1986 PLP 2042 (MLD)

S.M. Masood for Petitioner. Nemo for Respondents Nos.1, 2 and 4. Kh. Sidiq Hassan Turk for Respondent No.3. Date of hearing: 13th April, 1986. This writ petition impugns the validity of the order of the learned Rent Controller, Lahore, respondent 2, dated the 31st January, 1983, accepting respondent 3's application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, for eviction of the petitioner from a room of the Property bearing No. N112‑R‑16, situated in Masjid a Gali No.2 of Usman Ganj, Badami Bagh, Lahore, and of the learned Additional District Judge, Lahore, respondent No.1, dated the 20th April; 1983, dismissing the petitioner's appeal against the first mentioned order. Most of the facts for the purpose of disposal of this petition are not in dispute. The Property No.N‑112‑R‑16 is a fairly big Katri consisting of rooms, houses, shops, Tharas, compounds etc. One Chiragh Din was its owner. After his death his sons, Bashir Ahmad, Nazir Ahmad, and daughters, Mst. Wazir Begum, Mst. Surraya Begum and Mst. Safia Begum inherited it. They sold it in four equal shares to Muhammad Saeed, respondent No.3, and his father, Muhammad Tufail, by means of four sale‑deeds which were executed on the 20th February, 1973, and registered on the 16th May, 1973, each of the vendees taking two shares. Muhammad Ashraf, petitioner, who was minor, at the moment (his date of birth is the 10th July, 1963), occupied as tenant a room in the portion of the Katri which respondent 3 purchased. I It was on the 3rd May, 1975, that respondent 3 gave notice under section 13‑A of the Punjab Urban Rent Restriction Act, 1959, touching transfer of the property in his favour to the petitioner for purpose of I paying him rent. On the 29th October, 1976, respondent 3 filed application before the learned Rent Controller, for securing eviction of the petitioner from the tenant room on the ground that he had defaulted, in making payment of rent for the following period:‑

(a) from the 1st February, 1973 to the 31st May, 1973; and (b) from the 1st August, 1974 to the 30th September, 1976. Respondent 3 later on did not press the alleged default for the first mentioned period.

2. The petitioner was suffering from minority when the ejectment application was moved by respondent

3. The petitioner's mother, with whom the petitioner was living, was made guardian‑ad‑litem for defending the interests of the petitioner. As she claims she paid rent due to respondent 3's father. She tendered him rent through money order but he refused to receive it. She started depositing rent in his name in Court. For the entire period of the alleged default the rent was deposited by her in the name of respondent 3's father. According to her it was respondent 3's father who had been collecting rent for his own share as well as on behalf of respondent

3. This rent is still in deposit in the Court.

3. The learned Rent Controller passed order for making fresh deposit of all the arrears of rent by the petitioner. This was complied with and there has been no default in matter of depositing the rent due. The learned Rent Controller and the learned Additional District Judge did not accept the payment of rent to respondent 3's father as equivalent to the payment to respondent 3 and, therefore, on the basis of technical default in payment .of rent to respondent 3 made the ejectment order.

4. The learned counsel for the petitioner submits that as the property purchased by respondent 3 and his father was quite big and it was not ascertainable with precision by the petitioner's mother who was an I illiterate lady, as to whom to be paid rent she took it that since respondent 3's father was collecting rent, the payment of the rent was to be made to him and, therefore, she deposited rent in his name. The learned counsel for respondent 3 concedes that if the payment of rent made in the name of respondent 3's father were to be accepted as payment of rent dup there would be no default on the part of the petitioner. In the circumstances when the petitioner, who was minor, and his mother, who was a rustic illiterate lady, could not have been treated "to be defaulter and made to pay a penalty thereof. The learned Rent Controller and the learned Additional District Judge ought to have exercised their discretion in favour of the petitioner. The petitioner's bona fides were never questionable. He was not at all negligent in matter of payment of rent. The rent deposited in the name of respondent 3's father could have very well been ordered to be paid to respondent

3. The manner of exercising discretion by the learned Rent Controller and the learned Additional District Judge is to say the least unreasonable, arbitrary and capricious. Therefore, the legitimacy I of the impugned orders cannot be upheld. The petition is accepted with costs and the impugned orders are declared to have been passed without lawful authority and to be of no legal effect. H.B.T Petition accepted.