P L D 1976 Karachi 1156 (PLP)

Tahir Husain Jafri for Appellants. Abdul Hamid Khan for Respondent No.

1. Nafisuddin for Respondent No.

2. Date of hearing : 10th August 1976. The relationship of landlord and tenant was established by a judicial pronouncement of the High Court after a long and arduous litigation of 11 years between the parties. The respondent-landlady bad claimed the appellant to be a licensee for a room in Bungalow No. 170, Garden West which bungalow her predecessor-in-interest, had, in turn, got rented from Ibrahimji Hakimji & Sons, the original owners of the premises. That litigation about the question of the appellants being licence was resolved in favour of the appellant-tenant by the High Court through a judgment delivered on 28th August, 1970, and the appellants were finally held to be the tenants of the premises in dispute. Soon after, on 17th October, 1970 the appellants tendered Rs. 2,240 total arrears of rent for about 10 years at -the rate of Rs.20 per month through a bank draft. This amount ass .returned by the Advocate of the respondents through a letter which appears .as Exh. O/3 on the trial Court's file. This is a dateless letter in which the learned counsel for the respondents had taken the stand that the petition for special leave to appeal had been filed before the Supreme Court, therefore, pending disposal of that petition the amount of rent was being returned. Admittedly, thereafter, there was no further tender of rent by the appellant tenant although they did not hear anything about the fate of the petition for special leave to appeal. On 14th April, 1971 the respondents brought an ejectment application on the twin ground of personal bona fide requirement and default. The learned Rent Controller found the issue with respect to personal bona fide requirement against the landlady but found that the tenant-appellant was a defaulter and consequently his ejectment was ordered. This finding of default was confirmed by the first appellate Court, hence the present appeal. The main contention raised by the learned counsel for the appellant is chat this is a case which eminently required the Rent Controller to exercise the discretion conferred upon him by section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) in favour of the tenant. In order to assert the point that the Rent Controller .is not bound in all cases to order ejectment the learned counsel has very laboriously taken me through the provisions of section 13(2), clauses (i) to (iv) of the Ordinance which declares that when the Rent Controller is satisfied that the tenant has not paid or tendered rent due from him he 'may make an order directing the tenant to put the landlord in possession of the building . . . .' The learned counsel has specifically pointed out the use, by the Legislature, of the word `shall', in the later part of the section where the Rent Controller is bound to reject the application if he is not so satisfied. This the learned counsel contends is to be viewed in contradistinction with the use of the word 'may' used in the portion quoted above. The proposition is correctly put forward and the learned counsel is duly supported in this view by a judgment of this Court reported as Sajjad Ali Khan v. Peer Bux G. Maher (P L D 1972 Kar. 220), and an earlier judgment of the West Pakistan High Court reported . as Muhammad Shafi v. Iqbal Ahmad (P L D 1965 Lah. 23). But the question is what is the type of discretion that is conferred by the Ordinance upon the Rent Controller. It is not an absolute or unbridled discretion. The Rent Controller cannot in all cases of default in the payment of rent declare that because he enjoys discretion whether to order or not to order the ejectment of the tenant and therefore he would exercise this discretion in favour of the tenant. This the Rent Controller cannot do. His is a judicial discretion, in whose exercise all the relevant factors are to be carefully taken into consideration and good grounds should exist for its exercise. It has not to be arbitrary, capricious or based on personal likes or dislikes ; it has to be fair and in accordance with the common sense, of justice and equity. It should always be borne in mind that in case of default in the payment of rent the order of ejectment should normally follow, unless circumstance exist for exercise of discretion otherwise. In Abdul Aziz v. West Pakistan Publishing Company (P L D 1965 Lah. 82 ) the continued anxiety of the tenant to pay up the rent coupled with uncalled for and incorrect claims about the quantum of rent was considered to be a good ground for exercising discretion in favour of the tenant. Similar view was taken in Masood Hussain's case (P L D 1965 Lah. 11). In Ghulam Qadir v. Tajammul Hussain (P L D 1964 Lah. 329 ) again a demand of double the amount due as rent was considered to be a fair ground for exercise of discretion in favour of the tenant. On the other hand in Faqir Mohammad's case (P L D 1964 Lah. 686) default in payment of rent coupled with denial of title of the landlord was found to be a circum stance in which discretion could not be exercised in favour of the tenant. In Muhammad Alimullah v. Ziaul Islam (P L D 1973 Kar. 56) it was held that simply because a tenant was allowed to pay rent 'at intervals of time' it could not entitle him to invoke discretion under section

