P L D 1364 (W (PLP)

(2) Nothing in this section shall apply to the recovery of any rent which became due before the 1st January 1950."

23. It is contended that the last part of clause (a) of sub section (1) of section 6 makes it clear that this section is to apply only to monthly tenancies, as this clause permits the receiving in advance of an amount not exceeding one month's rent. It will be seen that section 6 is in the nature of a prohibition, directing that the landlord shall not receive anything in excess of fair rent. The last part of clause (a) of subsection (1) is merely permissive in nature, and to that extent constitutes an exception to the main provisions of the section. Even if it be assumed, for the sake of argument, that the permissive clause relates only to monthly tenancies, no irresistible inference arises that for that reason the Ordinance must be deemed to be intended to apply only to monthly tenancies, to the complete exclusion of yearly tenancies. Cases can be conceived where some provisions may be necessary for the purpose of regulating monthly tenancies, which provisions may not be required in the case of yearly tenancies. On a strict interpretation, the permissive part of clause (a) of subsection (1) of section 6 may be held to apply only to monthly tenancies, with the result that in the case of yearly tenancies the landlord is not per mitted to receive any rent in advance. However, even in the case of yearly tenancies, the monthly rent can easily be worked out and, therefore, to that extent it may perhaps be feasible to operate even the permissive clause in the case of yearly tenancies as well. The result, therefore, is that I am not persuaded that section 6 of the Ordinance is unworkable in the case of yearly tenancies.

24. The learned counsel next relied upon certain provisions embodied in section 13 of the Ordinance, the relevant portions of which are reproduced below:‑ "

13. Eviction of tenant.‑(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (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 that‑ (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 sixty days from the period for which rent is payable ; or (ii) the tenant has, without the written consent of the landlord‑ (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or (b) used the building or rented land for a purpose other than that for which it was leased; or (iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or (iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighbour hood ; or (v) where the building is situated in a place other than a hill‑station, the tenant bas ceased to occupy the building for a continuous period of four months without reasonable cause ; or (vi) the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for the said construction from the Improvement Trust or the Municipal Corporation, Municipality, Municipal Committee, Town Committee or Notified Area Committee, of the area where such building is situated, 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 application: Provided that the Controller may give the tenant the reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate. Explanation.‑For the purpose of clause (t)‑ (i) where the water charges or electricity charges or both are payable by the tenant to the landlord ‑such charges shall be deemed to be rent ; (ii) rent remitted by money‑order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered ; (3) . . . . . . . . . . . (4) . . . . . . . . . . . (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller, shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the sane be paid to the landlord, subject to adjustment of the approximate amount deposited by tenant. (7) Where the Controller is satisfied that any application made by a landlord for eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding ten times the monthly rapt be paid by such landlord to the tenant."

25. Clause (i) of subsection (2) of section 13 as reproduced above was introduced by an amending ordinance published in the Gazette of West Pakistan Extraordinary on the 30th of November 1960. The learned counsel for the appellant, however appears to rely on this clause as it was originally enacted in the Ordinance promulgated on the 23rd of February 1959. This clause then stood as follows :‑‑ "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 such agreement by the last date of the month next following that for which the rent is Payable."

26. It was argued that the last part of this clause, as it originally stood, clearly indicated that it was to apply in the ease of monthly tenancies only. This argument, however, overlooks the first part of this clause which deals with tenancies which contain an agreement regarding the time fixed for the payment of rent. Even if, therefore, the second part of this clause applies to monthly tenancies, yearly tenancies would seem to be included in the first part of the clause, and the clause would thus be clearly workable in those cases. After the amendment of this clause, how ever, no doubt is left whatsoever that both the parts of this clause can be made to work in the case of monthly as well as yearly tenancies, for the reason that the words "by the last date of the month next following that" appearing in the last part of the clause have now been replaced by the words "within sixty days from the period". It seems to me, therefore that both before and after the amendment, clause (i) of subsection (2) of section 13 was workable in the case of monthly as well as yearly tenancies.

27. Reference was then made by the learned counsel for the appellant to clause (v) and proviso to clause (vi) of subsection (2) of section 13, and it was pointed out that the period mentioned in these two provisions of law is four months, which would show that only monthly tenancies were in contemplation. I do not see the basis for any such inference in the language used in these two clauses. Clause (v) lays down that the Controller may make an order directing the tenant to put the landlord in possession of the building if the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, where the building is situated in a place other than a hill‑station. In other words the tenant has to be visited with the penalty of eviction if he fails to occupy the building for a continuous period of four Months without reasonable cause, but this condition is not to operate in the case of buildings situated at hill‑stations. The clause is based on an appreciation of realities, namely, that at hill‑stations the building may remain vacant for a continuous period of four months during the winter season. I do not see how this clause can be interpreted to mean that only monthly tenancies are included in its purview. It is clear that even in the case of yearly tenancies a requirement can be laid down that non‑occupation of the building for a continuous period of four months may render a tenant liable to ejectment. This clause, on the other hand, appears to indicate that the ordinance is intended to apply to tenancies regarding buildings situated in hill‑stations, which is the case in the present dispute.

28. The proviso to clause (vi) of subsection (2) of section 13 empowers the Controller to give the tenant a reasonable time for putting the landlord in possession of the building or rented land, but it is laid down that such time is not to exceed four months in the aggregate. Once again I am unable to see how this proviso is rendered unworkable in the case of yearly tenancies. Once a decision, is taken that the tenant is to be ejected, then the period during which such ejectment is to take place has; in fact; no reference to the nature of the tenancy which had existed between the landlord and the tenant. All that the Legislature has done by the proviso in question is that a reasonable time shall be given to the tenant for vacating the premises and, in its wisdom, the Legislature has come to the conclusion that an aggregate period not exceeding four months shall be reasonable. This aggregate period of four months can easily be applied to the yearly as well as monthly tenancies and no question of the proviso being unworkable can arise simply on account of the fact that the tenancy in question was a yearly tenancy.

