2009 PLP 1001 (YLR)

MAULVI ANWARUL HAQ, J.

On 1-9-2004 the respondent filed an application for the ejectment of the appellant from a building, described in detail in the application. It was stated that the property was let out under agreement dated 16-6-1996. Thereafter, an agreement was executed on 11-8-1997 for three years. The rate of rent was fixed at Rs.4,000 per month and it was undertaken that the statutory increase shall be paid by the appellant to the respondent. The ejectment was sought on the ground of default inasmuch as despite agreement and then demand the statutory increase in the rent was not paid. Impairment to the value and the utility of the building was also alleged. The appellant filed a written reply. He admitted the relationship of landlord and tenant between the parties, 3 agreement and its terms as stated in the ejectment petition. The other allegations were denied. Issues were framed. Evidence of the parties was recorded. The learned Rent Controller allowed the application and passed an ejectment order on 19-4-2007. I may note here that it was found that only the allegation of default as made in the application has been proved. A first appeal filed by the appellant has been dismissed by a learned Additional District Judge, Jhelum on 15-9-2008.

2. Learned counsel contends that there is no plea or evidence of an express demand vis-a-vis the statutory increase and as such the Rent Controller has acted against law while passing the ejectment order and so is the case with the learned appellate Authority while affirming the same. He relies on the case of Syed Illyas Ali Abbasi v. Mst. Allah Rakhi through Attorney (2001 SCMR 31). According to him, the default was not wilful.

3. The learned counsel has appended the certified copies of the entire record with this S.A.O. I have examined the same with his assistance. The admitted tenancy agreement between the parties is Exh.A.3. It is dated 11-8-1997. The rate of rent fixed was Rs. 4,000 per month and it was specifically mentioned that after the expiry of three years period, the rent will be enhanced in accordance with law. Section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959, lays down in an unequivocal term that the rent shall stand automatically enhanced by 25% upon expiry of three years of a tenancy agreement pertaining the non-residential building and the arrears becoming due as a result of the said statutory increase be deemed to be rent due within the meaning of section 13(2)(1) of the said Ordinance. This being so, the rent due w.e.f. September, 2000 was Rs. 5,000 per month and w.e.f. September, 2003 was Rs. 6,025 per month. It is an admitted position that the appellant had been tendering rent at the rate of Rs.4,400 and then at the rate of Rs. 5,000 per month.

4. Coming to the said contention of the learned counsel, the judgment in the case of Syed Illyas Ali Abbasi was pronounced on 21-10-1998. However, this was followed by a judgment given by an equal number of Honourable Judges in the case of Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCMR 207) (dated 22-9-1999). In this later case, their lordships have held that service of a notice under section 5-A of the said Ordinance by a landlord to a tenant for statutory increase of rent is .not a condition precedent to invoke the jurisdiction of the Rent Controller and that under the said provision the 25% increase in rent becomes due on the expiry of three years and is deemed to be a rent due. As commanded by the Honourable Supreme Court, this Court is to follow this latter judgment on the same subject. This being so, the plea that a notice had to be served demanding the statutory increase is not available to the appellant.

5. Coming to the said other contention of the learned counsel, I find that the default in payment of the statutory increase is by all means wilful. I have already referred to in some detail the agreement between the parties. Both the parties were fully aware that the rent has to be increased in accordance with the said law after expiry of three years. However, the appellant failed to do so. Not only this but prior to filing of the application a notice Exh.A.4 was served upon the appellant stating that he has committed a default by not paying the rent with the said statutory increase. Apart from the above, the ejectment petition was filed on 1-8-2004. The written reply was filed on 30-9-2003. The appellant was duly confronted and he has stated that he had examined the ejectment petition. However, he made no attempt to pay the rent that had become due because of statutory increase. In view of the above circumstances established on record, no case stands made out for interference with the impugned order. The S.A.O. accordingly is dismissed in limine. The learned counsel states that the impugned order has not been executed so far. If this is so, the appellant' is directed to deliver vacant possession of the building in question to the respondent-landlord on or before 31-1-2009. In case he fails to do so, the respondent will be at liberty to execute the ejectment order in accordance with law and in such an eventuality the learned Rent Controller shall employ all process including police aid for execution of the order. H.B.T./M-22/L Appeal dismissed.