This Second Appeal from Order by the appellant-landlord calls in question judgment dated 22-12- 1977 delivered by the learned Additional District Judge, Lahore.
2. The facts necessary for the purposes of this appeal, briefly stated, are that Muhammad Mursaleen, respondent, is a tenant under the appellant in a portion of property No. S-64-R-85, Anarkali Bazar Lahore, under rent-note dated 30-3-1975 at a monthly rental of Rs.360 admittedly payable in advance by the fifth of each month. The rent-note is Exh. R. W. 6/2. This rent-note was executed on 31-3-1975.
The appellant, Hamid Ali Khan, instituted a petition for ejectment of the respondent from the premises in dispute on 21-6-1975 in the Court of the Rent Controller, Lahore on the grounds of default in payment of rent for the months of May and June, 1975 and subletting of a portion of the disputed property to one Lala Abdul Wahid watch-maker without the consent of the appellant.
This petition for ejectment was resisted by the respondent and on the divergent pleadings of the parties the learned Rent Controller framed the following issues :-
(1) Whether the respondent has committed default in payment of rent to the petitioner? O. P. P.
(2) Whether the respondent had sublet the property in dispute I O. P. P.
(3) Relief: The learned Rent Controller found both the issues in favour of the appellant-landlord, and, by his order dated 26-4-1976, accepting the ejectment petition with costs, ordered the respondent to make over the vacant possession of the premises in dispute to the petitioner within a period of one month from the date of the order.
Aggrieved by the order of the learned Rent Controller, the respondent went up in appeal to the learned Additional District Judge, Lahore, who by his judgment dated 22-12-1977, accepted the appeal and reversed the order of the Rent Controller.
Feeling dissatisfied with the judgment of the learned Additional District Judge the appellant has come up in Second Appeal to this Court.
3. Th. Learned counsel for the appellant contended- firstly, that the learned Lower Appellate Court after concurring in the findings of the learned Rent Controller as regards the issue of default in the payment of rent fell into an error in accepting the appeal and exercising the discretion of not ordering ejectment of the respondent-- tenant: Elaborating his contention the learned counsel contended that the learned lower Appellate Court clearly held that the default in payment of rent stood proved and yet it exercised the discretion in favour of the respondent-tenant and did not direct his eviction by taking into consideration matters which are not borne from the record of the case. He contended that the default of the respondent tenant was wilful as is apparent from the fact that he failed to pay or tender the rent for two months just after one month of the commencement of the tenancy; and secondly, that the respondent-tenant was obliged in law to pay or lawfully tender the rent for payment in accordance with the stipulations of the rent-note and failure to do so has of necessity to be held a wilful default. Reliance was placed in this regard on Syed Jahlur Rehman's and 7 others v. Mst. Rashida Begum and 10 others reported as PLD 1976 Kaf. 105, and Ansar & Co. v. Syed Jalllur Rehman's 1981 CLC1186.
4. On the other hand, the learned counsel for the respondent argued chat the rent even though payable in advance by the fifth of each month the default in law would have only been constituted if the rent for the month of May, 1975 had not been paid up to 15th June, 1975, and that for the month of June, 1975, up to 15th July, 1975. He placed reliance in this regard on Iltaf Husain v. Talib Husain (PLD 1977 Lah. 110).
Continuing his arguments, the learned counsel contended that the appellant-landlord appearing as A. W. 6 admitted that the tender of rent was made to him in June, 1975, and as such there was no default committed by the respondent in law. He further argued that Sheikh Rehmat Ullah R. W. 1, Sabihur Rehman's R. W. 2 and Muhammad Mursaleen R. W. 6 have have also affirmed that rent was tendered to the appellant.
The learned counsel for the respondent next argued that even if it be assumed that default in payment of rent had been committed, the exercise of discretion once made by the learned first Appellate Court should not be interfered with. Reliance was placed in this regard on Muhammad ldris v. Mst. Shah Jahan Begum and others (1981 SCMR 286).
