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- S. 17-Ejectment of tenant-Default-Payment of rent, proof of Except for oral statement of tenant himself, no other evidence produced by tenant to support payment of rent for the period in dispute-Tenant being interested party, his statement, held, had to be read with great deal of caution-Oral statement of tenant by itself, in absence of anything in writing, would be wholly insufficient evidence-Onus as to payment of rent being on tenant, he would be required to prove same by convincing evidence.

Allah Din v. Habib P L D 1982 S C 465 rel.

(b) Cantonments Rent Restriction Act (XI of 1963)

-- S. 17-Default in payment of rent-Security deposits with landlord-Rent, whether could be adjusted from security deposits-la absence of agreement, rent due and not paid, held, could not be adjusted from security deposits.

Ali Muhammad v. Sardar Ghulam Ahmad, etc. N L R 1980 Civil Lah. 503 ; P L D 1975 Lah. 1504, P L D 1978 Kar. 149 ; Syed Shafiuddin v. Abdul Hakim Khan P L D 1978 Kar.. 149 ; Shahid Hussain v. Muhammad Ziauddin Khan 1982 C L C 2648 ; Muhammad Yousaf v. Abdullah P L D 1980 S C 298 and Munawar Begum and 9 others. v. Mst. Alqab Begum 1984 C L C 1979 ref.

(c) Cantonments Rent Restriction Act (XI of 1963)-

-- S. 17 (2) (i)-Default in payment of rent-Payment of rent, mode of-Payment of monthly rent being regulated by S. 17(2) (i) of Act XI of 1963 tenant would be obliged to pay rent within sixty days following period for which rent was due-In absence of convincing material that rent for period in default was either tendered or actually paid, tenant, held, would be deemed to be a rent defaulter.

(d) Cantonments Rent Restriction Act (XI of 1963)-

-- S. 17-Ejectment of tenant for default-Discretion of Court, exercise of-Requirements-Normally a Court of appeal, held, .would not interfere with exercise of discretion by lower Court if same had been judicially exercised-Where, however, such discretion had been exercised arbitrarily or on wrong conception of law, it would be duty of Appellate Court to interfere and pass such order so as to be in consonance with justice and requirement of law---Tenant who raised a false plea would disentitle himself to the exercise of discretion in his favour---- Discretion would always be exercised on equitable of and judicious considerations.

Muhammad Yousaf v. Abdullah P L D 1980 S C 298 rel.

Manzoor Hussain v. The State P L D 1963 (W. P.) Lah. 20 ref.

Kowkab lqbal for Appellant.

Mirza Anwar Baig for Respondent.

Date of hearing : 15th October, 1986.

This appeal under section 24 of Act XI of 1963, is directed against order dated 17-3-1985 of Rent Controller, Rawalpindi Cantonment, and arises out of the facts given below.

