The facts which form the background of these two appeals are that Muhammad Fariduddin is the tenant of house No, C-7/1, Pak Colony, Karachi. The house belongs to Mst. Tayyaba Khatoon. There is no dispute in this case about the existence of the relationship of landlord and tenant or the rate of rent.
2. On the 15th of January 1964, Mst. Tayyaba Khatoon applied for the ejectment of Muhammad Fariduddin from the above-mentioned house on three grounds, namely:-- (1)that Muhammad Fariduddin had committed default in the payment of rent, (2)that the house was needed for the personal use of Mst. Tayyaba Khatoon and her children, and (3)that Muhammad Fariduddin had damaged the house.
3. The Rent Controller ordered on the 1st of May 1964, that Muhammad Fariduddin should deposit arrears of rent before the 5th of May 1964 and continue to deposit the current rent before the 5th of every month. The current rent was deposited on the 6th of May 1964 and an application was made for condonation of delay. That application was accepted without notice to Mst. Tayyaba Khatoon.
4. On the 28th of September 1964, Mst. Tayyaba Khatoon applied that the defence of Muhammad Fariduddin be struck off for not depositing rent in accordance with the order of the Rent Controller.
On the 24th of November 1964, that application was rejected and the explanation of delay in depositing rent given by Muhammad Fariduddin was accepted. Mst. Tayyaba Khatoon filed Appeal No, 519 of 1964 on the 10th of December 1964 against that order. Before the decision of the appeal the main application of Mst. Tayyaba Khatoon was dismissed on merits on the 30th of April 1965.
She preferred First Appeal No, 422 of 1965 against the dismissal of the main application which was also dismissed on the 15th of February 1967. She has, therefore, filed Second Appeal No, 230 of 1967 which is now before me for disposal.
5. A few months after the institution of Second Appeal No, 230 of 1967, the First Appeal bearing No, 519 of 1964 which was filed against the interlocutory order was heard and accepted on the 26th of July 1967 on the ground that the excuse which was given for the delay was not true. Against that judgment, Second Appeal No, 450 of 1967 has been filed by Muhammad Fariduddin and is also now before me for disposal.
6. Against the background of the above facts I have heard counsel for the parties in respect of the two appeals. Mr. B. J. D'Sa argued that the first appellate Court has held in 1st Appeal No, 519 of 1964 that default in terms of sub-section (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was committed by the tenant by not depositing rent which is a finding of fact and does not in this case involve any question of law; therefore, that finding is not open to reconsideration in Second Appeal No, 450 of 1967. In these circumstances, he contended, the default should be regarded as enough for upholding the view of the first appellate Court and the result should therefore be that the judgment in First Appeal No, 519 of 1964 should be upheld and Second Appeal No, 450 of 1967 be dismissed. He further argued that if Second Appeal No, 450 of 1967 is dismissed, then it becomes unnecessary to hear Second Appeal No, 230 of 1967.
7. Mr. Saeeduzzaman has met the above contentions of Mr. D'Sa by advancing the argument that First Appeal No, 519 of 1964 was an appeal from an interlocutory order but the main application during the course of which the interlocutory order was made was itself dismissed after that appeal was filed and since interlocutory orders merge in final orders no interlocutory order was existing at the time of the hearing of the First Appeal. In support of this contention he has relied on Abdul Ghafoor v. Ahmad Kunhi . The relevant observations are as follows:-- Under the first part of subsection (6) of section 13, the Rent Controller while directing deposit of arrears and the monthly rent fixes the amounts in regard to both tentatively if there is a dispute.
Under the second part which may either be at the stage when the default is committed and the question of striking off the defence arises or when the proceedings are disposed of he is finally to determine the amount of rent due. In doing so he not only determines the period for which rent is due but also the rate at which the rent is payable. He is then to direct that the amount so determined be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. It is, therefore, evident that the order passed under the first part merges in the order passed under the second part. In this view it cannot be said that the former remains effective even after the latter order is passed."
8. From the logical point of view also it appears to be obvious that an order striking off the defence made at a time when either the main application has already been dismissed or accepted will neither be reasonable nor really effective. But in this case the order by which the main application was dismissed was also under appeal when the First Appeal No, 519 of 1964 relating to the interlocutory order was heard; therefore, the learned District Judge was justified in hearing and deciding it. The Rent Controller could also not be blamed for having proceeded with the hearing of the main application because he had held that there was no default in respect of depositing rent and there was no stay order.
9. I was required to decide whether I should dispose of Second Appeal No, 450 of 1967, which relates to the interlocutory order or Second Appeal No, 230 of 1967 which relates to the order by which the main application was dismissed. The choice appears to me to be immaterial because the tenant will have to be ejected if he fails in any one of them. His safety lies only in winning both the appeals.
