' MUHAMMAD SADIQ LEGHARI, J.---The facts relevant to this order are that petitioner Abdul Latif is tenant of respondent No.1 Ghulam Nabi (hereinafter referred to as 'the landlord') in respect of residential Flat No.4, first floor, Subhanallah Manzil on Plot No.SR-2/11 Raghoo Street, Ramswami, Karachi (hereinafter referred to as 'the flat' or 'the demised premises') on monthly rent of Rs.45 only.
2. The landlord filed Rent Case No.1778 of 1998 before the VIII Rent Controller Karachi South for eviction of the tenant on the ground of deliberate default in payment of rent from 1-3-1996.
3. The tenant/the petitioner resisted the application and filed written statement denying therein the allegation of default. The learned Rent Controller dismissed the rent case after recording the evidence of the parties, by decision dated 7-4-2000. The landlord assailed that judgment through F.R.A. No.582 of 2000 before this Court which was later on sent to the District Judge, Karachi South in consequence of statutory transfer due to amendment in the law. There it was assigned No.119 of 2001 and made over to First Additional Sessions Judge Karachi South who accepted it by his judgment dated 18-10-2004 reversing the order passed by the Rent Controller. Through present petition the judgment of the appellate Court has been assailed.
4. While arguing the petition Mr. Ali Ahmed Tariq, the learned Advocate representing the petitioner contended that the impugned judgment is illegal for the reason that the learned appellate Court did not consider the evidence adduced by the petitioner/the tenant, giving the reason that he had not claimed the payment of rent in dispute in his written statement, The learned Advocate referred to the written statement filed by the petitioner/tenant specially its paragraph No.2 wherein the allegation levelled about the default was denied by a sweeping sentence in the very start of the paragraph. In the following lines it was claimed that the allegations about non-payment of the rent since 1-3-1996 were false. It was further stated that virtually the appellant/landlord had taken an amount of Rs.5,000 from the petitioner/the tenant but he did not issue its receipt despite persistent demand.
5. Mr. Khalil-ur-Rehman, the Advocate representing the respondent/the landlord supported the impugned judgment stating that in fact the petitioner/tenant had not claimed the payment of rent since 1-3-1996 in his written statement and had only claimed the payment of maintenance of the demised premises.
6. For proper appreciation of the contention, I consider it proper to reproduce the paragraph No.2 of the rent case and then paragraph No.2 of the written statement.
' Paragraph No.2 of the rent case:- "That from the very beginning the opponent above named is a chronic and habitual defaulter in payment of the monthly rent and he never paid the rent within time. Presently in spite of repeated and consistent requests/demands of the applicant, the opponent above named committed wilful and deliberate default in payment of rent since 1-3-1996 to 30-9-1998, accordingly arrears of rent amounts Rs.1,395 are payable outstanding against the opponent above named."
' Paragraph No.2 of the written statement-- "That the contents of para. No.2, are totally false hence denied; let the applicant be asked to put its proof, actually the applicant used to collect this maintenance amount in lump sum, sometime after 5-6 months, sometime after the expiry of one year, the allegation that opponent has not paid the amount since 1-3-1996 is false, actually the applicant has taken an amount Rs.5,000 from the opponent but has not passed its receipt to the opponent in spite of his persistent demands."
7. The para. Of written statement is denial of the commission of default. Use of the word maintenance does not mean the payment towards some other liability and admission of non- payment of the rent, specially when the landlord does not claim the tenant to be liable to pay maintenance. Moreover the plea about non-issuance of receipt despite demands shows the claim of the tenant to be of the payment of the rent.
8. The position became more clear from the affidavit of the petitioner/tenant filed in evidence denying therein the commission of default and claiming further that he had paid Rs.5,000 to the landlord towards the rent.
9. Despite all above the learned appellate Court adopted too technical approach and observed as under:- "Further the appellant/opponent/ tenant failed to give any plausible answer as to whether he did pay or not rent from 1-1-1996 to 30-9-1998. This plea of default has been raised in para.2 of the ejectment application, whereas in written statement in general and more specifically in para.2 of written statement no any claim of payment of monthly rent has been made nor any plea of dismissal of ejectment application is made in prayer clause in written statement. Thus when no plea of payment of monthly rent is made in the pleadings i.e. Written statement nor any plea for dismissal of ejectment application has been made then how the appellant/opponent can lead any evidence on this point. Reliance is placed on 1994 CLC 613."
10. The above observation and conclusion cannot be accepted. The learned appellate Court did not assess and appreciate the evidence on the petitioner's side nor did it record any conclusion about its truthfulness or otherwise therefore the judgment was passed without considering the evidence on the key issue of default. Thus it is not sustainable under the law.
11. Considering it relevant I invited Mr. Khalil-ur-Rehman to touch the aspect of the powers of the appellate Court to bring compromise between the parties or to allow the tenancy to continue after fixation of the enhanced rent under section 21 (1-C) and (1-D). He contended that the requirements of the two provisions are not mandatory. They are directory and if the Court did not exercise powers conferred upon it by the provisions the judgment cannot be treated bad due to that omission.
' For proper understanding the two provisions inserted in section 21, S.R.P.O., 1979 as subsections (1- C) and (1-D) are reproduced below: "Section 21(1) .............
(1-A)..............................
(1-B)..............................
(1-C) The appellate authority, may, at any stage of appeal attempt to effect a compromise between the parties.
(1-D) The appellate authority may, where it deems fit, before passing a final order allow the tenant to continue his tenancy subject to payment of enhanced rent fixed by the authority.
(1-E)
12. The above two provisions were inserted in the enactment (S.R.P.O., 1979) by way of subsequent amendment. They confer powers upon the Appellate Authority, which can exercise at its own or even at the request of any of the parties. No doubt word "may" has been used in these provisions and normally it implies what is optional/permissible, but here the provisions have scheme of resolving the dispute by bringing compromise between the parties or allowing the tenancy to continue by enhancing the rate of rent. Obviously, the scheme is not to be rendered unworkable by leaving the provisions inactive. Thus, the powers conferred upon a authority under a scheme being discretionary are coupled with duty and are not discretionary simplicitor.
12-A. Under subsection (1-C) the Court has to attempt for bringing compromise between the parties. Although the compromise can only be effected when the parties agree to its terms but the authority has to use its skill for bringing the parties to some solution/terms in order to achieve the object of the law. No matter, if the attempt fails. However, if the authority considers it futile exercise due to visible rigid attitudes of the parties or any of them or for any other reason it may not resort to such attempt.
13. Under subsection (1-D) the appellate authority shall apply its mind about the fitness of the case for exercising the power to allow the tenancy to continue subject to payment of enhanced rent fixed by it. After that it may exercise the powers in a case considered fit for that. The cases where the controversy at the appellate stage relates only or mainly to the rate or non-payment of the rent can be fit for the exercise of the powers under section 21(1-D). There may be the other cases also for exercise of these powers by the Appellate Authority. Thus the fitness of the cases for exercise of the powers depends upon the facts and circumstances of an individual case.
14. Since the provisions have their scheme the appellate Court is ordinarily required to exercise the powers conferred upon it by these provisions. The absence of an attempt to bring compromise may not but the non-application of mind about the fitness of a case for exercise of powers under sub section (1-D) may warrant the upsetting of the decision recorded on merits, in the cases which are fit for exercise of that power.
15. For the reasons mentioned above the appellate order is hereby set aside and the appeal remanded for proceeding with and deciding it in accordance with law afresh.