29. The next provision on which reliance is placed in the present context is subsection (6) of section

13. It was contended that with regard to the future rent due from the tenant this clause clearly contemplates monthly rent which is to be paid before the 5th day of each month, and, therefore, it is clear that this condi tion cannot be worked in the case of yearly tenancies. It is correct that this clause deals with two aspects, namely, firstly with the rent which has already become due from the tenant and secondly, with the Payment of future rent which is to fall due during the pendency of the proceedings. It will be observed that there can be no difficulty with regard to the deposit of the past rent which has already become due from the tenant. All that the Rent Controller has to do in this regard is to fix a date by which the arrears are to be deposited by the tenant. As regards the future rent the subsection contains a statutory provision that the monthly rent due is to be deposited before the 5th day of each month, but there is no such direction with regard to yearly rent. It only means, therefore, that this statutory condition regarding the deposit of the monthly rent before the 5th day of each month shall not apply in a cas5 to which the rent falls due annually This is, however, not to say that the provisions of subsection (6) are rendered inoperative and ineffective in the case of yearly tenancies, as in such cases the future rent will obviously have to be paid in accordance with the terms of the tenancy.

30. Finally, Sheikh Abdul Haq referred to subsection (7) of section 13 and pointed out that this subsection contemplates the payment of compensation to a tenant, in case of a frivolous or vexatious application by the landlord, of an amount not exceeding ten times the monthly rent, and, therefore, this compensation cannot be worked out in the case of a yearly tenancy. I do not see the difficulty envisaged by the learned counsel for the appellant. All that has to be done for the purpose of this subsection is to work out the rent which would be payable for a period of ten months, and surely that can easily be done even where the tenancy speaks of an annual rent. It would be just a matter of arithmatical calculations.

31. A detailed examination of the provisions of the Ordinance, which were described by the learned counsel for the appellant as unworkable in the case of yearly tenancies, clearly shows that this is not so. At the most some of the pro visions may not be applicable in the case of yearly tenancies, but the main purpose of the Ordinance and all these provisions in particular is not defeated simply for that reason. The matter, however, does not rest there. I have already pointed out that considering the definitions given in the Ordinance and the scope of its application as indicated in subsection (2) of section 1 o the Ordinance, it is clear that the yearly tenancies are not, excluded from its purview. Subsection (1) of section 13 of the Ordinance further makes it clear that a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termina tion of the tenancy, except in accordance with the provisions of this section. This subsection, therefore, contains a clear prohibition against the enforcement of decrees of ejectment passed by civil Courts in respect of buildings or rented lands situated in the urban areas of West Pakistan, to which the Ordinance applies. I have already held that the building in the instant case is a building falling within the definition of that term as given in the Ordinance. The result, therefore, appears to me to be that whatever the nature of the tenancy existing between the parties, the only means open to the landlord to eject the tenant is by an application to the Rent Controller under the terms of the Ordinance, and not otherwise. I, therefore, find no substance in the contention that yearly tenancies fall outside the purview of the Ordinance.

32. The next contention raised by the learned counsel for the appellant is that the alleged default in the payment of rent as well as the alleged damage to the dance floor were caused before the promulgation of the present Ordinance on the 23rd of February 1959 and, therefore, they cannot form the subject‑matter of any proceedings under this Ordinance for the reason that it has no retrospective effect except in relation to the matters mentioned in section 8 thereof, namely, the adjustment of excess rent previously paid by the tenant. It was further submitted that at the most the proceedings under this Ordinance could relate to matters which had taken place on or after the 15th of January 1958, as by virtue of subsection (4) of section 1 of the Ordinance, it has been made effective from the date of the expiry of the West Pakistan Urban Rent Restriction Act, 1957, but even then the acts alleged in this case would not be covered as they took place before the year 1958. It was further submitted that the Act of 1957 being a purely temporary law, all rights acquired and liabilities incurred under that Act could not be enforced after its expiry; and all proceedings initiated under it had to abate on the 15th : of January 1958, unless they were saved specifically by some legal device ; and, as in the present case, the landlord had withdrawn his earlier application, the saving clause embodied in sections 21 and 22 of the Ordinance did not come to his rescue.

33. On behalf of the respondents the reply given by Mr. Ismail Bhatti is that the Ordinance is primarily a procedural law and as such it will operate retrospectively in so far as it provides a new remedy for the enforcement of existing rights. He has contended that on account of commission of default by the tenant in the payment of rent, and on account of damage caused by him to the property, a right had accrued to the landlord to seek the ejectment of the tenant, and the Ordinance provides a remedy or a procedure for the enforcement of that right and, therefore, the Ordinance would apply even though the right had accrued before the promulgation of the Ordinance. Mr. Bhatti has further pointed out that there is no question here of the revival of proceedings taken under the previous Act, nor is it a question of enforcing rights and liabilities in‑urred under that Act ; the landlord's case is simply one of enforcing a right which hall accrued to him under the terms of the tenancy and the Ordinance gives him a forum and a procedure whereby to enforce that right.

34. It seems to me that there is substance in the sub missions made by Mr. Bhatti on behalf of the respondents. The Ordinance is, of course, prospective in respect of new rights which it may create in favour of the landlords or tenants, unless it indicates otherwise; but the procedure provided by it can certainly be invoked for the enforcement of rights which had already accrued to the parties. In that sense, therefore, the Ordinance may be regarded as retrospective and proceedings initiated under it in respect of defaults committed before its enforcement. In the view that I take I am fortified by Division Bench judgment of this Court in Salamat Ali Jafri v. The Province of West Pakistan and others (P L D 1956 Lah. 548). In that case, while dealing with the question whether a petitioner could invoke the writ jurisdiction of the High Court under Article 170 of the 1956 Constitution in respect of a right which had accrued to him before the enforcement of the Constitution, their Lordships observed as follows:‑ "In determining whether a statute operates retrospectively the principle to be kept in view is that where a statute creates a new right, it operates prospectively; where it provides a new remedy for an existing right, its operation is retrospective. Section 223‑A Government of India Act merely provides a new remedy for existing right; it may, therefore, have a retrospective effect' Article 170 of the Constitution of Pakistan, which contains a provision corresponding to section 223‑A, is more extensive in scope. It gives power to High Courts to issue "directions, orders or writs . . . . . for the enforcement of any of the rights conferred by Part II and for any other purpose." The rights in Part II are fundamental rights, and to that extent Article 170 cannot be retrospective, but for other purposes envisaged by Article 170, only a new remedy, as in section 223‑A, has been devised, and, therefore, it is retrospective to that extent."

