P L D 1965 (W (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(2)‑Application for ejectment on ground of non‑payment of rent‑Circumstances and evidence not sufficient for coming to definite finding about non‑payment‑Doubt to be resolved in favour of tenant‑Mere non production of receipts‑No ground, in circum stances of case, for recording finding in favour of landlord. (b) West Pakistan Urban Rent Restriction. Ordinance (VI of 1959), S. 13(2)‑Expression "Controller may mke an order directing the tenant to put the landlord in possession"‑Suggests permissive action by Controller‑Ordering ejectment of tenant on ground of non‑payment of rent‑Matter of discretion with Con troller. (c) Interpretation of statutes‑Words, bearing interchangeable meanings in certain context but capable of different and distinct meaning, used by Legislature in same context‑Separate use envisages different results. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13(2) & 13(3)‑Rent Controller, under S. 13(2), has discretion to order or refrain from ordering ejectment‑No such discretion, however, rests with Controller in circumstances described in S. 13(3). This is a second appeal by Muhammad Shafi, who was a defendant in an application brought by the respondent Iqbal Ahmad under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), for his ejectment from Shop No. B‑1X/300, situate in Bazar Kalan, Jhelum. The application was dismissed by the Senior Civil Judge, Jhelum, as a Controller under the Ordinance. An appeal was preferred by the respondent to the District Judge, Jhelum (Mr. Abdul Hakim Khan), who reversed the judgment of the first Court and ordered the eviction of the appellant. Hence this second appeal.

2. The prayer of the respondent for the appellant's eject ment proceeded on two grounds: (1) that he had brought sub tenants on the premises, namely, Muhammad Ibrahim and Sadar Din, who were impleaded as defendants Nos. 2 and 3 in the application and (2) that he had not paid rent for the three months preceding the institution of the application. The application was filed on the 25th of January 1961, and the three months in respect of which the arrears of rent were outstanding against the appellant, according to paragraph 3 of the plaint, appear to have been accepted by the parties as also by the Courts below as the months of October, November and December 1960. However, it may be noted that the plaintiff‑respondent himself did not make any effort to specify these months as even in the statement made by him in the course of the trial on the 20th October 1961, he had stated generally that the defendant‑appellant was in arrears of rent for thirteen months, presumably adding the period of ten months from January 1961 uptil the date on which he was making the statement.

3. The defendant‑appellant in his reply repudiated the plaintiff

respondent's allegations, denying that he had introduced sub‑tenants in the premises or that he was in arrears of rent. He averred that he had cleared the rent up to the end of 1960 whereafter the respondent put up a demand for higher rent and refused to accept the rent for January 1961 at the old rates. He had, therefore, remitted the rent for two months, January and February 1961, by a money order remittance on the 2nd of February 1961. He had been depositing the rent for the subse quent months in Court under the directions of the Rent Controller, who had also made the direction for the deposit of Rs. 111 towards arrears of rent for the 'months of October, November and December by the 29th of September 1961, which order was duly complied with.

4. Three issues were framed by the Rent Controller on which the trial was held. These were as follows:‑ (1) Whether Sadar Din is also a tenant of the petitioner? (2) Whether the respondent No. 1 has not paid rent of October, November and December 1960 and what is its effect? (3) Whether respondent No. 1 has ever sublet the shop in dispute to any person and what is its effect? All the issues were found in favour of the appellant by the Rent Controller with the result, as already stated that the respondent's suit was dismissed.

5. In appeal, the learned District Judge upheld the finding of the trial Court that Muhammad Shafi had not sublet the shop either to Ibrahim or to Sadar Din but disagreed with it on .the second point and held that there was "no cogent evidence to show that Muhammad Shafi tenant had paid rent for the three months preceding the institution of the application". This finding was reached mainly on the consideration that Muhammad Shall appellant did not possess any receipt as evidence of payment, although the rent deed dated the 24th of June 1955, which‑ he bad executed in favour of the respondent, provided that the rent shall be paid against receipts. The supporting verbal testimony of Muhammad Husain (R. W. 4) in this behalf was disbelieved. Muhammad Husain had alleged that he was present when the appellant paid rent to the respondent on each of the four occasions which the learned District Judge has considered as a strange coincidence. Finally, the circumstance that the appellant had remitted by money order rent for the two, months of; January and February on the 6th of February 1961 was construed against him for the reason that the rent remitted by money order early in February must have represented the past arrears, as it was not shown that he was in the habit of paying advance rent and the lease deed did not contain any such requirement. While dismissing his the learned District Judge directed the surrender of possession of the disputed shop by the appellant within a period of four months from the date his order, viz., the 26th of April 1962.

