' The facts giving rise to this appeal are as follows. The respondent Syed Basharat Ali who claims to be the owner/landlord of 2 shops constructed on Custodian Survey No.IB/417 at Chaman Incline, Khandiaro District Nawabshah, had let out shop No.2 to the appellant Abdul Haq on monthly rental of Rs.45. On 12-9-1978 the aforementioned landlord brought an ejectment application seeking ejectment of the said tenant on four grounds namely, default in payment of rent; demolition and reconstruction of the shop, conversion of the shop into a godown and personal requirement.
' In this written statement the appellant Abdul Haq denied that shop in question was let out to him.
According to the plea taken by him the disputed shop was rented out to his son, appellant Zaheeruddin. In view of this stand taken by appellant Abdul Haq, the respondent moved for amendment of his ejectment application which was accordingly allowed and Zaheeruddin was joined as a party. The ejectment application was resisted also by the appellant Zaheeruddin who denied the allegations contained in the application.
' The learned Rent Controller after considering the evidence adduced by both the parties allowed the application only on the ground of default in payment of rent, deciding all other points in favour of the appellants'. Being aggrieved by the order of the learned Rent Controller the appellants preferred the present appeal. However the respondent filed cross-objections challenging the decision of the learned Rent Controller with regard to requirement of the disputed shop for his personal use.
' Mr. Nariandas was heard in support of the appellants' case whereas Mr. Syed Inayat All submitted his arguments on behalf of the respondent. It was submitted by the learned counsel for' the appellants that controversy with regard to default in payment of rent is confined to the rent for the months of May and June 1978. This is not disputed by the learned counsel for the respondent. It is also an admitted position that the rent for the said two months was tendered to the respondent/ landlord within the month of July 1978. In this connection reference may be made to money order coupon dated 17th July 1978 (Exh.73) which clearly shows that the rent for the months of May and June 1978 was remitted by appellant Zaheeruddin to the respondent Basharat Ali on the date carried by the money order coupon. As provided in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) in absence of agreement between the parties, the landlord can seek eviction of the tenant within 60 days from the date on which the rent is due but has not been paid. In the instant case there was admittedly no agreement between the parties about payment of the rent. Therefore the rent for month of May was due to be paid on first June and in the case of its default, the ejectment application was to be filed after 60 days from the said date i.e. by 31st July 1978. But as is evident from the money order coupon referred to above the rent for the months of May and June was tendered by 17th July 1978. Consequently there being no default on the part of the appellant, the application for their eviction was premature. The findings of the learned Rent Controller on the point of default were therefore erroneous and are hereby set aside.
' Further submission of the learned counsel for the appellants was that the cross-objections filed on behalf of the respondent on the question of personal requirement were incompetent and hence could not be taken into consideration. The learned counsel for the respondent did not seriously question the correctness of the above contention. He however submitted that respondent would be within his right to agitate the points which have been decided against him by the learned Rent Controller, even if no cross appeal or cross-objections were filed on his behalf. In support of this view he placed reliance on D.B. decision of this Court reported as Henry Stanley Ramsden and 2 others v. S.M. Fazail & Co. PLD 1964 (W.P) Kar. 290 wherein it was held:- "He pointed out and rightly that as the result of the suit had been in his favour he is entitled to raise all those questions which would entitle him to that result and to attack the findings of the learned trial Judge upon the other issues and this he could do without filing a cross appeal or cross- objections."
' The other authority relied upon by the learned counsel for the respondent was the case of Lahore High Court reported as Sh. Muhammad Ashraf v. Sh. Muhammad Almas PLD 1980 Lah.