35. Sheikh Abdul Haq referred to certain authorities, namely, The State of Uttar Pradesh v. Seth Jagamander and others (AIR 1954 SC 683) and Gopi Chand v. Delhi Administration (A I R 1959 S C 609) as well as to observations on page 377 of Statute Law by Craies in support of the proposition that all proceedings initiated under a temporary law automatically come to an end with its expiry ; but it is act at all necessary to refer to these authorities at any length for the reason that I am not basing my decision on this point on the continuance of any proceedings initiated) under the temporary Act.

36. We may now turn to the contention raised on the merits of the case. It has already been stated that the ejectment of the appellant was sought by the landlord on two grounds namely, default in the payment of rent and the commission of acts which were likely to impair materially the value and utility of the property. I shall take up the second ground first.

37. It was alleged by the landlord that the tenant had materially damaged the teakwood steel‑sprung dance floor of the Dance Hall by allowing it to be used for skating with steel roller skates and that he had unauthorisedly, without the landlord's permission, built four plywood cabins in the main Dance Hall for residential purposes and had also interfered with electric service lines to carry electricity to these cabins by means of loose electric wires without the permission of the Electricity Department. Both the Courts below have held these allegations of the landlord established on the record. In coming to these conclusions they have considered not only the evidence adduced by the landlord, but also the admissions made by the tenant and his partner Ikramul Haq. It was contended by Mr. Ismail Bhatti, the learned counsel for the respondents, that these are findings of fact and cannot be challenged in second appeal. It was, however, submitted by Mr. Abdul Haq that the two Courts below had acted on conjectures in coming to their conclusions and that the finding of the learned District Judge was, in any case, merely to the effect that acts committed by the tenant were "likely to impair the value or utility of the building", but there was no finding that the acts were likely to impair materially the value or utility of the building.

38. I consider that the objection raised by the learned counsel for the respondents is well founded. The question whether certain acts have been committed by the tenant or not and the further question whether these acts are likely to impair materially the value or utility of the building are clearly questions of fact which cannot ordinarily be permitted to be agitated in second appeal. There is no force in the contention put forward by Mr. Abdul Haq that the learned District Judge's finding does, not amount to saying that the acts were likely to impair materially the value or utility of the rented building, for although the learned District Judge has not used the word "materially" in the concluding part of this finding on this point as contained in paragraph 14 of his judgment, yet all through the learned District Judge is conscious of the fact that what the law requires is that the acts should be such as are "likely to impair materially the value or utility of the rented building". This is clear from a perusal of paragraph 12 of his judgment where he has dealt with the legal provisions bearing on the subject, as contained in clause (W) of subsection (2) of section 13 of the Ordinance. It is clear to me, therefore, that the finding of the learned District Judge on this point has to be read with reference to the law as expounded by him in paragraph 12 of his judgment and, therefore, it amounts to a finding of fact that the acts committed by the tenant were such as fell within the scope of clause (lit) of subsection (2) of section 13 of the Ordinance and rendered the tenant liable to ejectment.

39. However, in view of the very elaborate argument addressed on the point by Mr. Abdul Haq, I have satisfied myself that the evidence on the record does support the findings recorded lay the learned Rent Controller and the learned District Judge as Appellate Authority. There are clear admissions by the present appellant Shujauddin Qureshi and his partner Sheikh Ikramul Haq, while appearing as witnesses, during the proceedings, that skating was allowed by them on the steel‑sprung dance floor in the year 1957, and that temporary cabins had also been constructed in the hall and electric wiring extended to them. There is no doubt that it was contended by them that the hall had been damaged previously during the year 1955 when the premises had been requisitioned by the Provincial Government for the session of the Constituent Assembly and that the landlord, the late Mr. A. G. Khan, had received compensation from the Government for repairing the damage, but by had not carried out any repairs. This contention, however does not take awe from the fact that the present appellant had also committed acts which were likely to impair materially the value of utility of the steel sprung teakwood dance floor which his been described by the landlord's witnesses as being unique in the whole of Pakistan. Even without much technical evidence it is clear that roller skating on such a sensitive floor, and the erection of temporary cabins for residential purposes thereon and the connection of loose electric wires in the building premises so as to supply current to these plywood cabins, are acts which are likely to impair materially the value or utility of the building in question. I am in entire agreement with the observations made by the learned District Judge in the concluding part of paragraph 13 of his judgment that "the construction of the cabins in the hall materially impairs its value and utility as during their existence it will not be possible to use is as a dancing hall". I also agree with his conclusion that the extension of loose electric wires to these cabins without the permission of the Electricity Department created every likelihood of the building catching fire. Thus these admitted acts on the part of the present appellant fell within the mischief of clause (iii) of subsection (2) of section 13 of the Ordinance and on this ground alone the appellant was liable to ejectment.

40. As regards the question of non‑payment of rent, it bas already been stated that the non‑payment was admitted but it was contended that the landlord had forfeited his right to receive rent, and that the rent had remained suspended during the period in dispute; on account of several reasons, namely :‑ (a) that possession of a portion of Block No. 5 of the leased property was not given to the tenant, (b) that the landlord had received compensation in respect of requisitioning of the premises in 1955 by the Provincial Government, which compensation should have, in fact, been paid to the present appellant, (c) that by agitating in the Supreme Court against a favour able judgment obtained by the tenant from the High Court in regard to the compensation to be obtained from the Provincial Government the landlord interfered with the peaceful possession of the tenant and acted against the interests of the tenant, (d) that the landlord had interfered with the business of the tenant and caused him loss amounting to Rs. 59,550 by causing the break‑down of negotiations between the tenant and the Government of Pakistan in the Ministry of Interior for the purpose of housing the Civil Defence College and providing board and lodging to the trainees and staff of that College, and (e) that the landlord had charged rent at a rate higher than the fair rent with the result that the tenant was entitled to adjust over‑payments against future rent as permitted under section 8 of the Ordinance.

41. As regards the question whether possession of a portion of Block No. 5 of the leased property was given to the tenant or not, Mr. Ismail Bhatti, the learned counsel for the respondents, has raised a preliminary objection that this again is a question of fact which has been decided by the learned District Judge, as Appellate Authority, against the tenant, and should not be allowed to be agitated in second appeal. Mr. Bhatti has further pointed out that in the written statement submitted by the appellant on the 18th of May 1959, this plea was not raised at all. Finally, he has submitted that no issue was framed on this point during the trial and even though evidence may have been led on this point, it should not be looked into in view of the dictum in Siddiq Mahomed Shah v. Mst. Saran and others (AIR 1930 P C 57).

