ORDER.
The petitioner, Muhammad Younis Malik, is occupying a portion of a building on the Link McLeod Road, Lahore. Respondent No. 2, Mst. Hameeda Aziz Khan, hereinafter referred to as the respondent, is the owner of that building. She made an application for ejectment of the petitioner, but the same was dismissed by a Rent Controller of Lahore. She, therefore, preferred an appeal before the District Judge, Lahore. The appeal was accepted and the petitioner was directed to vacate the disputed premises. Being dissatisfied with the order of the learned appellate authority, he has filed this constitutional petition.
2. The learned District Judge ordered eviction of the petitioner on the ground that the petitioner had not deposited rent in compliance with the order of the learned Rent Controller, under the first part of subsection (6) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, herein--after referred to as the Ordinance, that the premises in question were needed by the respondent for herself and her three sons for doing business and that the petitioner had not made timely payment of rent for September, 1979.
3. As for the finding of the learned District Judge that the petitioner had not deposited rent in terms of the order of the learned Rent Controller and, therefore, the petitioner was liable to be summarily evicted from the disputed premises, according to the said order, rent for the month of February, 1980 was required to be deposited in the office of the learned Rent Controller before 15th March, 1980, but it was actually deposited on 26th March, 1980. An application was, therefore, moved by the respondent for striking off the defence of the petitioner. It was thereafter that on 24th February, 1981 the petitioner made an application for condonation of delay in the deposit of rent. It was stated by him that he as well as his employee, namely, Shahid Latif, who was responsible for the deposit of the rent, had fallen ill and, therefore, there was delay in the deposit of rent. According to him, it was for the same reason that the petitioner had not received his quota of sugar in March, 1980. His plea had found favour with the learned Rent Controller and, therefore, he did not strike off the defence. The learned District Judge, however, gave detailed reasons for taking the view that the explanation offered by the petitioner was "fishy and made up" and that the medical certificates, etc. Produced by him did not inspire confidence. It was also noted by him that a "shabby attempt" had been made to dupe the Court by putting down ink on figure "2" in the treasury challan so as to show that the deposit in question was made on 6th March and not on 26th March, 1980, It was held by the learned appellate authority that the petitioner had not made timely deposit of rent "sheerly out of negligence for which there would be no possible leniency".
4. It was urged by learned counsel for the petitioner that it was dis--cretionary with the learned Rent Controller to condone delay in the deposit of the rent in question and that the learned District Judge had no jurisdiction to interfere with the order by which he (Rent Controller) had exercised his discretion in favour of the petitioner. He cited Amir Ali v. Mrs. Alima Ahmad (1) and Muhammad Yousuf v. Abdul Latif and 2 others (2) to support his contention. It was also maintained by the learned counsel that the learned District Judge had rejected the medical certificates without any justification. In addition, it was pointed out by him that the learned appellate authority had not taken into consideration Annexure "O", showing that the petitioner had not lifted quota of sugar for the month of March, 1980.
5. As for the proposition canvassed by learned counsel for the petitioner that the learned District Judge had no jurisdiction to examine the correctness or otherwise of the order of the learned Rent Controller whereby delay in the deposit of rent had been condoned, I am afraid the cases of Amir All and Muhammad Yousaf, cited by him to support that proposition, are of little help to him. The default involved in the cases under report was not in regard to an order passed under subsection
(6) of section 13 of the said Ordinance but a default as contemplated by subsection (2) of section 13 of the said Ordinance. In each of the cited cases it was found that the tenant had committed default in the payment of the rent to the landlord but in the circumstances of the case the learned Rent Controller had declined to order his eviction. The learned appellate authority had, however, while accepting appeal against the order of the learne3 Rent Controller, directed the tenant to vacate the disputed premises. It was observed by the High Court that in the circumstances of the case the exercise of discretion by the Rent Controller in favour of the tenant did not merit interference by the appellate authority. There is nothing in the judgment of the High Court suggesting that an order of the Rent Controller refusing to strike off the defence for delay in the deposit of rent in terms of his direction under subsection (6) of section 13 of the said Ordinance cannot be interfered with by the appellate authority regardless of the fact that there are no circumstances justifying the condonation of delay on the part of the tenant. The discretion available with the Rent Controller in the matter of striking off the defence is no in any way different from the discretion vesting in any other authority o Court. There is no dearth of authority on the point that if such discretion is not exercised judiciously the appellate authority is competent to interfere with the order passed in this behalf. There is nothing in the said Ordinance showing that order of the Rent Controller refusing to strike off the defence is final and cannot be called in question by or before the appellate authority. I am, therefore, unable to agree with learned counsel for the petitioner that the learned District Judge had no jurisdiction to interfere with the order of the learned Rent Controller whereby he had condoned delay in the deposit of rent.