52. This case involved several cases of ejectment under West Pakistan Urban Rent Restriction Ordinance, 1959 in which the tenants had filed appeal from the appellate orders of the Additional District Judge. The question arose whether the landlord could submit arguments on the points which had been decided against him by the lower Courts, even though no cross-objections or cross-appeal had been filed by the landlord. It was held:-- "The appeal before the learned Additional District Judge was governed by the provisions of section 15 which admittedly does not require or provide for any cross-objections. It provides for an appeal by an aggrieved party against an order from which that party is aggrieved. Whatever be the number of grounds taken in the application for ejectment the intention of the landlord is to secure ejectment of the tenant. If, notwithstanding the fact that some of the issues are decided against the landlord, or, the landlord according to the Rent Controller, otherwise proves some of the grounds and some of the issues covering the other grounds are decided in favour of the landlord, but the ultimate order of the Rent Controller is that of ejectment of the tenant, clearly he cannot be considered to be an aggrieved party for filing an appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance. In these circumstances there being no provision under section 15 about the filing of an appeal in the circumstances of the case by the landlord, the general principle of law that the landlord can support the ultimate order of ejectment on the grounds other than those which had been decided against him by the Rent Controller, will apply The order of eviction being in favour of the landlord he could not have filed any cross-objection or cross appeal and could only support the ultimate order of eviction by showing that the order of the Rent Controller on the issue of reconstruction could not be maintained."
' The question with regard to filing and maintainability of cross-objections was also considered in the case reported as Shafiq-ur-Rehman v. Abdul Ghani 1983 CLC 2020 wherein it was held: "It may be advantageous to deal with the question of maintain ability of the cross-objections. In my view, it is an academic question which does not require any detailed examination since respondent could have supported the ejectment even without filing cross-objections on the ground of personal requirement".
'The legal position that emerges from the above authorities is that in the case of ejectment filed under the Rent Ordinance, the successful party cannot go in appeal in respect of the points decided against such party, as the said party cannot be regarded to have been aggrieved by the order of the Rent Controller within the meaning of B the said Ordinance. There is no provision in the Rent Ordinance enabling such party to file cross-objections with regard to the decision of the Rent Controller on the points decided against the said party. However the said party can agitate the points decided against him in course of hearing of the appeal filed by the aggrieved party, while supporting the order passed in its favour.
' In view of the above the learned counsel for the respondent was permitted to argue on the question of personal requirement, even though the decision of the Rent Controller on that point has gone against the respondent. The contention of the learned counsel was the it was none of the business of the Rent Controller to go into the question of how the landlord would arrange to run business in the disputed shop. Therefore according to the learned counsel it was not the concern of the Rent Controller to see if the landlord's son would be available or not for running business in the demised shop. He submitted that the landlord, if so liked, could even engage some other person for that purpose. Accordingly the learned counsel argued, the learned Rent Controller erred in turning down the landlord's prayer based on the ground of personal requirement merely because the landlord was himself engaged in service and his son was still in College. I regret my inability to accept the above reasoning. When the prayer for eviction is based on the ground of personal requirement, it is the duty of the Rent Controller to ascertain through proper enquiry if the requirement of the landlord was genuine and was put forth in good faith. For the purpose of such enquiry he has to take into consideration all such factors which seek to throw light on the requirement of the landlord. Among other factors it would be relevant to consider the availability of suitable personnel for running business in the premises needed by the landlord for business purpose. In the instant case, it is the landlord's own case that the disputed shop was needed for business purpose and that his son would manage the business. In this connection reference may be made to the ejectment application filed by the respondent. Para. 7 of the ejectment application which is relevant reads as under:- "That the applicant is service man and his pay is insufficient to support his large family, so the shop is required to the applicant for his personal use bona fide, as his son has to run the shop and start some business for game."
' In his affidavit-in-evidence also the respondent has repeated the above assertions adding further that the shop was required by him for his personal bona fide use and that his son Iftikhar Ali would run some business in the shop.
'It is to be seen how far the respondent has succeeded in establishing his case. First of all reference may be made to the notice which the landlord had given to appellant Abdul Haq calling upon him to vacate the demised premises. The notice does not show that the respondent required the shop for his personal use. Not even a casual mention about his personal requirement has been made in the notice (Exh.54). Secondly the respondent's demand of the shop for personal requirement was obviously inconsistent with his plea that the shop was in dangerous condition and was likely to collapse at any time and therefore it needed to be demolished. In this respect the respondent has gone so far to say that even notice had been given to him by the Administrator, Town Committee Kandiaro requiring him to demolish the shop. He has also produced the notice (Exh.59) in support of his assertion. Furthermore it is admitted that his son for whom he required the shop was still studying in College at Khairpur. This only means that his son was not available for doing business in the disputed shop. All this clearly shows that the respondent's plea of personal requiremen` was neither bona fide nor was it made in good fail.