42. I think there is substance in the submissions made by Mr. Bhatti. In the written statement this defence was not take up, and for the first time, this point was raised on the 5th o June 1959 in answer to an application made by the landlord under section 13(6) of the Ordinance praying that the tenant directed to deposit rent due from him. The issues in the case were framed after that date but the tenant did not press for the framing of an issue on this particular point is whether the rent stood suspended due to the non‑delivery of possession of a portion of Block No. 5, and it should, therefore, be deemed that he had abandoned this plea. Such being the case, the dictum of their Lordships in Siddiq Muhammad Shah's case, referred to by Mr. Bhatti, would be attracted, namely, that if a claim is not made in the defence presented at the trial, no amount of evidence can be looked into upon a plea which was never put forward. On this view of the matter, it would be unnecessary to investigate whether, in fact, possession of any portion of Block No. 5, included in the lease, was not delivered to the tenant.

43. However, even if the plea be entertained, in appears to me that there is no substance in it. The learned District Judge has very appropriately remarked that the relations between the parties had started taking a turn for the worse since 1956, and considerable correspondence ensued between them, but at no occasion did the present appellant demand from the landlord the delivery of the servant quarters which, according to him, formed part of the demised' property falling under the description of Block No.

5. If, indeed, the portion of Block No. 5, which has now been variously described as the servant quarters or the basement, formed a part of the demised property in accordance with the terms of the lease agreed to between the parties in the year 1956, it is difficult to imagine that the appellant would not have made a demand for the same when the relations between the parties started deteriorating. This is, to my mind, a strong circumstance indicating that the basement or the servant quarters of Block No. 5 were not included in the lease. Although the late Mr. A. G. Khan appears to have made certain conflicting statements on this point at various stages of the trial, yet one thing emerges very clearly that he has asserted unambiguously that the basement of Block No. 5 was not included in the lease, and this assertion finds direct support from the conduct of the appellant himself in not demanding the possession of the basement or servant quarters at any stage before the present proceedings were instituted, and in not raising this point even in the written statement filed by his in response to the application for ejectment.

44. The property was, for the first time, leased out to the appellant on the 14th of November 1953 for the year 1954. In that lease deed Block No. 5 is included in the demised property and is described in the following words : "Block No. 5 facing the Boiler Room". The lease was renewed on the 1st of January 1955, for the year 1956 and there Block No. 5 was described as single‑storeyed room facing the Boiler Room. The lease was then renewed again on the 2nd of January 1956 for the period from the 1st of February 1956 to the 31st of January 1957 and in that no detailed mention of the property was made at all. The last document on the point is a letter dated the 2nd of August 1956, sent by the appellant to the late Mr. A. G. Khan, requesting for the renewal of the lease from the 1st of January 1957 to the 20th of November 1957. In this letter, which is Exh. R/18 on the file, the appellant offered to pay a rent of Rs. 10,800 in various instalments, and in paragraph 2 it was stated that "the above rent will cover Blocks Nos. 1, 2, 3, 4, 5, Tennis Cottage, Tennis Courts, servant quarters and snow well, latrine with Common . . . . . " In reply to this letter Mr. A. G. Khan wrote on the same day saying "in view of your special request I agree to rent you the hotel property for another year which shall expire on the 30th of November 1957, on the terms mentioned in your letter of the 2nd of August 1956". Then there is another letter bearing the same date, i.e., the 2nd of August 1956, allowing the lease of the property for the year 1958, but in that letter no details of the property are given. A reading of the appellant's letter of the 2nd of August 1956, does not clearly show whether the servant quarters mentioned in paragraph 2 thereof related specifically to Block No. 5 or to other blocks, or whether they were a distinct entity by themselves. There is no evidence on behalf of the appellant to show that he was not given any servant quarters at all. The present controversy is confined only to that part of Block No. 5 which, as already stated, has been variously described as the basement or the servant quarters and godowns etc. It seems to me that the appellant's letter of the 2nd of August 1956, does not contain a special stipulation that the servant quarters or the basement of Block No. 5 was also included in the demised property. On that date the lease was renewed not only for the year 1957, but also for the year 1958, and if the intention of the parties had been to include in the demised property that portion of Block No. 5 which had not been included in the previous leases, the appellant would certainly have not only made it clear in the letters exchanged between the parties on that date, but he would also have taken steps to obtain possession of the additional portion of Block No. 5 which he now claims. Considering the surrounding circumstances of the lease and the conduct of the appellant right from the 2nd of August 1956 to the 5th of June 1959, when for the first time he raised this question in the present proceedings, I have come to the conclusion that the basement of Block; No. 5 was not included in the property leased to the appellant and, therefore, the fact that this basement was not handed over to the appellant does not, in any manner, affect his liability to pay rent fur the demised property.

45. In any case, even if it be assumed, for the sake of argu ment, that the possession of some portion of Block No. 5, which was included in the lease, was not delivered to the tenant, it is note necessary that the rent for the entire property should be sus pended. There is no doubt that the rent is indicated as a lump sum rent for the entire property included in the lease, but as the property comprised several distinct units, it is not at all difficult to work out the proportionate rent for that portion of Block No. 5, namely, the basement, the possession of which has not been delivered to the tenant. The authorities relied upon by Sheikh Abdul Haq himself support this view. For instance, in Jogesh Chandra Roy v. Emdad Meah (AIR 1932 PC 28) their Lordships permitted the landlord to claim abated rent for the portion of which the lessee had obtained possession. They observed that though this case for an abated rent should have been raised and investigated along with the other questions in the case, it would be an injustice, if the appellant is prepared to submit to the penalties of his failure to raise it earlier, that the respondent should escape from payment of rent in respect of the possession which he could alone attribute to the kabuliyat". From the last paragraph of the judgment it appears that the proportionate rent for the area of which the lessee had obtained possession had to be investigated and calculated, thus showing that it was a case of a lump sum rent for the entire demised property. Their Lordships, therefore, remitted the case to the lower Court for the purpose of investigating and deciding what is the proper abatement to make on the rent under the kabuliyat for certain years in respect of the area of which possession was not delivered. Again in Joyrarn Chandra Lahiri and others v. Bisnu Charan Biswas (A I R 1925 Cal. 805) it was laid down that "there will be suspension of rent in cases where landlord has by his action dispossessed or where the lessee has not owing to his action been able to take possession of a part of the holding sold ; and the exception will be that there will be an abatement of rent where this has occurred with knowledge of the tenant before he entered into the land, that a portion of it was in the possession of another". In the present case, the appellant was already in possession of Block No. 5, and if by the lease entered into on the 2nd of August 1956 the intention was that he would be given possession of some additional portion of Block No. 5 also, it is clear that the fact that this additional portion was in the possession of another was in the knowledge of the appellant, and the result of non‑delivery of that portion can only be an abatement of rent on that account, and not its complete suspension for the entire property.

