' The instant appeal has been preferred by Mujeebur Rehman, tenant-appellant against the judgment/order, dated 3-5-2000 passed by the learned Rent Controller, Nowshera Cantt. Whereby by accepting the ejectment application of Zafar Ali Khan, landlord-respondent, the appellant was directed to vacate the suit shop within thirty days.
2. The brief facts of the case are that Zafar Ali Khan, landlord-respondent instituted an ejectment petition before the Rent Controller, Nowshera Cantt against Mujeebur Rehman, tenant-appellant for the vacation of suit Shop No, 79 situated at R.A. Bazar, Nowshera Cantt. On the ground of personal need and default in payment of rent. The said petition was resisted by the tenant- appellant by filing written reply. The learned Rent Controller after framing issues recording pro and contra evidence of the parties allowed the eviction petition. The appellant was directed to hand over the vacant possession of the shop in dispute vide judgment/order, dated 3-5-2000.
3. Learned counsel for the appellant submitted that tenant-appellant was directed to be ejected on the ground of default while plea of personal need was rejected. He further argued that in fact no written rent deed was executed between the parties nor there was any practice of issuance of receipts in lieu of rent and the rent used to be paid on yearly basis as per understanding between the parties; that the landlord-respondent had filed four ejectment petitions against his tenants bearing Nos.487/RC, 488/RC, 489/RC and 490/RC of 1999 and in all the four petitions similar grounds of personal need and default are taken; that the landlord-respondent has miserably failed to establish the default. The appellant never remained defaulter, lastly rent was paid in the month of December, 1998. The respondent has other property/shops in Moti Bazar etc. Hence the ground of personal need being mala fide was overruled.
4. On the other hand learned counsel for the landlord-respondent submitted that burden was on the tenant-appellant to disprove the allegation of default which he badly failed to rebut. He could not produce single receipt as to the payment of yearly rent and that he had never paid rent after December, 1994. He further submitted that any practice of accumulative/lumpsum payment of rent does not confer any right or to exonerate him from regular monthly payment as it is violative to the mandatory provision of law, mode of payment is provided under section 17 of the Cantonment Rent Restriction Ordinance, 1963 and no one can escape from the mischief of the provision of law whereby it is given to understand that in presence of rent agreement deed the rent has to be paid every month before 5th of each Calendar month and in absence of rent deed the rent has to be tendered within sixty days whereas the appellant admits that he has not paid rent after December, 1998 which itself is admission on his part and he was thus rightly ordered to be ejected by the learned Rent Controller. He also submitted that identical type of eviction petitions were heard by his Lordship Mr. Justice Talaat Qayyum Qureshi regarding the property situated in the same vicinity which appeals of the tenants were dismissed and it is held by his Lordship that practice of lumpsum, periodical, accumulative rent if accepted by the landlord is condonation but not continuation of practice or amount to acquiesce or waiver. Learned counsel for the landlord- respondent in this respect placed his reliance on the following authorities:-- 1999 SCMR 20, 1971 SCMR 598, 1975 SCMR 355,. 1980 SCMR 506, 1984 CLC 393, 1998 CLC 1054, 1997 CLC 1531, PLD 1983 Kar. 196 and PLD 1989 SC 32.
5. I have heard the learned counsel for the parties at length, studied the relevant case law for and against very minutely. Although the case-laws on identical proposition may be in the field but every case is to be seen on its own facts and circumstances. While going through the judgment passed by the Rent Controller, Nowshera Cantt. I have seriously noticed that it is a non-speaking order. No evidence or any material whatsoever conducive to the stand of the respondent/landlord is discussed or referred. The findings on issue No,2 regarding default are given in a single sentence that the appellant-tenant in cross-examination admitted that he had paid the rent up to December, 1998. The Rent Controller failed to discuss the accumulative statement. His contention/explanation as to why he had not tendered the rent after December, 1998 till the institution of the ejectment application which judgment on the face of it is violative to Order 20, rule 5, C.P.C. Although the Civil Procedure Code in stricto senso is not applicable in rent cases but since being a judicial proceedings the Rent Controller is under bounden duty to apply his mind judiciously and reduce the judgment perfect in all means completely with all fairness and justice.