5. In reply, the learned counsel for the appellant contended that default where the payment of rent is stipulated in the rent-note as payable in advance has been held by the Supreme Court to have been committed if the rent is not paid or tendered within 15 days from the date on which the rent was payable under the terms of tenancy. He in support of his above contention relied on Alif Dili v.
Khadim Husain (1980 SCMR 767).
The first point requiring determination in this case is whether default in payment or tender of rent stood proved or not.
7. It is the admitted position that according to the rent-deed the rent was payable by the fifth of every month in advance. The Supreme Court has already held in Alif Din's case that the rent where it is stipulated as payable in advance by a fixed date has to be paid within 15 days from the said date and non-payment or tender thereof within the aforementioned period constitutes default. In the aforecited case, it was observed that the rent for the month of July had to be paid by 20th of July and that of August by 20th of August and that the tenant having not paid or tendered the rent for those two months until the 18th of September was clearly a defaulter in the payment of rent within the meaning of clause (i) of subsection (2) of section 13 of the Ordinance.
8. In view of the above interpretation of law there is no scope whatsoever left for holding that in the case in hand default had not been committed. In the case in hand as well, there was default alleged as regards the months of May and June, 1975, and it is also the admitted position that the rent under the tenancy was payable by the fifth day of every month. That being so, the rent for the month of May, 1975 could be paid or tendered within 15 days after the 5th of May, 1975, and, similarly, for the month of June, 1975 within 15th days after the 5th of June, 1975, i. e. By 20-5-1975 and 20-6-1975 respectively.
9. Before disposing of the proposition under discussion, it appears appropriate to deal with the contention raised on behalf of the respondent that he had tendered rent within the stipulated period but it was not accepted by the appellant.
10. I am afraid this contention has no force. In so far as the testimony of the witnesses of the respondent, namely Sheikh Rehmat Ullah R. W. 1, Sabihur Rebman R. W. 2 and Muhammad Mursaleen R. W. 6 on this point is concerned, both the learned Rent Controller and the learned Additional District Judge have not given credence to the same. This is a discretion, which has been duly exercised by them and does not call for any interference. Otherwise also I do not find any reason to disagree with the findings of the learned Rent Controller and the learned Additional District Judge that their testimony is inconsistent and unspecific.
11. As regards the alleged admission of the appellant appearing as A. W. 6that rent was tendered to him in June, 1975 one will have to examine the context of the admission which is couched in the following words The above averment in the statement of the appellant is obviously qualified and the use of the words clearly establishes that the tender of rent was beyond the stipulated dtae, the admitted facts being that the ejectment petition had been instituted on 21-6-1975, whilst the rent, vide the terms of the rent deed, could be paid for May, 1975, up to 20th May, 1975 and for June, 1975 up to 20th June 1975. In fact this averment also goes to nullify the effect of the testimony of R. W. 1, R. W. 2 and R. W. 6 who avoided to give the specific date of the month of the tender of rent presumably knowing that that would go against the respondent. The above discussion therefore leads to the irresistible conclusion that the respondent had committed default in the payment of rent for the months of May and June, 1975.
12. It may also be observed that even if it be assumed that rent was tendered before 20th June, 1975, the default as regards the payment and tender of rent for the month of May, 1975, on the respondent's own showing, stood conclusively proved.
13. What is now left to be examined is whether the learned first Appellate Court despite having held that default had been committed was justified in setting aside the order of the learned Rent Controller directing the respondent to make over the vacant possession of the premises in dispute to the petitioner. In view of the Supreme Court judgment in Alif Din's case wherein default in the payment of rent for two months and deposit thereof in the next succeeding month resulted in the eviction of the tenant I do not find any justification for the exercise of discretion contrarily by the learned First Appellate Court, especially when the facts and attendant circumstances of the case in hand are identical.