46. Sheikh Abdul Haq also referred to S. M. Katyayani Debi v. Udoy Kumar Das (A I R 1925 P C 97) in which it was held that "the doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, applies where the rent is lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulate rent is no much per acre or bigah". This case also shows that there is sanction for the view that the rent of the entire property need not remain under suspension if the rent of that part of the property which is not delivered to the tenant can be determined. In the present case, the rent is capable of being allocated to the distinct units which have been leased out, and accordingly the tenant would at the most be entitled to a propor tionate abatement. The other authorities relied upon by the learned counsel, namely, Kumola Kant Mytee v. Sreemutt v Narainee Dossee died others (9 S W R 582) and Ganda Singh Mehr Singh v. Secretary of State (A I R 1934 Pesh. 101), are cases where possession of the entire property was not delivered and, therefore, it was held that under section 108 of the Transfer of Property Act the rent remained suspended these cases have no application in the present context.

47. Finally, Sheikh Abdul Haq referred to two more cases, namely, Morrison v. Chadwick ((1849) 7 C B 266) and Upton v. Townend ((1855) 17 C 8 30) which were, however, cases of eviction by the landlord of his tenant from a part of the demised premises and it was held that such eviction created a suspension of the entire rent during the continuance of the eviction. In the latter case, the term "eviction" was given some extended meaning by saying that it meant not a mere trespass and nothing more, but something of a grave and a permanent character done by the landlord with the inten tion of depriving the tenant of the enjoyment of the demised premises It was further observed in this case that "it is now well settled, that if the tenant loses the benefit of the enjoyment of any portion of the demised premises, by the act of the landlord, rent is thereby suspended". It seems to me that the observations in these two cases are not directly applicable in the instant case which Is more appropriately governed by the dictum in the cases cited earlier in this judgment to the effect that if possession of a parts of the demised property is not delivered, then to that extent the rent abates but there is no total suspension of rent, if the rent of the disputed portion can be calculated.

48. It will thus be seen that, in the first place, my conclusion is that the basement of Block No. 5 was not included in the lease ; and secondly, that even if it had been included and its possession was not delivered to the appellant, the appellant was only entitled to a proportionate abatement of rent, which would be a very small amount indeed considering that the portion in dispute was only in the nature of a basement which could be used only as servant quarters or godowns. Such being the case, the liability of the appellant to pet rent remained, and if he failed to pay rent; altogether, as admitted by him, he was certainly a defaulter.

49. The next ground urged in justification of non‑payment of rent by the appellant is that the landlord had received compen sation in respect of the requisitioning of the premises by the Provincial Government in 1955, whereas that compensation should have been paid to the present appellant, or at last it should nave been shared with him. Sheikh Abdul Haq placed reliance on Ganu Dadu Jadhav and others v. Panditrao (A I R 1940 Bom. 592), which was a case of acquisition of land under the Land Acquisition Act, 1894. The learned Judge held that "whore a land has beer taken by Government and compensation has been paid to a party who has received more than his own share of the compensation, he must account to the other party, that is, if the landlord receives the whole amount, and the tenant has not got any portion of the compensation, the landlord is bound to abate the rent. On the other hand, if the tenant receives the whole of the compensation without paying the share due to the landlord, he is not entitled to retain the whole compensation and refuse to pay the whole of the rent".

50. It will be seen that in the case relied upon by the learned counsel for the appellant, the basic assumption is that both the parties are entitled to share the compensation under the relevant law. This becomes particularly clear from the last part of this judgment by which the case was remanded to the lower Court for determining whether the compensation awarded to the tenant included the landlord's interest and whether the landlord has received either from the Collector or from the tenant any, portion of the compensation fur the land acquired: Now, in the present case the question whether the appellant was entitled toy receive the whole or any part of the compensation awarded by the Provincial Government on account of the requisitioning of the premises in the year 1955 has been finally decided by the Supreme, Court in Khan Bahadur A. G. Khan v. Shujauddin Qureshi and others (PLD 1961 SC 1). Their Lordships observed that "the relevant Ordinance provided that compensation for the use and occupation of any requisitioned property should be paid to the owner, and by a definition, the meaning of the word `owner' was extended to include (1) a, successor‑in‑interest of an owner, (2) a mortgagee in possession and (3) a lessee for a fixed period who has paid rent for the whole of that period in advance. It was plain that Shujauddin Qureshi who had not paid rent for the period of agree ment, namely, from the 1st February 1955 to the 31st January 1956 in advance, did not fall within the meaning of the expression `owner' used in the Ordinance, and, therefore, did not qualify for payment of compensation". In view of this decision of the Supreme Court it is clear that the present appellant had no right to share in the compensation paid by the Provincial Government on account of the requisitioning of the property in 1955, and` accordingly, there is no question either of the suspension of rent on that account or of allowing any adjustment to the appellant in the matter of the payment of rent by him.

