2001 SCMR 31 (PLP)

CH. MUHAMMAD ARIF, J.

Through this appeal by leave of the Court challenge has been made to the judgment of a learned Judge in Chambers of, the Lahore High Court, Lahore whereby appellant's S.A.O. No. 20 of 199.7 was dismissed with the result that the judgment of the learned Additional District Judge dated 19-11-1996 was upheld and that of the Rent Controller dated 27-2-1996, directing appellant's ejectment from the disputed shop premises bearing No.SE-3R-77, Shalimar Link Road, Mujahidabad in Ramgarh, Lahore was maintained.

2. Respondent-Allah Rakhi brought the ejectment proceedings against the appellant under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, on the ground that the appellant had not paid the rental for the disputed shop from 15-5-1991 and that too at the increased rate as envisaged by section 5-A of the Ordinance. The appellant controverted the application with the plea that the rent from 15-5-1991 was sent to the respondent/landlady and on her refusal to accept the same, the rental was deposited in the office of the Rent Controller.

3. The learned Rent Controller passed an order under section 13(6) of the Ordinance requiring the appellant to deposit the arrears and future rent in accord with the increased rent under section 5-A of the Ordinance. This order was complied with by the appellant. After trial of the case the learned Rent Controller directed the ejectment of the appellant on 27-2-1996. Remaining unsuccessful at the level of the Appellate Authority under the Ordinance as also the High Court in S.A.O. No.20 of 1997, the appellant was granted leave by this Court vide order dated 29-12-1997, paras. 3 and 4 whereof read thus: "

3. Learned counsel for the petitioner contends that section 5-A of the Ordinance does not envisage automatic increase in rent at the rate of 25 % unless it is preceded with a notice of demand which, in the instant case was lacking. In support of his contention reliance is placed on Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti (1996 SCMR 1042) and National Development Finance Corporation v. Naseem-ud-Din (PLD 1997 SC 564). In the latter case, it was inter alia observed at page 567 in the following terms:-- 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 to 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. "

4. Leave to appeal is granted to consider whether in the facts and the circumstances of the case, the Court below should have exercised the discretion in favour of the petitioner and whether the petitioner had become defaulter in the payment of rent in consequence of statutory increase at the rate of 25 % without a notice of demand from the respondent/landlord. The interim order granted on 13-8-1997 shall continue till disposal of the appeal which shall be listed for hearing within six months."

4. Hence this appeal

5. Mr. Mirza Hafeez-ur-Rehman, learned Advocate Supreme Court appearing in support of this appeal has reiterated the plea referred to in para. 3 of the Leave Grant Order--above to the effect that section 5-A of the Ordinance does not envisage automatic increase in rental at the rate of 25 % and a demand for such increase is to be specifically made by the landlady, which fact is manifestly lacking here. He has also relied upon Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti (1996 SCMR 1042) and National Development Finance Corporation v. Naseem-ud-Din (PLD 1997 SC 564) in support of the case of the appellant and submitted that the learned author Judge of the impugned judgment dated 18-6-1997 has himself changed his opinion expressed therein, in Muhammad Tariq v. Sardar Khan and 9 others (1998 CLC 1054) and Javed Iqbal v. S.M. Khuram Wasti, Advocate (2000. CLC 126).

6. Mr. Arshad Mahmood, Attorney of respondent--Mst. Allah Rakhi has entered appearance to support the impugned judgment dated 18-6-1997 with the submission that all the orders of the Courts below are in favour of the landlady and, therefore, they are liable to be upheld by this Court as well.

7. We have carefully gone through the available material with the help of the learned counsel for the appellant. The excerpt from Haji Muhammad Ibrahim (supra) has resolved the controversy in relation to the method of incurring the liability of ejectment from a tenanted premises by a tenant after the amendment of the Ordinance with effect from 1-7-1989 enhancing the rent to 'the extent of 25%. The learned Judge in Chambers had himself noticed the resolution of this question by this Court in Muhammad Tariq? (supra) and changed his opinion as heretofore. The same is true of the opinion expressed by the learned Judge in Chambers in Javed Iqbal (supra).

8. In this view of the matter, we are inclined to accept this appeal, set C aside the impugned judgment dated 18-6-1997 and dismiss the ejectment application with no order as to costs: Order accordingly. Q.M.H./M.A.K./I-8/S ???????????????????????????????????????????????????????????????????????? Appeal allowed.