6. The learned counsel for the appellant has contended before me that the learned District Judge has made a wholly erroneous approach to the case by picking up weaknesses in the appellant's evidence and interpreting certain circumstances against him, ignoring that initially the onus was on the respondent landlord to prove that the appellant‑tenant had not paid the rent as alleged, which was not satisfactorily discharged by him, as he had contented himself by his own testimony which was far from being satisfactory. On the question of issuing receipts to his tenants, the respondent admitted that he did not keep any record of it and that he was in the habit of signing the copy books of the tenants, acknowledging the payment of rents which the tenants kept with themselves. While he was sure that he was signing the receipts written in the copy book of Muhammad Shafi appellant in acknowledgment of the receipt of rent from him, he did not remember if he followed the same practice in the case of his other tenants. He also did not remember if the rent for two months was sent to him by money order by the appellant, which he had refused to accept. It was not denied that the appellant is the respondent's tenant since the year 1947 and he had not made any default in payment of rent except for the disputed three months of October, November and December 1960. It appears to me rather incredible that the appellant, who was admittedly paying rent regularly since 1947, without any default, suddenly allowed himself to go into arrears for three months, thus inviting an application for his eviction from his landlord. I feel that the non‑production of the receipts by the tenant has been given an exaggerated importance by the learned lower appellate Court. It is not unusual for old tenants, like those placed in the position of the appellant, not to insist on the execution of receipts, thus avoiding to express openly a lack of faith in the honesty of purpose of the landlord. The fact that the rent for the month of January 1961 and in advance for the month of February 1961, was remitted by money order cannot be doubted, as the statement of the appellant on this point was not at all contradicted, and tile respondent simply met it by a vague reply that he did not remember the arrival of the money order. I feel that on the evidence on record and the entire circumstances of this case it is not possible to give a conclusive finding safely, one way or the other, whether rent was in fact paid for these three months, as alleged by the appellant, or remained in arrears, as alleged by the respondent. In this situation, since the onus was one the respondent to prove non‑payment of rent, the doubt has to be resolved in favour of the appellant.

7. The ejectment of the appellant, however, must be refused for another consideration. Under section 13(2) of the Ordinance, eviction of the tenant on the application of a landlord on the ground of non‑payment of rent and other eventualities as enumerated in sub‑clauses (i) to (vi) of that section is a matter of, discretion with the Controller, as suggested by the language of the relevant provision to the effect that "the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land". This becomes clear in contrast with the language used in respect of the tenant's eviction on account of certain other factors as enumerated in subsection (3) of section 13 in which case the Controller, as laid down in sub‑clause (b) of the same subsection, "shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord into possession of the building or rented land". When words, although bearing inter changeable meanings in certain contexts but which are also capable of different and distinct meanings are used by the Legislature in the same context, the intention is clear that their c separate use envisages different results. Therefore, while the word "may" used in section 13 of the Ordinance suggests a permissive action in one set of circumstances described in sub -clauses (i) to (vi) of section 13(2) of the Ordinance the word "shall" used in the same context for another set of circumstance described in subsection (3) of the same section suggests a compulsive action. I feel that in the present case, on the type of the default alleged against the appellant, his eviction was discretionary with the Rent Controller. Because of the attending circumstances of this case, the discretion should have been exercised judicially and more appropriately in refusing the respondent's application. As already stated; the appellant is in possession of the disputed shop since 1947, with no complain of any default for such a lengthy period of time except for the default in payment of rent for the three disputed months of October, November and December 1960. The respondent-landlord's other plea for the appellant's eviction, namely, that he had brought sub‑tenants on the shop was found to be false, showing that he was keen to resort to every device which he could avail of to secure the appellant's eviction. In this view of the matter, I accept this appeal and set aside the order of the learned District Judge, restoring that of the Rent Controller, with no order as to costs. K. B. A. Appeal accepted.