' In view of the above discussion I have come to an irresistible conclusion that the landlord has failed to prove that he needed the shop for his personal requirement. Thus, the findings of the learned Rent Controller on this point are correct and no interference by this Court is called for. In result the appeal is allowed with no order as to costs.
Appeal allowed.
1985 CLC 1433 [Karachi] &fore Saeeduzzaman Siddiqui, J MUHAMMAD ASHRAF and 6 others--Appellants versus Haji MUHAMMAD AHMAD and 3 others--Respondents Second Rent Appeal No.190 of 1981, decided on 29th January, 1985.
(a) West Pakistant Urban Rent Restriction Ordinance (VI of 1959)--' ---Ss.13(2)(i) & 15(4)--Second appeal--Default in payment of rent-- Discretion of Rent Controller to order ejectment--Rent Controller not bound to pass an order of ejectment of tenant where default in payment of rent was proved--Rent Controller has discretion to refuse to make an order of ejectment against tenant if default in payment of rent was neither wilful nor deliberate--High Court in second appeal, held, would not normally interfere with such exercise of discretion by Rent Controller unless it is found perverse, arbitrary or capricious. [P.1437] A
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- ---S.15(4)--Ejectment on ground of default in payment of rent--Discretion of Rent Controller to order ejectment--Tenant paying rent every month for two months and never defaulted in payment of rent rather paying in time or in advance--Question whether tenant bona fidely waited in view of past practice between parties that landlord's son would come and collect rent for one month, purely a question of fact which had been resolved in favour of tenant concurrently by Courts below--Neither any perversity in appreciation of evidence nor any misreading of evidence by Courts below found in arriving at conclusion, that default in payment of rent by tenant was neither wilful nor deliberate--Discretion exercised by Courts below in favour of tenant refusing to make an order of ejectment aganist him, held, could not be said to be either arbitrary or perverse so as to call for interference in second appeal.--[Evidence] [pp. 1437, 1438] -B, C & D Naqi Mirza for Appellants.
Saghir Hussain Jafari for Respondents.
Dates of hearing: 9th, 15th and 16th January,1985.
' This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the appellant landlord against the order of first appellate authority dated 21-10-1981 confirming the order of Rent Controller dated 13-2-1971 passed in Rent Case No. 1861/73 dismissing the application on the ground of default filed by the appellant against the respondent.
2. The apellant filed ejectment case against the respondent for his eviction from Shop No.S.B.4/55, Blankin Street, off Somerset Street, Saddar, Karachi, on the ground of default in payment of rent from May, 1973 onwards. The rent case was filed on 9th August, 1973. The respondent in his written statement denied that he has committed any default in payment of rent and contended that for the two years the appellant used to recover the rent from the respondent after every two months. It was also contended that according to the practice appellant No.1 used to come himself to collect the rent from the appellant and therefore, he should have come to collect the rent on 31st July, 1973.
However, as the appellant No.1 did not come to collect the rent the opponent sent his son Farid Ahmed to appellant No.1 with the rent for two months which the appellant No.1 did not accept on the excuse that he has no receipt book at that time and that be will himself come to the respondent's shop for collecting the rent as soon as the rent book is available. It is further alleged that after waiting for 2/3 days the Respondent's son again approached the appellant and offered him rent but he declined to accept it on the same excuse. Therefore the respondent sent the rent by money order on 9th August, 1973 but it was refused by the appellant. Again on 23rd August, 1973 rent for 3 months was sent but it was also refused. The respondent thereafter started depositing rent in Court from 2-9-1973. The Rent Controller after hearing the parties came to the conclusion that the default alleged against the respondent was not wilful and deliberate and that the respondent being a tenant for the last 30 years in the premises and the rent having been recovered on several occasions in lump sum it was possible that the respondent was misled by the past practice. The following reasonings were given by the Rent Controller while exercising discretion in favour of the respondent:-- "It is a matter of record that opponent sent the rent through money order (Exh.0-15) on 9th August, 73 that means only after 10 days from the period provided under Law. Since opponent is tenant of the applicants from last 30 years and had been paying rent in lump sum and it has been stated by the opponent that applicant's younger brother used to come to collect the rent and this appears me to be correct therefore, in my opinion the opponent might have remaind waiting for the brother of P.W. Ashraf to come to collect the rent. The sending of money order leads me to presume that the deceased opponent Mohammad Ahmed had sent his son to pay the rent and on refusal by the applicants he had sent this money order otherwise it does not appear proper to sent rent by money order just after a day of filing of this case. The amount of rent is so paltry i.e. Rs. 35, that it is difficult for me to believe that the opponent would had refused to pay the rent.