13. And it was also observed that the Ordinance imposes an obligation on the tenant to pay rent as it falls due he cannot be allowed to escape his obligation by invoking discretion. In Riaz Ali v. Shabir Ahmad (1971 S C M R 598), in the presence of a clear stipulation in the tenancy agreement that rent for each month will be paid in the next succeeding month, and in spite of acceptance of delayed payment of rent by the landlord on a previous occasion, the Supreme Court held that discretion to condone delay of ten months in the payment of rent could not be exercised. Keeping in view this legal position, it had to be seen if factors exist in ,the present case which could warrant the exercise of discretion in favour of the tenant. The first, point pressed into service in this regard is that the alleged shifting stand taken by the respondent. Initially, it is contended, the landlady branded the appellant as a mere licensee ; and having failed in the effort she has now come forward with a claim of ejectment on the grounds of personal bona fide requirement and of default in payment of rent. The earlier stand of the respondent could not lure the appellants to become complacent in the discharge of their obligation as a tenant to pay or tender rent. They had bitterly fought the long battle over the status as tenant of the disputed premises and therefore, when a judicial pronouncement was made in their favour there could not be left any ground for them to feel that they were not as strictly bound to pay the rent as a tenant is. In actual fact they had no doubt about their such obligations when they tendered all arrears of rent on 17th October, 1970, though that was not accepted by the landlady for the reasons already described. In these circumstances it is not open to the tenant-appellants to contend that because of the earlier stand of the landlady they had fallen into an erroneous impression as to their obligation to pay rent. If default was due to negligence it was culpable negligence for which the appellants have to suffer. In the second ground taken by the learned counsel for the appellant it is contended that having tendered the rent once, which was duly refused by the landlord without any lawful excuse, the landlord was precluded from treating the tenant as a defaulter. In putting forward this proposition the learned counsel has relied upon Ram Krishna Prashad v. Mohammad Yahya (A I R 1960 All. 482) and has contended that any technical default in the payment of rent should have been condoned in the exercise of discretion allowed to the Rent Controller by section 13 of the Ordinance. This view from the Indian jurisdiction is not tenable and is not followed by Courts in Pakistan. Section 13(2) (1) (i) og the Ordinance declares that if the Controller is satisfied that rent has not been `paid or tendered due by' the tenant the Controller may order his ejectment. And a rent becomes due after the expiry of each month, so the payment or tender of rent has to be made for each successive month. A solitary refusal to accept the rent on one occasion does not absolve the tenant of his liability to pay the same for each successive month. This is the view taken by their Lordships of the Supreme Court in Yousuf Shah v. Ghulam Jan Khan (1975SCMR464). The observations of their Lordships in this regard are : "It is well settled that the mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve the tenant of his continued liability to pay or tender the same for each successive month." In the present case there .is no doubt that the contention of the learned counsel for the respondent that the tenant was liable to pay the rent from May, 1966 when the Additional District Judge pronounced the judgment against them, is not well founded, but after the final pronouncement by the High Court in August, 1970 there was no reason for the tenant-appellant not to pay or tender rent for each of the month as and when it fell due. Following the observations made in Alimullah's case, cited above, I would hold that the appellants could not escape from their obligation to pay the rent by trying to invoke the discretion under section 13 of the Ordinance. In view of the above discussion I find no merit in the appeal and dismiss it with costs. The tenant-appellant shall, however, place the landlady in possession within a period of four months from today. S. Q. Appeal dismissed.