14. Additionally; it may also be observed that it has been rightly pointed out by the learned counsel for the appellant that the factors which weighed with the learned first Appellate Court in exercising the discretion in favour of the respondent-tenant were not borne from the record of the case.
15. Examination of record has revealed that as regards the alleged regular payment of rent by the respondent-tenant to the father of the appellant, there is nothing on record except that in the cross-examination the appellant stated that previously the respondent was a tenant under the father of the appellant from 1966 at a rental of Rs.250 p.m., and, thereafter, he became tenant from 31-3-1975, vide rent-deed Exh. R W. 6/2 at a rental of Rs.300 p. m. He had further stated that the increase of rent was made by the respondent on his own and that no demand in this regard was made by the appellant. This last averment was presumably made to belie the plea of the respondent that the ejectment petition was made as a measure to coerce the respondent to enhance the rent.
The learned counsel for the appellant had also submitted during arguments that the point as regards the alleged regular payment of rent by the respondent to the father of the appellant was not in controversy directly in the issues involved and that is why the parties had led no evidence thereon and that reliance placed on this point by the learned lower Appellate Court was wholly inapt. The learned counsel had also referred to para. 3 of a copy of notice dated 9-7-1974 by the appellant's counsel to the respondent to show that the respondent was irregular in payment of rent.
16. Whatever may be the value of this copy of the notice one thing is clear that the material on record does not at all permit the drawing of an inference even remotely that the payment of rent by the respondent was regular since 1966. Contrarily, what was on - record was a rent-deed executed by the respondent in favour of the appellant on 31-3-1975. Where after the former paid rent only for one month and committed default in the payment of two months next following. In the face of the above position on record it could not be validly said that the respondent was regular in payment of rent. That being so, the very premises on which the exercise of discretion appears to have been based by the learned - lower Appellate Court is lacking. Resultantly it cannot be held that the discretion has been exercised judiciously.
17. Before parting- with the case, I may also observe that I do not feel persuaded to agree with the contention raised on behalf of the respondent that the exercise of discretion once made by the lower Appellate Court could not be interfered with by this Court in a Second Appeal. The exercise of discretion by a judicial forum can be held immune from interference by superior forums only if the same is made properly, judiciously and after due consideration of the material on record. The arbitrary and capricious exercise has never been held to be sacrosanct as the very nature of Judicial) proceedings demand that every thing should be decided objectively. The authority cited by the learned counsel for the appellant in support of his contention also in no manner advances the case of the appellant, and, in fact, it goes against the proposition put forth by him. From the cited authority of the Supreme Court reported as 1981 SCMR 286 it is readily deducible that perverse, arbitrary or capricious exercise of discretion is liable to be interfered with in a Second Appeal even though the exercise of discretion be concurrent by the Courts below. In the case in hand, not only the learned lower Appellate Court has exercised the discretion without any material being available on record as basis therefore but also its judgment is not concurrent with that of the trial Court, and, therefore, there exist all the more reasonable grounds to interfere therewith. Apart altogether from the above position, it tray also be observed that the exercise of discretion by any forum in disregard of the manner in which the Supreme Court exercised the same in identical circumstances has of necessity to be held illegal and improper. Needless to mention that the manner in which the Supreme Court exercise discretion in a particular case is a precedent and in any case a guiding principle to be followed by all the Courts an other forums in the Country to identical circumstances. Keeping in vie Alif Din's case, the exercise of discretion by the learned lower Appellate Court is obviously not sustainable and is liable to be interfered with by this Court in Second Appeal.
18. In view of the foregoing discussion I hold that the impugned judgment of the lower Appellate Court cannot be sustained. Accordingly accepting this Second Appeal, I set aside the judgment of the learned Additional District Judge dated 22-12-1977 and restore the order of the learned Rent Controller dated 26-4-1976. The respondent is, however, allowed two months time to deliver vacant possession of the premises in dispute to the appellant-landlord and in case of the former's failure to do so the latter shall be entitled to obtain possession through the process of the Court.
There wi11 be no order as to costs.