Appellant is the tenant of Shops 2-A, 3-A in Green Super Market (5311) Kashmir Road, Rawalpindi Cantt. of which respondents are the landlords. Rate of monthly rent as also the relationship are not in dispute. Respondents applied for ejectment of the appellant from the shops in dispute on the ground of default in payment of rent. Application was filed before learned Rent Controller on 23rd September, 1984. It was averred that rent since the month of January, 1984 till the date of filing of eviction application had neither been tendered for payment nor actually paid. Averment as to default was made in para. 3 of the eviction petition. In the written statement, filed by the appellant averment as to default was denied and it was pleaded that the appellant was not a rent defaulter. However, in para. 2 of the written statement, it was pleaded that the rent in default could be adjusted from the security amount of Rs. 7,840 still lying in deposit with the respondents. On 17th October, 1984, a direction under section 17(8) was issued by the Rent Controller and the tenant was directed to deposit the arrears from the month of January, 1984 to September, 1984, amounting to Rs. 7,776 before 4th November, 1984. Admittedly, this amount had been deposited by the tenant in the treasury. After issuing the aforenoted direction, Rent Controller proceeded to formulate an issue on default, recorded evidence of the parties, and, vide order impugned in appeal, found default established, ordered ejectment of the appellant and directed him to vacate and hand over the possession of the shops within 30 days of the date of order. Aggrieved of the decision, tenant has come up in appeal to this Court. For the appellant, three points have been raised. First, there is no default and the rent for the period in dispute had been paid. Second, default if proved was condonable and the rent arrears could be adjusted from the amount of security lying in deposit with the respondents. Third, appellant was entitled to exercise of discretion in his favour. In regard to the first contention, I find that it has no real substance. Vide Exh. R. 1, a sum of Rs. 10.000 was given as security to late Kh. Hidayat Ullah, to be refunded at the time of vacation of the shops. Rent from December, 1980 to December, 1982 was paid on the agreed rate without claiming any adjustment from the security. Receipts Exhs. R. 2 to R. 7 reveal that Rs. 360 was paid as rent per month to the respondents for the months of January; 1983 to June, 1983 and appellant claimed adjustment from the security amount as to the other half of the monthly rent. At that time, the a0reed monthly rent was Rs. 720 per month. After adjustment, the amount of security was reduced to Rs. 7,840. In July, 1983, rent was raised to 864 per mensem, and there is no dispute about this enhancement. From July, 1983 to December, 1983, rent was either paid through money orders or paid in cash and receipts obtained. This mode of payment was supported by Exhs. P. 1 to P. 6. Plea as to the -payment of rent for the months of January, 1984 to the date of the filing of the rent application is not supported by anything in writing. Except for an oral statement of the tenant himself, there is no evidence to support payment of rent for the period in dispute. Tenant appellant is interested party and his statement has to be read with a great deal of caution and certainly standing by itself it is not sufficient to prove the payment of rent as alleged by him. Onus as to payment lay on him and it was for him to prove it by convincing evidence. Having regard to the statement made by the appellant, it is extremely doubtful whether Court of justice can hold that he has proved payment of rent satisfactorily View taken by me receives ample strength from the decision of their Lord ships of the Supreme Court in Allah Din v. Habib (1). Their Lordships observed. "Applying the principle to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of oral assertions. the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in second appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises." In this view of the matter, I have no hesitation to say that bald statement of the tenant to support payment of rent in the absence of any for him. As to the) thing in writing was wholly insufficient evidence to find adjustment of arrears from security to condone the default committed, the issue has been examined in several decisions to which learned counsel for the parties have made reference in support of their respective contentions. In Ali Muhammad v. Sardar Ghulam Ahmad, etc. (2) this Court took the view that the security by its very nature is the deposit to ensure specific performance of the covenants of an agreement of tenancy and in the absence of an express agreement between the parties to that effect, rent arrears could not be adjusted from the security so as to condone default. In reaching the decision, reliance was placed on decisions to be found in P L D 1975 Lah. 1504, P L D 1978 Kar. 149. Similar view prevailed in Syed Shafiuddin v. Abdul Hakim Khan (3) Shahid Hussain v. Muhammad Ziauddin Khan (4). However, in some later decisions from Karachi jurisdiction, relying on the Supreme Court Judgment in Muhammad Yousaf v. Abdullah (5) it was found that the amount of security could be adjusted against the rent arrears and the effect of rent-default minimized to make out a case for exercise discretion in favour of the tenant. Refer Munawar Begum and 9 others v. Mst. Alqab Begum (6). Material issue of adjustment of rent from security deposit can more appropriately be resolved in the light of the decision of their Lordships of the Supreme Court in Muhammad Yousaf v. Abdullah. Relevant observations which elucidate the point are found on page 306 of the report. For facility of reference an extract may be quoted. It reads "It is true that the appellant had not demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the creditor, therefore, he should have informed the respondent to adjust the arrears of rent against his deposit with the respondent. This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce, if the respondent was evicted for being in debt to the respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly, even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour." Two points require consideration. First, whether the tenant had failed to pay the- agreed rent and earn the penalty of eviction. Second, whether it was a case for exercise of discretion in his favour. As for the security, it was expressly stated in Exh. R. 1 that it shall be refunded at the time of eviction. There is no agreement between the parties that rent due and not paid could be adjusted from the security deposit. In Munshi Emamuddin Ahmad through Muhammad Abdul Rahman and others v. Province of East Bengal and others P L D 1952 Dacca 279 it was ruled that :-- .