51. The next point raised in connection with the non -payment of rent also relates to the question of payment of com pensation to the appellant on account of trio requisitioning which took place in 1955. It may be stated here that the appellant had filed a writ petition in the High Court, namely, Writ Petition No. 688 of 1957, claiming that he, was entitled to receive compen sation from the Provincial Government. This petition was accepted on the 17th of December 1958 and the Provincial Government was directed to pay compensation to the appellant for loss of business, and the landlord was also directed to pay the amount of rent received by him to the appellant. The land lord appealed to the Supreme Court and, as already stated, the Supreme Court held that only the landlord was entitled to compensation and Shujauddin Qureshi was not. It was argued by Sheikh Abdul Haq that the act of the landlord in appealing to the Supreme Court against a favourable judgment obtained by the appellant from the High Court amounted to a substantial interfer ence by the landlord with the peaceful possession of the tenant and, therefore, resulted is suspension of rent. It was further contended by the learned counsel for the appellant that if the landlord had not interfered by way of filing an appeal in the Supreme Court, the appellant would have been able to obtain substantial compen sation from the Provincial Government, and thus it was the landlord alone who was responsible for causing loss to the appellant. This particular point does not appear to have been raised before the learned District Judge where the only contention put forward was that the tenant should have been given a share out of the compensation money received by the landlord. For this reason alone, I would be justified in not considering this point at this stage. However, even otherwise, in view of the legal position, as finally declared by their Lordships of the Supreme Court, regarding the entitlement of the present appellant to receive any share of the amount of compensation in question, it is clear that the act of the landlord in appealing to the Supreme Court did not, in any manner, amount to a wrongful act and it cannot be said that by filing that appeal the landlord interfered with the tenant's peaceful enjoyment of the demised property. The question raised by the landlord before the Supreme Court was primarily a question of law and it was decided in his favour, thereby declaring that the present appellant had no right to share in that compensation. I have not been shown any authority in which it has been held that a landlord commits a trespass against his tenant if he claims his legal rights under the law of the land. There is thus no force in this contention whatsoever.

52. The fourth ground put forward for non‑payment of rent is that the landlord had interfered with the business of the tenant and caused him loss amounting to Rs. 59,550 by causing a break down of negotiations between the tenant and the Government of Pakistan in the Ministry of Interior for the purpose of housing the Civil Defence College, and providing board and lodging to the trainees and staff' of that College.

53. It appears that in May 1956 certain negotiations were started between the appellant and the Civil Defence Department of the Government of Pakistan with regard to accommodation for housing the Civil Defence College. A draft agreement (Exh. P. 10) was prepared between the parties, according to which the appellant offered to provide a lecture hall, Commandant's Office, lounge, senior instructor's office, and other office accommodation including storage space etc., at a total rent of Rs. 9,850 per year payable in equal instalments. It was also mentioned in clause (2) of the terms and conditions that "up to 40 officers/trainees can also be provided with furnished residential accommodation at most reasonable rate, provided 15 days notice is given". On the 17th of July 1956, Mr. Ehsan Qadir, who was the Commandant of the Civil Defence College, Rawalpindi, wrote letter (Exh. R. 5) to the appellant, practically finalising the negotiations and intimating that an advance party will be arriving at Murree on the 25th of July 1956. At this stage, the late A. G. Khan seems to have interfered, as is apparent from letter Exh. R. 6 written by Mr. Ehsan Qadir on the 21st of August 1956. In paragraph 3 of this letter it is stated that a telegram had been received from Mr. A. G. Khan, the proprietor of the property, that the department should not enter into agreement with the lessee without the landlord's consent. It was stated in the letter that before reaching final in agreement with the lessee it was necessary to ensure that the lessee was entitled to rent out portion of the Murree Club Hotel to the Civil Defence Department without any possibility of interference by the Proprietor. Some further correspondence ensued between the parties as well as between the parties and the Government. The appellant sent a notice to the late A. G. Khan on the 26th of August 1956 (Exh. P. 2) pointing out that the latter would be responsible for the consequences of his illegal act in interfering with the business of the appellant, namely, the letting out of the premises for lodging and boarding. A telegraphic reply to this notice was sent by the late A. G. Khan on the 29th of August 1956 (Exh. P. 6) in which he stated that he had never objected to the letting out of rooms in the hotel for residence or board to staff and trainees of Civil Defence Department or anyone else. On the 21st of August 1956 Mr. A. G. Khan sent letter (Exh. R. 7/2) to Mr. Ehsan Qadir in which he suggested that the draft agreement between the authorities of Civil Defence Department and the appellant Shujauddin Qureshi should be shown to him and he added that "there can be no objection to the present lessee renting any rooms, but he cannot convert the hotel into a college nor can he allow the dance hall floor to be used as college class room floor on which persons with boots to walk and sit over it with tables and other load on it . . . . . It seems that the matter was then discussed at a meeting at Karachi between the lessee, the landlord A. G Khan and the officials of the Ministry of Interior at which certain proposals appear to have been made by A. G. Khan for sharing of the profits to be made by the lessee. However, on the 15th of October 1956, Mr. Eshan Qadir wrote letter (Exh. R. 12) to the Manager, Muree Club Hotel, Murree (i.e., the present appellant) intimating that the matter had been dropped by the Ministry of Interior owing to the break‑down of the lessee's negotiations with the landlord at Karachi.

54. It is contended by Sheikh Abdul Haq, the learned counsel for the appellant, that the contract between the appellant and the Ministry of Interior fell through as a direct result of the intervention of the late A. G. Khan, and, therefore, two consequences ensued: (a) that the landlord became responsible for the loss of the profits which the lessee would have made on account of the board and lodging of the trainees of the Civil Defence College, and (b) that the entire rent of the premises stood suspended due to the intervention of the landlord in the lessee's peaceful enjoyment of the property. 55 As regards the question of providing board and lodging to the Civil Defence trainees, it is clear from the draft agreement Exh. P. 10 placed on the record that this was not one of the terms agreed to between the appellant and the Ministry of Interior. It was only an offer by the appellant that up to 40 officers trainees can be provided with furnished residential accommodation at most reasonable rates provided 15 days notice is given. No rates were fixed, and no undertaking was given by either side on this point. The matter has been clarified by Mr. M. S Siddiqui, Deputy Secretary, Ministry of Interior, who was examined on commission. He stated that the arrangements for board and lodging were to be made by the staff and students themselves and not by the Government. He stated this with reference to the subsequent housing of the Civil Defence College in the Ambassador Hotel, Murree. This witness also admitted that the objection of the late Mr. A. G. Khan was to the housing of the College in the premises of the Murree Club Hotel and not to the hotel being used for lodging and boarding of the students and staff of the Civil Defence College. The same position also emerges from admissions made in cross‑examination by Sheikh Ikramul Haq (R. W. 5). It thus becomes clear that, in the first place, the negotiations started by the officers of the Civil Defence Department and the Ministry of Interior were primarily for the purpose of finding accommodation for housing the Civil Defence College, and not for providing board and lodging for the trainees and staff of, that College, as this was not the responsibility of the Government. In the second place, the evidence shows that whatever the original stand taken by the late Mr. A G. Khan, he had ultimately objected only to the housing of the Civil Defence College in the premises in dispute and not to the lessee letting out rooms for board and lodging to the trainees and staff of the Civil Defence College.

