P L D 1972 Karachi 220 (PLP)

disputes."

6. The learned counsel for the appellants now argued before pe' me only one point which was that the findings of botn the Courts below that the respondent was not a wilful defaulter in payment of rent were illegal because section 13, subsection (2). clause (i) of H. the Ordinance does not contemplate that either there should be wilful default or not by the tenant in payment of rent. According to counsel the question of wilful default was entirely irrelevant so far as the ejectment of a tenant was concerned under section 13, subsection (2) of clause (i) of the Ordinance. In order to appreciate this contention it will be useful to reproduce the provisions of section 13, subsection (2), clause (i) which are as follows :‑ "13(2).‑A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied‑(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land. "Within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement (within 60 days from the period) for which the rent is payable or . . . . ... . . . . . . . the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the applications." It will be noticed from the above provisions that it does not speak of default having been made in payment of rent as these words are not used but what is stated therein is that when a,y tenant has not paid or tendered rent due by him within the specified time then the Rent Controller becomes vested with jurisdiction to make or not to make an order directing the tenant to put the landlord in possession of the building or the rented land and if the Controller is not so satisfied he shall make an order rejecting the application so that what the Rent Controller has to see is whether the tenant has not paid or tendered rent due by him in respect of the building or rented land within the time specified in this provision or not. But it can well be argued that even if the Rent Controller finds that the tenant has not paid or tendered rent due by him in respect of the building or rented land within the specified time still he has a discretion vested in him whether he will make an order directing the tenant to put the landlord in possession of the building or rented land or not. That this is the intention of this clause in the above provision is also held in the case of Feroze Din Khan v. Mohammad Amin (P L D 1967 Lah. 966) wherein it has been held as under :‑ "Now reverting to the contention raised by the learned? counsel for the appellant the old section 13(2)(1) of the Ordinance prior to its amendment as in force at the relevant time, stood as under :‑ 'A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the "tenant a reasonable opportunity of showing cause against the application, is satisfied ‑ (i) That the tenant has not. paid or tendered rent due by him in respect of the building or rented land, within 15 days after the expiry of the time fixed in the agreement of the tenancy with his landlord, or in the absence of any such agree ment, by the last day of the month next following that for which the rent is payable, or . . . . . . . . . . . . . . . . the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land if the Controller is not so satisfied he shall make an order rejecting the application'." Even if all the conditions laid down in this subsection are fulfilled, it is in no way obligatory for the Controller to make an order directing the tenant to put the landlord in possession of the premises. I he order of ejectment cannot be passed as a matter of course only. In case the Controller is satisfied that the tenant has not paid or tendered the rent due from within the period of grace allowed by law, he 'may' make an order directing the tenant to put the landlord in possession of the building or rented land. In case, however, he is not so satified, he 'shall' make an order rejecting the application. It is obvious that in this subsection the word 'may' is used with a purpose to confer powers on the Controller to order the ejectment of the tenant in a fit case. It does not have the force of the words 'shall' or 'must' as suggested by the counsel for the appellant. In this connection it is helpful to reproduce here the observations by Cotton, L. J. in re: Baker Nichols v. Baker (44 Ch. D 262) quoted with approval in Haji Ghulam Hussain and another v. Mohammad Rafique and another (P L D 1965 Kar. 468) 'May never can mean 'must' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what, cases, where a judge has a power given him by the word 'may', it becomes his duty to exercise that power.' 'In this connection a learned Single Judge of this Court in Sh. Ghulam Qadir v. Tajamal Hussain (P L D 1964 Lah. 329) in dealing with this very provision of law held as under 'The word 'may' in the context in which it has been used and the scheme of the statute and other relevant consideration, may be Interpreted as meaning 'must' or 'shall' but this need not necessarily be so in each and every case. The word 'may' in the context of subsection (2) of section 13 of the West Pakistan Urban Rant Restriction Ordinance, 1959 cannot be said to have been used in the sense of 'shall' or 'must'. The word 'may' in subsection (2) of section 13 of the Ordinance has been used deliberately, leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the case falls under clause (i) of subsection (2) of section 13 of the Ordinance, or if circumstances of the case are such that it is necessary to the interest ofi justice not to order so. Normally in case of default an order, of ejectment is to follow, and the exercise of discretion must be based on good grounds on careful consideration of all the relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be judicial. As a discretion vest in the Controller, it can also be exercised by the Appellate Authority.

7. The only question thus to be seen is whether the discre, don exercised by the Rent Controller in not ordering ejectment of the respondent rests on good grounds or not ? The Rent Con troller and the First Appellate Court have both observed in their findings that as the appellant was in the habit of receiving arrears of rent in lump sum periodically, therefore, they have hold that It would not be expedient to order the ejectment of the respondent. Even on these findings which are findings of fact and are to be taken as correct the learned counsel for the appellant has cited the case of Subhanali alias Sobho v. Mst. Satbai (1) wherein It is observed that default in payment of rent as contemplated by section 13(2)(1) cannot be wiped out or erased nor penalty incurred be stayed off by subsequent payment. Seeing his case on this reported case the counsel for the appellant has argued that in any case the default in payment of rent has been made by the respondent, therefore, Rent Controller and the First Appellate Court should not have taken the subsequent payment of arrears of rent in lump sum .by the respondent as having the effect of wiping out the penalty incurred by section 13(2)(1) of the Ordi nance. But it will be appreciated that this argument is faiicious because the Rent Controller can only exercise his discretion in favour of the tenant in not ordering his ejectment only when default on his part in payment of rent is proved. Therefore, this reported case is of no avail to the appellant.

8. Thus we revert to the question whether discretion ha been properly exercised in this case or not. This discretion ha been exercised in favour of the respondent tenant because th appellant landlord used to accept arrears of rent from th respondent in lump sum periodically. I consider that this is a good ground for exercising the discretion in favour of the tenant. As such I am of the opinion that the discretion in favour of the respondent tenant has been exercised judicially.

9. For the foraging reasons I see no merit in his Second Appeal which is accordingly dismissed. Appeal dismissed.