6. Secondly I have gone through the authorities referred by the learned counsel for the respondent/landlord which are quite distinguishable as the solitary statement of the respondent/landlord that too with one sentence without any substantial documentary or oral evidence, is not sufficient to draw a conclusion in his favour as there is a denial on the other side and that there is no written agreement deed between the parties. It is also not established on record that the transaction of receipts in lieu of rent was in vogue at that time though the landlord admits the execution of rent deed but failed to bring the same on record. No single documentary proof as to last payment of rent up to December, 1994 is brought on the record. Furthermore, no plausible explanation as to why he remained silent and mum for long 5-1/2 years despite the appellant-tenant stopped the payment of rent from January, 1995. No solid and cogent reasons advanced that why the tenant-appellant was allowed and let to sit and continue the tenancy over a long period without any return or payment of monthly rent. The above serious questions arisen during the course of proceedings before the Rent Controller but left unattended and unanswered.
There is also development in the statement of the respondent/landlord while he was subjected to cross-examination that the tenant remained defaulter in the past also and an ejectment order was passed by the Rent Controller against the brother of the appellant-tenant but the respondent/landlord patched up the case and the matter was resolved on new terms and conditions meaning thereby that the respondent/landlord had opted once before not to dispossess the appellant-tenant from the suit shop and allowed him to continue. Such deposition on the part of the respondent/landlord itself manifestly reflects and recoils the conduct of the landlord which also smackes mala fide. In the circumstances of the case burden was on the respondent/landlord to prove the issue of default and in the event the landlord successfully discharges his burden then it is to be shifted to the tenant, therefore, since the landlord failed to discharge his onus in the presence of allegation of understanding between the landlord and the tenant regarding periodical payment of rent in lumpsum, long and un-explained silence by the landlord in respect of payment of rent, the allegation of the landlord about the default becomes doubtful which benefit of doubt in such-like cases always goes to the tenants and thus the discretion vested in Rent Controllers under section 17(2) of the Cantonment Rent Restriction Act, 1963 is very much attracted and comes into play. Even otherwise if it is believed that there is default it clearly appears to be contributory and indicates negligence on the part of both.
7. All the more besides other eventualities as enumerated in section 17 of the Cantonment Rent Restriction Act, 1963 provide discretion in Controller of Rents as word ' may' is used. For ready reference section 17(2)(i) of the Act ibid is reproduced below:--- "17(2). A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that---
(i) 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; or".
8. The language of the section where word 'may' is used, is quite clear and incorporated in unequivocal terms by the Legislature. Where the law-maker intended to make the, provision mandatory, they have used word 'shall'. Section 17(5) of the Act supra provides that the Controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied he shall make an order rejecting the application. In the same context the Legislature had used distinct and different meaning from which the intention of the Legislature is quite obvious and straight, separate words used envisage different result, therefore, section 17(2) of the Act ibid warrants permissive action while the other called for compulsive action. Henceforth the type of default as emerged is to be evaluated in the light of the relevant provisions of law on the subject. The word 'may' for the purpose of discretion was intentionally inserted by the law-makers specially in case of non-payment for the reasons that the question of default in any case if proved and the issue is decided in favour of the landlord, the Rent Controller during the proceedings under section 17(8) of the Cantonment Rent Restriction Act, 1963 on the first hearing of proceeding or as soon thereafter as may be but before the issues are framed, shall direct the tenant to deposit in his office before a specified date 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 and continue to deposit the monthly rent which subsequently becomes due and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately. Subsection (9) envisages that if the tenant fails to deposit the amount of rent before the specified date 6r, as the case may be, before the 5th day of the month, his application, if he is a petitioner, shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings.
9. The above sections of law ostensibly postulate that during the proceedings the petitioner who alleges the default able to receive the arrears of rent and future rent for the subsequent months, in a way grievance of landlord is redressed, therefore, discretion is conferred on Controller of Rents so that he should see the nature of default as to whether the tenant is chronic and wilful defaulter and whether he is a cause of constant nuisance and mental torture being not regular paymaster when it is the source of income for the landlord.