56. It seems to me that the deceased landlord was within his rights to object to the housing of the Civil Defence College in the premises of the Murree Club Hotel, for it was a condition of lease between him and the present appellant that the hotel would be run on approved lines. This is clear from an assertion made in paragraph I of his application on which the present proceedings were started, and the reply of the appellant in the written statement that the contents of para. 1 of the application were correct. It does not need much argument to see that the housing of Civil Defence College and the establishment of office rooms ate, in the premises of the Murree Club Hotel cannot be described as running the hotel on approved lines. The learned District Judge has rightly remarked that it would have undoubt edly meant the conversion of the hotel into a college which was objectionable. However, after holding that the landlord was well within his rights to object to the establishment of a college in his hotel, the learned District Judge has gone on to criticise the conduct of the late A. G. Khan by observing that "his object was not to save the property from its improper use but to extort money from Shujauddin Qureshi or to deprive him of his legitimate business" In support of these observations the learned District Judge has relied on certain statements made by Mr. Ehsan Qadir, the Commandant of the Civil Defence College, who was playing an important part in the negotiations between the Civil Defence authorities and the lessee and the landlord. Mr. Ehsan Qadir stated that during the negotiations Mr. A. G. Khan had suggested that if Mr. Qureshi would pay him half the amount of rent, he would withdraw his objections, but Mr. Ehsan Qadir informed Mr. A. G. Khan that this was a matter to be settled between the lessee and the landlord. The learned District Judge also took note of a statement made by Mr. A. G. Khan as respondent No. 2 in the writ petition filed by the appellant in the High Court, that "as landlord he would positively welcome the requisitioning of the premises for any public purpose".

57. Now, it is clear to me that once it is held that the landlord was well within his rights to object to the establishment of a college in his hotel, there can be no question of burdening the landlord with damages for the reason that he was prepared to waive his objection provided he was adequately compensated by the lessee by sharing of profits, which the lessee would have made on account of his contract with the Civil Defence Department. The objection of the landlord nevertheless remains a bona fide objections in the sense that he was entitled to raise that objection in the light of the agreement of lease between the parties. It is clear that the basis of the objection was that it would cause damage to the premises of the Murree Club Hotel if its dance hall and other residential accommodation was converted into a lecture hall or demonstration rooms for Civil Defence lessons. This stand of the landlord cannot be described as dishonest or wanting in bona fide, if he shows his willingness to waive his objection provided he is adequately compensated for the damage that may be caused to his hotel premises. I consider, therefore that after recording a positive finding that the landlord was well within his rights to object to the establishment of a college in his hotel, the learned District Judge was not justified in recording the further conclusion that "the act of Mr. A. G. Khan amounted to interference with the enjoyment by the tenant of the property demised to him".

58. It will be seen, therefore, that the position which emerges is that the lessee wag under an obligation to run the hotel on approved lines, that renting out a part of the demised property for the housing of the Civil Defence College could not be described as running the hotel on approves lines and, therefore, the landlord was justified in objecting to the contract which was about to be concluded in this behalf between the lessee and the Government of Pakistan in the Ministry of Interior. This position is not altered by the fact that the landlord was willing to waive his objection provided he was adequately compensated by the lessee The landlord did not object to the board and lodging arrangements. The result, therefore is that although the negotiations between the appellant and the Government of Pakistan broke down due to the intervention of the late A. G. Khan, yet this intervention being justifies on the basis of the terms of the lease between the parties, could not be termed as interference with the peaceful enjoyment of the demised property by the tenant and accordingly no question of suspension of rout would arise. On this view of the matter, it becomes unnecessary to refer to the large number of authorities which were cited by Mr. Abdul Haq to explain the doctrine of suspension of rent.

59. For that very reason it is clear that no question arises or awarding any damages to the lessee on account of the intervention of the landlord in the negotiations between the lessee and the Government. I have already held that the landlord was justified in objecting to the conversion of the Hotel into a Civil Defence College, and that being so, he cannot be burdened with any damages for raising this objection, simply on the ground that he would have been prepared to forego this objection if the lessee had offered him adequate compensation by way of sharing of profits etc. I would accordingly reverse the finding of the learned District Judge on this point and set aside his order granting damages to the tune of Rs. 2,500 to the lessee on account of the alleged interference on the part of the late A. G. Klan.

60. As regards the loss of Rs. 59,550 alleged to have been caused to the lessee by the interference of the landlord in the matter of the board and lodging of the trainees and stiff of the Civil Defence College, the position is clear that, in the first place, the provision of these facilities was not the duty of the Govern ment, as stated by Mr. M. S. Siddiqui, Deputy Secretary to the Government of Pakistan, and accordingly this was not made an essential condition of the proposed contract between the lessee and the Government. It has already been pointed out that in the draft agreement (Exh. P. 10) it was only embodied as an offer by the lessee to the Government. Further, the documentary evidence to which reference has already been made, shows that the landlord, the late A. G. Khan, bad made it clear that he was not objecting to the provision of board and lodging .to the trainees and staff of the Civil Defence College, but to the conversion of the hotel premises into a Civil Defence College. In other words, the landlord did not interfere with the lessee's business of running the hotel as such, and accordingly no case is made out for assessing any damages against the landlord on account of the fact that the Civil Defences trainees and staff did not come to reside in the Murree Club Hotel. The loss of business, if any, was due to a more fundamental reason, namely, that the hotel premises could not be allowed to be converted into a Civil Defence College. There is thus no question of allowing any adjustment to the lessee in the matter of rent on account of this alleged loss of business.