' In view of the above discussion and keeping in view the fact that in past rent of several months had been paid in lump sum and together and it has not been stated by the applicants that in past applicants also filed any ejectment case against the opponent in the ground of default I am of the considered opinion that it will be against the spirit of law and justice to hold the opponent as a wilful defaulter because there is only a delay of 10 days in payment of rent for the May of 1973 and there is no delay for the payment or tendering the rent of the subsequent months i.e. June 73 and others and in view of the above discussion I am of the considered opinion that it is a fit case where the Rent Controller must and should exercise his discretion judicially in favour of tenant findings on this issue accordingly."
' On appeal the first appellate authority agreed with the Rent Controller that the default alleged against the respondent was not wilful and refused to interfere with the discretion exercised by the Rent Controller in favour of respondent. The following reasons were advanced by the first appellate authority while refusing to interfere with the discretion exercised by the Rent Controller in the case in favour of the respondent:-- "The tenancy between the parties exists since last 30 years. The default if any is for only 10 days. The respondent has been paying the rent regularly in accordance with wishes of the appellants. The appellants have not complainted that the respondent is habitual defaulter. Not a single instance was quoted by the appellants showing that at any time the respondent had committed default in payment of rent prior to this one. In such situation the default does not appear to be wilful. In these circumstances respondent can be under a genuine impression that since the payment of rent is periodically and is collected by the appellants, a few days delay in payment of rent would not be considered default. Since the Rent Controller did not find the default to be wilful hence he refused to pass order of ejectment. In the given circumstances of the case I am of the opinion that the learned Rent Controller has rightly exercised the discretion judically. There is no justification for me to interfere with exercise of discretion by me."
' The learned counsel for the appellants contends that the default for the month of May, 1973 was established beyond doubt and the plea of the respondent that the rent was being collected for two months at a time should not have been accepted by the Courts below in view of the decisions in the cases of Mrs. Alim Ahmed v. Amir Ali PLD 1984 SC 32 and Syed Waris Ali Tirmizi v. Liaquat All 1980 SCMR 601. In evidence before the Rent Controller the respondent produced several rent receipts issued by the appellant which are Exhibited as 0/4 to 0/13. These receipts do show that the rent of the premises was being collected by the appellant from 1971 to 1973 for two months each time. The details of these rent receipts are as follows:- S.No. Date of receipt Month for which rent collected Amount
1. 14-10-71 Sept. and Oct.,71 Rs.68
2. 8-11-71 Nov. and Dec.,71
3. 13-1-72 Jan. and Feb.,72
4. 6-3-72 March and Apri1,72
5. 17-5-72 May and June,72
6. 18-7-72 July and August,72
7. 4-11-72 Sept. and Oct.,72
8. 15-1-73 Nov. and Dec.,72
9. 15-3-73 Jan. and Feb.,73
10. 31-5-73 March and Apri1,73 ' A perusal above receipts will show that the rent from 1971 till immediately before filing of the ejectment application was paid by the respondent for two months each time but all these payments were either within time or were made in advance. Therefore the plea of respondent that the appellant used to receive two months rent after 'expiry of two months does not find support from the evidence on record. However the discretion in favour of the respondent was exercised by the two Courts below not only on the ground that there was practice of receiving rent in lump sum after 2 months by the appellant but it is also basad on the consideration that there was no allegation of default against the respondent who is tenant of the premises for the last over 30 years, prior to the filing of ejectment application and the default alleged against the respondent was only in respect of one month and the delay in sending the rent for that month was for ten days only which was tendered by the respondent through money order immediately after he realised that the default has occurred. The Rent Controller in this regard also held that according to respondent the appellant No.1's younger brother used to come to collect the rent and therefore, it was possible that the respondent might have remained waiting for the brother of appellant No.1 to come and collect the rent which resulted in 10 days default in sending rent through money order by the respondent. The question, therefore which arises for consideration in the appeal is whether the exercise of discretion by the two Courts below in the above circumstances in favour of the respondent was proper or not and whether it called for interference by this Court in second appeal.