9-A. Experience shows that the landlords usually feel pleased to take the Rent Tribunals as Post Office so that landlords just throw a letter to reach its destination automatically, which practice is otherwise illegal and against the norms of fairplay, justice and good conscience. It is laid down time and again for the guidance of subordinate Courts/Tribunals that while dealing with the rent cases they should apply their mind properly. It is incumbent upon the Controller of Rents to scrutinize and analyse the available evidence and material with great care and caution and sift the grain from the chaff leaving no place for doubt. The purpose and theme of the Rent Restriction Act is to control and regulate the dealing between the tenants and the landlords, to ensure the regular monthly payment of rent to the landlord on the one hand and to secure and protect the tenant from illegal and unnecessary ejectment leaving him shelterless without any cogent reasons, on the other hand. The Rent Controller though persona designata but he is supposed to act and proceed judicially and is not allowed to play with the valuable rights of parties. The Rent Controllers are also not given unbridled, unarmed and naked powers to act the way they like as per his whims and wishes. For that matter I am fortified by the following direct authorities by the Hon'ble apex Court of Pakistan quite identical on the subject whereby it is given to understand that onus is always on the landlord in cases of default when there is denial on the part of the tenant and there is trivial and minor doubt and in that discretion is to be exercised in favour of tenant and non- production of receipts is no ground for granting relief to the landlord:--- Muhammad Shafi v. Iqbal PLD 1965 (W.P). Lah. 23 by his Lordship Mr. Justice Sajjad Ahmad.
"(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(2)---Application for ejectment on ground of non-payment of rent---Circumstances and evidence not sufficient for coming to definite finding about non-payment---Doubt to be resolved in favour of tenant---Mere non-production of receipts---No ground, in circumstances of case for recoding finding in favour of landlord".
Abdul Aziz v. Abdul Ghani 1986 SCMR 1857 ' "Default in payment of rent---Petitioner landlord himself adopting practice of receiving arrears of rent in lump sum---Such practice in, vogue from very beginning of tenancy---Though rent had not been paid by respondent-tenant to landlord as required under the law yet conduct of landlord himself was such which furnished sufficient justification to Appellate Court to exercise its discretion against him in dismissing his eviction petition---Conduct of tenant not making him a wilful defaulter".
Sirajud Din v. Floor Muhammad PLD 1987 Quetta 165.
' "S.13(2)---Word "may" in S.13(2)---Connotation---Technical default---Rent Controller is obliged to determine whether it was necessary to direct ejectment of tenant and exercise discretion one way or the other, on evaluating facts available on record---Where while granting relief in such a matter, Rent Controller had merely observed that 'since issue of default was proved, therefore, tenant was liable to ejectment' such order, held, was contrary to law".
Inayatullah v. Zahoorud Din 1987 SCMR 1313 ' "Default in payment of rent for 2 months---Wilful default---Record showing that landlord deliberately created difficulties in the way of tenants by not accepting the rent in the hope that some omission or slip on the part of the tenants may enable him to carve out a ground for their eviction---Conduct of tenants indicated no element of negligence on their part---On refusal to receive the rent tenants reasonably adopted the alternate prescribed mode of tendering rent by way of depositing same with the Rent Controller consistently---Tenants, held, were not wilful defaulters in circumstances".
Sitaldas and 2 others v. Haji Muhammad Saffar PLD 1984 Kar. 87 ' "(b) S.13---Default---Landlord remaining absolutely silent for about 2-1/2 years---No plausible explanation giving for such delay---Tenant alleging payment of rent regularly and landlord's refusal to accept rent only for one month before filing of ejectment petition which was tendered through thoney order, and on his refusal to accept same tenant deposited rent in Court--- Default on part of tenant, held, not proved".
10. In the wake of the above discussion and the case-laws referred hereto I am convinced that the Rent Controller was under obligation to exercise discretion in favour of the appellant-tenant.
11. As such this appeal is accepted, the order impugned, dated 3-5-2000 passed by the Rent Controller, Nowshera Cantt. Is set aside and the ejectment petition dated 18-5-1999 filed by the respondent-landlord is dismissed. However, the appellant-tenant is directed to be careful and vigilant for future. He shall pay the monthly rent regularly to the landlord without fail on each calendar month with no excuse whatsoever. No order as to costs.