10. In Second Appeal No, 230 of 1967 Mr. Saeeduzzaman explained that three grounds were urged by Mst. Tayyaba Khatoon for evicting Muhammad Fariduddin and that all of them were concurrently found by the Rent Controller and the first appellate Court to be without substance. The questions being of fact, according to Mr. Saeeduzzaman, their decision was not open to1 reconsideration in these proceedings.
11.Mr. D'Sa replied to the above argument by saying that the findings of the Rent Controller and the first appellate Court in respect of payment of rent are in reality not concurrent and that the order of the first appellate Court suffers from an inconsistency because the first appellate Court has held that rent was by agreement payable in advance. After coming to this conclusion the first appellate Court has expressed its views as following :- "The rent for the month of November became due on first of November and could have been paid within sixty days from this date, namely, before 1st January 1964. The respondent instead of remitting the money order on 1st of January sent it on 11th. It is obvious that he had committed default for the month of November only and the rent for December tendered within 60 days when it became due was within time, and also for the subsequent months remitted by money orders Exhs.
D/2 and 3 but were refused. It would have served no useful purpose in going on remitting the rent by money orders when the respondent knew the fate these would meet. Thus the respondent can be regarded a defaulter for November 1963, but the default for one month should not render him liable to be ejected."
Non-payment of rent was alleged by Mst. Tayyaba Khatoon with respect to November and December of 1963 and of January 1964. It is immaterial whether default with respect to December 1963 and January 1964, is found to have been committed or not, if it was proved that it was committed with respect to November 1963.
12.Mr. Saeeduzzaman tried to meet the above argument of Mr. D'Sa by saying that sixty days were to be reckoned from the date of the payability of rent. No time was fixed for the payment of rent excepting that rent was payable in advance ; therefore, the tenant was entitled to pay the rent within sixty days from the date when the rent was payable. This reply is beside the point because the first appellate Court has in this case allowed sixty days to the tenant and has held that the rent payable in advance for November had become due on or before the Ist of November 1963 ; therefore, after allowing the time of two months' grace to the tenant he was found to be under an obligation to pay it on or before the 1st of January 1964, but he actually paid it on the 11th of January 1964.
13.Mr. Saeeduzzaman next argued that if the failure to pay rent with respect to November 1963, was proved, then the Rent controller and the first appellate Court had the discretion to excuse it.
The first appellate Court has actually excused it by saying :-- "It is obvious that he had committed default for the month of November only."
But this has been criticised Mr. D'Sa. To my mind his criticism is right because neither the Rent Controller nor the first appellate Court has the power to excuse the breach of a statutory duty entailing penalty, after it is found to have been committed Mr. Saeeduzzaman referred to the judgment of the Supreme Court in Ghulam Muhammad Khan Londkhor v. Safdar Ali in which their Lordships have held that having regard to the language of subsection (6) of section 13 of the Ordinance, it was difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause and distinguished it by pointing out that in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 the word "shall" is used whereas in subsection (2) of that section the word "may" is used. He, therefore, drew the conclusion that if rent was not paid by a tenant under subsection (2) of section 13 of the Ordinance, then the Rent Controller as well as the first appellate Court had unfettered discretion to excuse it in the interest of justice.
14. My view as expressed in Hafi Ghulam Hussain and another v. Muhammad Rafiq and others still is that the word "may" which occurs in subsection (2) of section 13 of the Ordinance does not make the Rent Controller free to do as he likes. If such a meaning were given to the word "may", then the Rent Controller would be able to exercise unbridled and unguided power to do whatever2 3 he liked irrespective of the provisions of subsection (2). This freedom will be his not only with respect to the tenants who fail to pay or tender rent due from them, as envisaged in clause (1), but also to transfers of tenancy rights and subletting of the demised premises ; to using the premises for purposes other than those for which they were leased; to the violation of the conditions of tenure; to harm done to the value or utility of the premises; to commission of nuisance; to the departure of the tenants without reasonable cause from the demised premises for a continuous period of four months and to cases in which a reasonable and bona fide need of the premises by the landlord for reconstruction or erection of a building is proved, because the word "may" comes in the end of all clauses and sub-clauses of the subsection.
15.The relevant part of section 13 (2) of the Ordinance is as follows:-- "13 (2) If the Controller, after giving tenant a reasonable opportunity of showing cause against the application, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable ; or
(ii) the tenant has, without the written consent of the landlord,-- (a)transferred his right under the lease or sub-let the entire building or rented land or any portion thereof ; or (b)used the building or rented land for a purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord ; or
(iii) the tenant has committed such acts as are likely to impair materially the value of utility of the building or rented land ; or
(iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighbourhood ; or
(v) where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause or
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated the Controller may make an order directing he tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application."
