covering letter dated 25‑7‑1979. The question, therefore, arises whether the rent for the month of March was tendered within sixty days after it fell due. Admittedly the rent for the month of March was payable under the law as well as compromise referred to above by 1st of June, 1979. There seems to have occurred a delay in the tender of rent of about two months. This leads to the consideration whether, in the facts and circumstances of the case, it amounts to a wilful default. Learned counsel for the respondents submits that the above application was filed on 29th July, 1979 and therefore, the case will be decided under the provisions of the Sind Rent Restriction Ordinance, 1959 because the new Ordinance viz. Sind Rented Premises Ordinance, 1979 was promulgated on 21st November, 1979 after the ejectment application was filed. There is, however, a provision in the Sind Rented Premises Ordinance, 1979 regarding repeal of the Old Ordinance and the effect on pending proceedings. The said section 27 reads as under:‑ "REPEAL:‑(1) The Sind Urban Rent Restriction Ordinance, 1959, is hereby repealed. (2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. (3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commence ment of this Ordinance were pending before a Controller shall notwithstanding any order made otherwise by the Controller, be continued and disposed of in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance. (4) Notwithstanding the provisions of subsection (2), all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1), in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22." Section 27 subsection (2) clearly stipulates that a case before the Rent Controller fixed for arguments or judgment filed under the Sind Rent, Restriction Ordinance, 1959 shall notwithstanding the repeal thereof, e disposed of in accordance with the said Ordinance. Learned counsel after consulting the R & P agrees that the first date for filing affidavits of evidence was fixed by the learned Rent Controller on 4‑9‑1980. It is, therefore, clear that on the day of promulgation of the new Ordinance the matter was not fixed for arguments or judgment and as such subsection (3) of section 27 will be attracted to the facts of the present case which clearly says that all other cases except which have been fixed for arguments or judgment, instituted under the old Ordinance and pending immediately before the commencement of the new Ordinance before the Controller be. continued and disposed of in accordance with the provisions of the new Ordinance viz. Sind Rented Premises Ordinance, 1979 anti any proceedings taken or orders. made in any such cases as aforesaid, shall for all purposes have effect as proceedings taken or orders made under the said Ordinance. Learned counsel for the respondents submits that subsection (3) of section 27 is procedural in nature and the rights and liabilities of the parties will be decided in accordance with the old Ordinance. Reliance is placed by him on Abdul Rehman v. Ahmed Khan P L D 1982 Kar. 532 by a Division Bench of this Court. It appears that an appeal against this decision of the High Court was filed in the Supreme Court which seems to have approved the judgment of the High Court in the above case. In the cited case the application for ejectment was filed in 1978 for eviction of the respondent/ tenant from the hotel premises. The landlord wanted to evict the tenant on ground of default in payment of rent. It was thus held that the rights and liabilities of the parties will continue under the old law whereas the procedure will be followed as provided under the new Ordinance. As a corollary to it, learned counsel for the respondents submits that the question of default will be decided under the provisions of the old Ordinance. Therefore, under the circumstances the Court may exercise discretion as provided under section 13 of the old Ordinance. However, before proceeding to examine the submission let me state that the cited case pertained to the eviction of a hotel premises which were not included under section 15 of the new Ordinance but the right to evict from the hotel was included under section 13 of old Ordinance. On the other hand learned counsel for the appellant submits that the question of exercising discretion is not a vested right of the parties and, therefore, the provisions of the new Ordinance should be attracted to it. It is true that the question of exercising discretion by the Court is not a vested right of a party if it is exercised independent of the provision. In the instant case question of exercising discretion is implicit in law and the demand of the interpretation of section 13 itself, which cannot be lost sight of, if the circumstances of the case so warrant. As stated earlier the application was filed under the old Ordinance. The default is also stated to be for a period prior to l the commencement of the new Ordinance. I, therefore, find myself in agreement with the learned counsel for the respondents that the C question of default will also be decided under the old Ordinance. Let me record the apparent distinction between the exercise of jurisdiction under section 13 of the old Ordinance and section 15 of the new Ordinance. The most significant word used in the said two provisions of law is the word "may" as used in the old Ordinance and the word "shall" as used in the present Ordinance. The word "may" apparently gives a discretion to the Controller and so also the appellate Court may exercise discretion and refuse ejectment if it is satisfied that the case of "wilful default" has not been proved to its satisfaction, whereas under the new Ordinance if the default is proved to have been committed the Court is left with no discretion to refuse ejectment., In the circumstances of the case that the opponent has been refusing to accept the rent tendered to him by money order on more than one occasion consistently without assigning any reasons perhaps, with ulterior motive to create default and catch hold of the respondents for it, and that the respondents parted with the money for payment of rent to the appellant, in the form of Bank's Pay‑Order. I feel that the respondents do not appear to have committed a "wilful default" The drawing up of a bank draft on 31‑3‑1979 at least indicates a bona fide intention on their part to pay the rent, to the appellant. I am, therefore, clear in my mind that in all these circumstances it cannot be said to be a case of wilful default. Coming to the next point of the bona fide personal need of the appellant, I have read the relevant portion of the judgment of the learned Rent Controller with the learned counsel for the appellant. It appears that the appellant got possession of a shop from the High Court in some compromise between him and some tenant which, according to the admission of the learned counsel for the appellant made before me, was let out by the appellant to some other tenant. Although the date of delivery of possession to the appellant is not mentioned in the impugned order but the word "recently" having been used by the learned Controller is enough to show that it was got vacated during proceeding of the ejectment application pending before the learned Rent Controller at that time, between the above parties. If the need of the appellant was bona fide, he would not have let out said two shops. For the above said reasons, I find no force in this appeal which is dismissed. H.B.T/A‑445/x. Appeal dismissed.