61. The last contention on the question of non‑payment of rent is that the landlord had charged rent at a rate higher than the fair rent, with the result that the tenant was entitled to adjust over‑payments against future rent as permitted under section 8 of the Ordinance. It was pointed out by Mr. Abdul Haq that the municipal assessment of the premises in dispute was only Rs. 8,250 per annum and this was the amount which the landlord had accepted from Government in the year 1955 when the premises had been requisitioned for holding a session of the Constituent Assembly, but the landlord was charging Rs. 13,218 per annum under the terms of the lease, which he was not legally permitted to do. The learned counsel for the appellant made a strong grievance of the fact that although the appellant's application for the fixation of fair rent had been instituted on the 29th of July 1959 and arguments had been partly heard by the Rent Controller in November 1962 and completed in May 1963, yet the matter was not finally decided and the Rent Controller desired further arguments to be addressed by the parties. The proceedings taken by the Rent Controller in the matter of the appellant's application for the fixation of fair rent are not before me and I cannot, therefore, give any finding as to the reasons which have delayed the disposal of that application, but the fact remains that even on the date arguments were addressed before me in the present appeals, the fair rent had not yet been fixed by the Rent Controller. The question is whether the appellant is entitled to adjust over‑payments against future rent, without the fair rent having been fixed so far.

62. A similar question arose before me in Haji Ghulam Muhammad and another v. Ali Siraj (P L D 1964 Lah. 15) and following Lala Krishan Lall Malhotra and two others v. Sheikh Muhammad Sadiq (P L D 1955 Lah. 288), I held that: "The only excess rent which is irrecoverable under the provi sions of section 6 is that rent which remained unpaid after the fixation of fair rent, because it is only after such fixation that the disability is imposed on the landlord by section 6 to claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent. To put it differently, any rent in excess of the fair rent, which has already been paid by the tenant before the fixation of the fair rent, does not become irrecoverable retrospectively by reason of the provisions of section 6, as at the time it was paid, accord ing to the terms of the tenancy between the parties, it was not irrecoverable by reason of any of the provisions of the Ordinance. The claiming or receiving by the landlord of any rent in excess of the fair rent is prohibited only after the fixa tion of the fair rent."

63. The learned counsel for the appellant contended that in the judgment cited attention was not paid to the explanation to section 8 which is to the effect that "in computing the said period of six months the time spent, after the date of payment, in the proceedings for determination of fair rent shall be excluded". It appeared to the learned counsel that this explana tion clearly shored that adjustment could be allowed retrospectively the argument advanced by Sheikh Abdul Haq, however, overlooks the fact that section 8 only lays down a procedure foe the recovery of excess rent paid by the tenant, but the question a6 to when this excess rent becomes recoverable by the tenant has to be determined with reference to section 6 of the Ordinance which clearly speaks of a stage when the Controller has fixed the fair rent of a building or rented land under section

4. The result is that I am not persuaded that the view taken by me in Haji Ghulam Muhammad's case is not correct. Lt is clear, therefore, that until such time as the fair rent of the premises is fixed by tat Rent Controller, the present appellant remains under an obligation to pay the contractual rate of rent, i.e., Rs. 13,218 per annum, and he cannot claim adjustment of any alleged over‑payments as com pared to the annual municipal assessment of the demised property.

64. For the foregoing reasons, I have come to the conclusion that this is clearly a case where the lessee has committed acts which were likely to materially impair the value and utility of the demised property ; and, secondly, that he has been guilty of default in the payment of rent. The lessee was, therefore, liable to ejectment on both these grounds. There was no question of the suspension of rent, nor was there any case made out for the grant of damages against the landlord on account of any alleged interference by the latter in the peaceful enjoyment of the demised property by the tenant.

65. However, it was finally contended by Sheikh Abdul Haq that it is not every default which should be visited by the penal consequence of ejectment. He submitted that in the present case the lessee was merely protecting his rights under the law; that his refusal to pay rent, after notice to the landlord, was not a contumacious act ; and that during the present proceedings the tenant has been more than fair by depositing a substantial sum over and above that ordered by the Rent Controller or the Appellate Courts. The learned counsel also pointed out that the lessee had suffered a loss to the tune of more than rupees one lac due to the present dispute with the landlord and, therefore, be should be allowed to retain the hotel for a sufficient period so as to make up this loss. The learned counsel referred me to some authorities in support of his submissions. Reference may be made to Muhammad Amir and another v. Peryag Single and others (I L R (sic) Cal. 566). In that case, it was observed that independently of the Rent Act the tenants should be allowed in equity a reason able time to pay the landlord's dues in order to prevent forfeiture.

66. In the present case, the learned Rent Controller and the learned District Judge, as Appellate Authority, have exercised their discretion against the lessee and ordered his ejectment on account of the two grounds urged in the landlord's application, namely, the commission of acts likely to impair materially the value or utility of the demised property and default in the payment of rent since the year 1957. This Court in second appeal would not ordinarily interfere with the exercised of that discretion unless it be shown that the discretion has been exercised in an arbitrary or capricious manner. This does not appear to me to be the case. As already stated, the default in the payment of rent first occurred in the year 1957. The landlord instituted the ejectment proceedings on the 29th of March 1959, i.e., nearly five years ago. The contention that the tenant has suffered a loss to the tune of rupees one lac due to interference by the landlord has been found to be without substance. The mere fact that during the proceedings before the Rent Controller or in the Appellate Court the tenant has deposited the rent when called upon to do so does not take away from the fact that he was a defaulter in the payment of rent due to the landlord, before the landlord, invoked the jurisdiction of the Rent Controller. Due to the prolongation of these proceedings the lessee has already continued in possession of the premises for nearly five years except for a short interval when the landlord succeeded In obtaining possession under the Rent Controller's order. In these circumstances, I do not see any justification for holding that this is a case where in spite of the defaults found against the lessee, he should be allowed to continue in possession ; or that in ordering his ejectment the two Courts below have not exercised their discretion properly and judiciously.

67. In the result the tenant's S. A. O. No. 298 of 1963 is dismissed with costs. The landlord's appeal S. A. O. No. 361 of 1963 is accepted with costs. Further, the landlord's appeal S. A. O. No. 190 of 1963 is dismissed as having become in-fructuous, with no order as to costs. The stay order granted in favour of the lessee on the 8th of October 1963 is vacated and his ejectment shall proceed as directed by the two Courts below. A. H. Order accordingly.