(1) PLD 1981 Kar. 150(2) 1982 CLC 398
6. As for the medical certificates indicating that the petitioner and his employee, Shahid Latif, whose duty was to deposit monthly rent had fallen ill, they were brushed aside by the learned District Judge because, for the elaborate reasons recorded by him, they did not appear to be genuine. His reasoning, to my mind, is quite cogent. There is nothing in the medical certificates showing that the petitioner and Shahid Latif had been so in--capacitated that they could not even ask any one else to make timely deposit of the rent in question. Therefore, the medical evidence was of little avail to the petitioner.
7. I agree with learned counsel for the petitioner that the non-lifting of the sugar quota by the petitioner in the month of March, 1980 was not taken into consideration by the learned District Judge.. It is a matter of common knowledge that many a time such quotas are not lifted by those for whom they are sanctioned. There can be a host of reasons for such shortcomings ; one of them being that they are already possessed of adequate stock of sugar. 1t is also to be noted that the petitioner's failure to lift quota for a particular month could not be visited with any penalty such as the rescission of the order by which the quota was sanctioned in his favour. In the present case, in fact, the petitioner continued drawing his quota of sugar even after the month of March. As against this, his defence was liable to be struck off and his ejectment could be ordered in the event of late deposit or non-deposit of rent for, any month, in terms of the order of the learned Rent Controller.
The non-lifting of the quota cannot, therefore, be equated with the non-deposit of rent. In this view of the matter, even if the non-lifting of quota is taken into consideration the petitioner would not be entitled to condonation of delay in the deposit of rent.
8. The petitioner has not been able to establish that he could not make the deposit in question in time due to reasons beyond his control. Therefore, it cannot be said that his default was not wilful.
Accordingly, no legitimate exception can be taken to the finding of the learned District Judge that the petitioner's ejectment could be ordered by striking off his defence due to his failure to deposit rent in compliance with the order of the learned Rent Controller.
9. Assailing the finding of the learned District Judge on the issue of personal requirement, it was contended by learned counsel for the petitioner that the respondent was in occupation of upper storey of the building in dispute and, therefore, she was not in need of that part of the building which yeas in possession, of the petitioner. It was also pointed out by the learned counsel that the sons of the respondent were employed in the United States of America and they had not appeared as witnesses to support the averment of the respondent. These contentions were also raised before the learned District Judge but were repelled by him in the following words :- "The personal need of the landlady also appeared to be fairly established. The fact that none of her three sons was in the country or was examined as witness to elaborate his personal need could not suffice to hold against her. There is lot of authority on the point. 1980 SCMR 720 and 1981 SCMR 844 were to quote a few in support of it. The lower Court appeared to be unreasonably influenced by the absence of the appellant's sons from the country. The law does not insist that they should travel all this way long from their present jobs abroad only to satisfy a formality of appearing as a witness. Per--haps the provision in the statute that if premises are not occupied by the landlord within a stipulated period, the tenant would have a right of re-entry, provides a complete check to evictions on this ground. If, therefore, the appellant's sons ultimately fail to occupy the premises within the stipulated period, it will be open to the respondent to ask for re-entry. He cannot be heard saying that those sons in any event come as witnesses to speak about their needs. For all purposes their mother's testimony was sufficient. Nor can the appellant be denied of her property in question on the ground that she is presently occupying an upper storey of this very building. The choice is her's."
This reasoning of the learned District Judge, by and large, appears to be sound. It is noteworthy that according to the respondent she and her sons want to do business in carpets and such business can hardly be carried on in the upper storey which is now available with respondent. The finding of the learned District Judge on the question of personal need, therefore, does not call for any interference.
10. As indicated above, one of the grounds for which the petitioner's ejectment was ordered by the learned District Judge was that he had not paid or tendered rent for the month of September, 1979, within 60 days of its having fallen due. Rent for the said month was paid on 26th November, 1979. It seems that while holding that the petitioner had been a defaulter qua the payment of rent for the month of September, the learned District Judge counted the period of 60 days from the Ist of September although it was to be counted from the 1st of October when rent for the month of September had fallen due. Computing the said period from the 1st of October the payment of rent on 26th November, 1979 was within 60 days. I, therefore, do not agree with the learned District Judge that the petitioner had committed de--fault in regard to the payment of rent for the month of September.
11. The finding recorded by me just above, is, however, of little help to the petitioner because I have not found any thing wrong with the findings of the learned District Judge to the effect that the petitioner was liable to be ejected from the disputed premises for the reasons that he had not complied with the order relating to the deposit of rent and that the said premises were needed by the respondent and her sons. As a result, the order of eviction passed against the petitioner cannot be interfered with.
12. During the motion hearing of this petition, the respondent and her learned counsel, namely, Sh.
Zia Ullah, Advocate, remained present in the court room. At the end of the hearing when I asked them if they would allow some time to the petitioner to leave the disputed premises they stated that they had no objection to his vacating the same within a month. I, therefore, direct that the order of eviction passed against the petitioner shall not be executed for one month from today.
13. With these observations, the writ petition is dismissed in limine.