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Civil Petition for Special Leave to Appeal No. K‑62 of 1975, decided on 11th August, 1975.
(On appeal from the judgment and order of the High Court of Sind and Baluchistan made on the 14th of February, 1975 in II Appeal No. 122 of 1969).
‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(2)‑‑Ejectment‑‑Default in payment of monthly rent merely of technical nature‑‑Whether could be excused'‑‑Discretion of Rent Controller‑‑Exercise of‑‑Ejectment ordered by Rent Controller on ground of default in payment of rent while tenant's amount as advance rent was still lying in deposit with landlord‑‑Tenant not a habitual defaulter‑ Order of ejectment set aside in second appeal‑‑Fit case where discretion allowed by S. 13(2) should have been exercised in favour of tenant‑‑High Court, held, rightly exercised discretion in favour of tenant‑‑Leave to appeal reused.
Mst. Talyaba Khatoon v. Muhammad Fariduddin P L D 1971 Kar. 747 ref.
Mirza Abdul Rashid, Advocate and Muzaffar Hassan, Advocate -n‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 11th August, 1975.
‑This petition for special leave to appeal is by the landlord, who is aggrieved by an order made by a learned Judge of the High Court of Sind and Baluchistan on 14‑2‑1975 exercising his discretion in favour of the respondent‑tenant under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
The premises in dispute were leased out by the petitioner to the respondent on a monthly rent of Rs.140, with effect from the 20th of May, 1962. According to the terms of the agreement, one year's advance rent amounting to Rs.1,680 was paid by the respondent out of which Rs.70 per month were to be adjusted towards the future rent and the remaining sum of Rs.70 was to be paid every month by the tenant on the expiry of each month. In other words, the advance rent was to be adjusted within a period of two years. In the ejectment application 'filed by the petitioner it was alleged that the tenant had committed default in the payment of rent for the period 21st of March to 20th of May, 1964. This allegation was accepted by the trial Court and an ejectment order was made against the respondent. The order was upheld in first appeal by the District Court.
In Second Appeal, the High Court has agreed with the two Courts below that, technically speaking, there was a default by the tenant inasmuch as he had not complied with the stipulation contained clause (iv) of the lease agreement relating to the payment of Rs.70 per month for the two months in dispute, but it has observed that on to date of the filing of the ejectment application a sum of Rs.140 was till lying in deposit with the landlord out of the advance rent paid by he tenant. It has further observed that the tenant had also paid to he present petitioner the rent due on 2‑6‑1964 by means of a cheque which was accepted by the petitioner, thus showing that the tenant was not a habitual defaulter. Taking note of these facts, the High Court has expressed the view that it was a fit case where the discretion allowed by section 13(2) of the Ordinance should have been exercised in favour of the tenant. Accordingly it has set aside the order of ejectment made by the Rent Controller and upheld by the learned Additional District Judge, Karachi.
Leave to appeal is sought on the ground that the learned Judge in the High Court has erred in law in thinking that a proved default in the payment of rent could be condoned under section 13(2) of the Ordinance. In support of this submission, the learned counsel for the petitioner has placed reliance on Mst. Talyaba Khatoon v. Muhammad Fariduddin P L D 1971 Kar. 747.
A perusal of the judgment relied upon by the learned counsel for the petitioner shows that although the learned Judge has made several observations tending to give the impression that in his view the use of the word 'may' in section 13(2) of the Ordinance did not import uncontrolled or naked discretionary power so as to enable the Rent Controller to excuse default in the payment of rent, yet the learned Judge had to concede that the word 'may' was to be distinguished from the word 'shall'. As we read this judgment, we consider that, in spite of certain self‑contradictory remarks, it does not lay down the wide proposition canvassed before us on behalf of the petitioner, namely, that the Rent Controller has no discretion in the matter of ordering ejectment once a default in the payment of rent is proved. Such a proposition would be a negation of the relevant statutory provision. At the same time it is clear that the discretion conferred by subsection (2) to section 13 of the Ordinance has to be exercised in accordance with sound judicial principles, and not in an arbitrary or wilful manner.
Now, in the present case, the High Court has found that at the time of the filing of the ejectment application against the respondent a sum of Rs.140 was still lying in deposit with the petitioner, and a further amount had also been paid by the tenant on 2‑6‑1964 by means of a cheque which was accepted by the petitioner. These circumstances showed that the default if any, committed by the tenant was merely of a technical nature. This was accordingly a fit case in which the discretion conferred by law should have been exercised in favour of the tenant, and was rightly so exercised by the‑High Court.
As a result, we do not regard this as a fit case for the grant of leave to appeal. The petition is accordingly dismissed.
M.I Petition dismissed
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