(1) P L D 1982 S C 465 (2) N L R 1980 Civil Lahore 503

(3) P L D 1978 Kar. 149 (4) 1982 C L C 2648

(5) P L D 1980 S C 298 (6) 1984 C L C 1979

"Where the money has been expressly. paid for a specified object and it was received and acknowledged on that account, there is no power on the part of either of the parties to the transaction, without the assent of the other, to vary the effect of the transaction by altering the appropriation in which both originally concurred."

In the circumstances, it cannot be safely said that the tenant when he failed to pay or tender the rent in accordance with the provisions of section 17(2),1 clause (i) of the Rent Act, he was not a rent-defaulter. Section 17 (2) (i) of the Act reads "the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due. It was not the case of either party that terms of tenancy were put in writing. Therefore, the payment of monthly rent shall be regulated in accordance with later part of clause (i) and the tenant shall be obliged to pay the rent within sixty days following the period for which the rent was due. On record, as, I have said above, there is no convincing material to show and prove - that the rent for the period in dispute had either been tendered or actually paid. In my view, therefore, tenant was clearly a rent defaulter and the Rent Controller was not erroneous in holding him so. This brings me to the last limb of the issue whether appellant in the facts and circumstances of the case was entitled to claim exercise of discretion in his favour so as to condone the effects of default and save him from the penalty of ejectment. Rent Controller found against the appellant and directed his ejectment. Normally, a Court of appeal would not interfere with the exercise of discretion by the lower Court if the discretion which is a judicial act has been judiciously exercised by it. However, if it is found to have been exercised arbitrarily or on a wrong conception of law, it becomes the duty of appellate Court to interfere with it and pass an order which would in the circumstances of the case be in consonance with justice and the requirements of law. The question of exercise of discretion anxiously engaged my attention. Had it not been for the false plea of payment, I was readily inclined to exercise discretion in favour of the appellant and treat the default as not wilful in accordance with the principles of law laid down by their Lordships of the Supreme Court in Muhammad Yousaf v. Abdullah. Payment of rent was pleaded in written statement as also in evidence. Plea has been found to be false. A tenant who raises a false plea runs a grave risk and certainly disentitles himself to the exercise of discretion in his favour because discretion is always exercised on equitable and judicious considerations. To exercise discretion in favour of such a person tanta-mounts to provide encouragement to take up false pleas and commit perjury in Courts. Tendency to put up false pleas and then to support them with adduction of false evidence is a circumstance which seriously affects the efficacy of the administration of justice. Late Manzur Qadir, the Honourable Chief Justice of the Lahore High Court in Manzoor Hussain v. The State (1) observed :

"Administration of justice is a solemn and sacred duty. The Courts are not there to be trifled with. If it appears to a Court that forgery or perjury has been committed in relation to any proceedings before it, it is its duty to consider why the person concerned should not be prosecuted and if there is no good reason why he should not be prosecuted, to take prompt and adequate action, so that an impression is not created that anyone can divert or abuse the process of law by falsehood or fabriction and still run no risk of coming to harm."

Refer also to Jan Muhammad v. Muhammad Ashraf and another (2). It is for this reason that I have felt declined to exercise discretion in favour of the appellant. The result is that I agree with the conclusion of the Rent Controller, uphold his decision and dismiss the appeal but leave the parties to bear their own costs. Appellant is allowed one month's time to vacate and hand over possession of the shops to the respondents. Records summoned from the Rent Controller be sent back.

A. A. Appeal dismissed.

(1) P L D 1963 (W. P.) Lah. 20 (2) 1980 C L C 698

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