It cannot be disputed that under section 13(2)(i) of the Ordinance of 1959 the Rent Controller is not bound to pass an order for ejectment of tenant in all cases where default in payment of rent is proved. The Rent Controller in such cases certainly has a discretion which he has to exercise judiciously and in appropriate cases he may refuse to make an order of ejectment against the tenant if the default alleged against the tenant is found to be neither wilful nor deliberate. The second appellate authority will therefore not normally interfer with such exercise of discretion by the Rent Controller or the first appellate authority unless, it finds the exercise of discretion perverse, arbitrary or capricious. In the case before me it is clearly established that although the rent was being paid every time for two months by the respondent but he never defaulted in payment of rent and promptly paid either in time or in advance. The question whether the respondent bona fidely waited in view of the past practice between the parties that the appellant No.1's son would come and collect the rent which resulted in delay of ten days in payment of rent for one month is purely a question of fact which has been resolved in favour of the tenant by the two Courts below and there appears to be neither any perversity in the appreciation of evidence nor any misreading of evidence by the two Courts below in arriving at this conclusion. In these circumstances it cannot be said that the discretion exercised in favour of tenant/respondents by the two Courts is either arbitrary or perverse so as to call for interference by this Court in a second appeal. The learned counsel for the appellants relied on the case of Muhammad Alimullah v. Ziaul Hassan PLD 1973 Kar. 56 to contend that the discretion could be exercised in favour of a tenant by a Rent Controller only if it is found that the default committed by the tenant was for reasons which were beyond his control. The following passage from the above case is relied by the learned counsel in support of his contention:- "I have quoted the amendment, and its terms manifest the importance attached by the Legislature to the tenant's obligation to pay rent if it accrus, therefore in my humble opinion, the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent. The discharge of this statutory obligation by the tenant is a condition protection and, in my humble .opinion, he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13 if he was not able to trace his landlord's wareabouts despite reasonable efforts or if there was genuine dispute about the landlord's title. Again, if he has been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadvertence overlook his obligations. Similarly, the case of a tenant who can prove an estoppel of an agreement to pay rent at long intervals is much stronger. However, merely becuse a tenant has on a few occasions been allowed to pay rent "at intervals of time", this cannot possibly entitile him to invoke discretion under section 13. After all, if he is allowed to fall into arrears this is an indulgence on the landlord's part, and the recipient of an indulgence cannot claim any right or equity to its continuance. Similarly as the said Ordinance imposes an obligation on the tenant to pay rent as it falls due, he cannot be allowed to escape this obligation by invoking discretion."
' A close reading of the above passage will however, show that there could be cases where a tenant has been regular in payment of rent for a long period but through inadvertence fell into arrears of rent for 2 or 3 months at one time and in such cases the Rent Controller could validly exercise discretion in favour of tenant. In the present case the rent for the months of , May, June and July, 1973 was remitted on 9th August, 1973. The remittance of rent on 9th August, 1973 was within time in so far the rent for June and July was concerned. However, the default if any, was only in respect of the month of May, 1973 and that too was only for ten days. The two Courts below took into consideration this delay and looking to the circumstances of the case that the respondent was a tenant for over 30 years in the premises and has been regularly paying rent to the appellants, they reached the conclusion that the default was not wilful. The Courts below also held that the respondent waited bona fidely in view of the past practice for the appellant to come and collect the rent. The exercise of discretion on these considerations by the Courts below in favour of respondent could not be described as perverse, arbitrary or based on irrelevant considerations.
'In view of the above discussion I am of the view that no case for interference is made out in second appeal with the discretion exercised D by the two Courts below in favour of respondent and accordingly dismiss the appeal but leave the parties to bear their respective costs.