1998 PLP 1054 (CLC)

Inayat Hussain Chaudary M.A. LL.B., Advocate 6/6 Begum Road, Mozang, Lahore Dated 18‑9‑1990 L.H.C. No

Registered A.D. Muhammad Tariq, S/o Ch. Khadim Hussain, Caste Rajput, R/o House B/3704, Islam Gali, Inside Lohari Gate, Lahore. Sir, Under instructions from my clients Sardar Khan son of Muhammad Ismail and Mst. Ghulam Fatima, widow of Shamsher Khan, residents of House No. 19, Ram Gali No. 11, Outside Akbari Gate, Lahore, I serve you with the following notice:‑‑‑ (1) That you instituted suit 221/1 for permanent injunction which has been dismissed/disposed of by Rai Nazir Ahmad, Civil Judge, Lahore, on 4‑9‑1990. (2) That in para. No.2 of the plaint you had alleged that you have been regularly paying the rent to my clients regarding Shop No.H‑1275, Akbari Mandi, Lahore, and there is no default in this regard. You are required to supply all the treasury challans in your possession showing deposit of rent of shop in your possession within 7 days of receipt of this notice failing which it will be safely taken that no rent has been deposited by you in the Court of Rent Controller, Lahore. Yours faithfully (Sd.) (Inayat Hussain Chaudhry) Advocate, 6/6, Begum Road, Lahore.

12. From the bare reading of the notice, it will be seen, that there is no demand for the payment of rent at the increased rate. The notice only, provides, that the appellants had filed a suit for permanent injunction which was deposited on 4‑9‑1990 and that in para. 2 of the plaint they had alleged regular payment of the rent of the shop and absence of default. The appellant was, therefore, required to supply treasury challans. It is not claimed in the notice, that the rent stood increased by virtue of any statutory increase and also that the appellant should make payment of the rent in question with any increase. This being so, even if the notice is taken into consideration, the same would not strengthen the case of respondents nor on the basis thereof, it can be pleaded, that the appellants were duly notified or called upon to make increase in payment of rent, on account of statutory increase.

13. In National Development Finance Corporation, Shahrah‑e‑Quaid‑e Azam, Lahore v. Shaikh Naseem‑ud‑Din and 4 others (PLD 1997 SC 564), it was held as follows;‑‑‑ "The learned Judge in Chamber while holding that the petitioner had become defaulter in payment of rent, went on to observe as follows:‑‑‑ 'By virtue of the Punjab Urban Rent Restriction Ordinance, 1959 (Amendment) Ordinance 13 of 1990 which was. promulgated on 6‑6‑1990, rent stood automatically enhanced with effect from 1‑7‑1989 by 20 % . The Ordinance further provided for period of 60 days for payment of the arrears which fell due on account of promulgation of the Ordinance. Admittedly the respondent failed to discharge this liability within the prescribed period. The first effort to make payment on the enhanced rate was made by the respondent vide Exh.A‑4 when an application for permission to deposit the rent on that rate was made by the respondent. By that time, respondent has already become defaulter. " It is difficult to agree with learned Judge in Chamber that because the rent was enhanced to the extent of 20% with effect from 1‑7‑1989 by an Ordinance, hence mere non‑payment of rent according to enhanced rate, without anything else on the record, would result in penalizing the tenant. The word "default" denotes something more than mere non‑payment of rent. It has not come on record if the respondents in consequence of statutory increase in rate of rent by 20% sent any notice of such increase to the petitioner. In the circumstances, we are unable to agree with the observation made in the impugned judgment that the petitioner had become defaulter in payment of rent".

14. In the precedent case, it was held, that the word "default" denotes something more than mere non‑payment of rent. In the *aid case, in the absence of any notice requiring payment, in accordance with statutory increase, the non‑payment, with the statutory increase was not considered to be a wilful default.

15. Even otherwise, in law, mere non‑payment of rent does not ipso facto result on the eviction of tenant unless it is proved that the default was wilful which attracts exercise of discretion in favour of landlord. In this case, the respondents could not substantiate or prove the plea of default in payment of rent. Both the Courts below concurrently found, that the rent was initially paid through the agent and thereafter it was regularly deposited and no default in that regard was committed. Regarding statutory increase, the respondent neither pleaded that a notice was served upon the appellant for payment of rent in terms of the statutory increase nor led any evidence. The notice, copy of which has been placed on the record, does not make any demand for payment of rent at the increased rate and it only refers to the delivery of treasury challans. In this view of the matter, it is not a case in which no notice has been undeniably being served upon the appellants for enhancing the rent or making payment inclusive of any increase. In the absence of any demand, it cannot be construed, that the appellants had committed a wilful default. Even otherwise, the conduct of the appellants, is obvious inasmuch as, they complied with the order of the Rent Controller and deposited the rent inclusive of the statutory increase and also deposited the deficit prior to the filing of the petition, within the time giving by the Rent Controller in his ultimate order. This being so, no ground was made out for the exercise of discretion against the tenant. As regard the argument, that the case should be remanded, the same is devoid of any force. The remand was pleaded, for proving the notice. Since the notice has been taken into consideration, at this stage, as has been noted supra, and the same does not indicate, any demand for payment of rent at the increased rate, therefore, nothing is left behind for further inquiry.

16. The learned Rent Controller, for solid reason concluded, that no wilful default was committed. The view taken by the learned Additional District Judge, is violative of the rule laid by the Hon'ble Supreme Court, is the abovenoted case, therefore, the same cannot sustain.

17. For the reasons above, this appeal is accepted, the impugned order, dated 27‑2‑1997, passed by the learned Additional District Judge in appeal is set aside and the order of the learned Rent Controller, dismissing the eviction petition, is restored. In consequence, the eviction petition, of the respondent, stands dismissed. Parties to share their own costs. A.A./M‑568/L Appeal accepted