16. In the opening sentence of the above quotation from the subsection, the words are: "if the Controller .. . . is satisfied" and in the first portion of its last part the word "may" occurs. In this context to interpret the word "may " as merely permissive or enabling, would make the exercise of the duty of the Rent Controller to satisfy himself that the violations or breaches enumerated in clauses (i), (ii), (iii), (iv), (v) and (vi) had taken place would be meaningless. For example let us take a case which falls under clause (vi) and suppose that the Rent Controller is satisfied, or has enough evidence before him to be satisfied, that the demised premises is reasonably and in good faith required by the landlord for the construction or erection of building on the site and that the landlord has also obtained the necessary sanction from the relevant authority, and ask ourselves the question : whether in such circumstances it would be open to the Rent Controller to refuse to make an order directing the tenant to put the landlord in possession of the demised premises? To my mind when all the requirements of clause (vi) are fulfilled it would be illegal for the Rent Controller to do so, because the word "may" in this context cannot be taken to be permissive or enabling in that sense. As soon as a situation comes to the notice of the Rent Controller in which the requirements of any clause or sub-clause of subsection (2) are satisfactorily fulfilled, it becomes his duty to act according to the guidelines provided by the positive provisions of law. Not to interpret the word "may" in this manner would amount to conferring the power of repealing the law on the Rent Controller in order to enable him to act according to his personal whims, fancies or ideas of justice.
17. A question would arise here as to what is then the import of the word "may"? It is true that "may" is not a substitute for "shall" and, therefore, the flexibility which it connotes cannot be disregarded. While conceding this much, we must also realise that the flexibility which it connotes is utilized sometimes by way of the "courtesy of the Legislature in dealing with the judicature", sometimes to convey a duty and sometimes simply to confer discretion. Its flexibility is the maximum when it confers discretion, but discretion does not mean wilfulness or thoughtlessness or waywardness. On the contrary, it connotes discernment and prudence or exercise of careful judgment. There can be no discernment or prudence or due exercise of judgment without first finding out or evolving sound guidelines. Where guidelines are provided along with the conferment of discretion, it is indiscretion to ignore from them. Jurists and Judges have again and again explained that discretion does not import uncontrolled and naked power but a tendency persists to look upon discretion as a loophole in a rule or law and attempts or sometimes made to use the existence of discretion as a weak spot in a well-considered provision and to exploit that supposed weak spot to defeat ifs guidelines. This is entirely wrong.
18.When discretion is conferred on a judicial or quasi-judicial authority, it means : judicial discretion. The word `judicial' limits and regulates the processes of discretion by confining them to the scope of law. Once a situation is found to be, or is such as must be held to be, permitted or prohibited in terms of the guidelines provided by law, it will be indiscreet and as such against law, to treat it or declare it to be otherwise. From the practical point of view a question will relevantly arise as to what is the difference between the existence and nonexistence of judicial discretion in respect of a provision, like subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, in which detailed guidelines are provided. The answer is that in such circumstances all relevant weaknesses of proof produced by either side and all relevant doubts in respect of strict compliance of the provisions should be resolved in favour of the party for whose benefit the discretion has been conferred. In the application of the provision now under consideration the benefits of all such weaknesses and doubts ought to go to the tenant. This does not mean that an established situation should be disregarded merely because it is unfavourable to the tenant or does not work as a kindness to him. In this case now under consideration we should note that the word "default" does not occur in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the days of grace for paying or tendering rent which may become due by agreement or otherwise are fixed; therefore, if it is duly proved that rent has not been paid or tendered in terms of clause (i) of subsection (2) of section 13 read with Explanation (b) to the subsection, the Rent Controller cannot excuse it, merely because in terms of the law failure took place only once. This would amount to introducing in the legislation some gratuitous failures in addition to the days of grace provided in it for paying or tendering rent.
19.I am, therefore, of the view that the first appellate Court could not excuse the non-payment of rent for November 1963. I, therefore, accept Second Appeal No, 230 of 1967 and set aside the order of the first appellate Court given in First Appeal No, 422 of 1965 and the order of the Rent Controller in Rent Case No, 322 of 1964, and direct that the tenant should hand over possession of the premises to Mst. Tayyaba Khatoon.
20.Second Appeal No, 450 of 1967 has now become infructuous, in view of the above decision of Second Appeal No, 230 of 1967. I may add that the view taken by the first appellate Court in First Appeal No 519 of 1964 of the default committed by Muhammad Fariduddin is in my opinion correct, but I dismiss Second Appeal No, 450 of 1967 as infructuous. In the above circumstances, the parties are left to bear their own costs.
21.Mr. Saeeduzzaman says that a certificate of fitness for preferring a Letters Patent Appeal may be granted, but I do not think that this is a fit case for granting such a certificate. He, therefore, requests that time may be granted to prefer an appeal to the Supreme Court and ejectment may be stayed in the meantime. This is a reasonable request. I, therefore, order that Muhammad Fariduddin may not be ejected from the premises in dispute up to the end of April 1971. PLD 1969 SC 424 PLD 1967 SC 530 PLD 1965 Kar. 468