' This petition under Article 9 of the Provisional Constitution Order, 1981 calls in question order dated 11-2-1984 of the learned Additional District Judge, Lahore, setting aside order dated 21-7-1983 passed by learned Rent Controller, Lahore Cantonment and ordering eviction of the tenant/petitioner on the ground of default, in payment of rent from 1-9-1979 to 31-1-1980 (four months). The petition arises in the following circumstances:- ' Abdul Majid landlord prayed for eviction of his tenant Muhammad Sadiq on the grounds:-
(i) Default in payment of rent from 1-9-1979 to 31-1-1980.
(ii) Personal bona fide use of the property.
(iii) Causing damage to the property, impairing its value and utility.
2. Ejectment petition was filed on 23-1-1980 which was resisted by the tenant who, through his reply, controverted the averments made in the ejectment petition. The controversy was put to the following issues by the learned Rent Controller Cantonment:-
(1) Whether the respondent is defaulter in payment of rent? O.P.P.
(2) Whether the shop in dispute is required for his own use and occupation in good faith? O.P.P.
(3) Whether the respondent has done act which has materially impaired the value, look and utility of the shop in dispute? O.P.P.
(4) Relief.
' Parties produced evidence of their own choice before the Rent Controller. All the three issues were found against Haji Abdul Majid, the landlord of the premises. Consequently, the eviction petition was dismissed by learned Rent Controller on 21-7-1983. Dissatisfied, this order of Rent Controller was assailed in appellate jurisdiction under section 24 of the Cantonment Rent Restriction Act, 1963 (Act XI of 1963) as amended. Learned Additional District Judge, Lahore vide his order dated 14-4- 1984 while maintaining the findings on issues Nos.2 and 3, reversed the decision arrived at on issue No.1 by the Rent Controller and ordered the eviction of the tenant on the ground of default in payment of rent with effect from 1-9-1979 to 31-1-1980 (four months). This eviction order passed in appellate jurisdiction has been assailed in constitutional jurisdiction. Findings on issues Nos.2 and 3 relating to personal use and damage to property subject matter of eviction petition have not been challenged by the parties. The dispute relates only to decision on issue No.1 which, in turn, relates to the question whether the petitioner/tenant has committed default in payment of rent, if so for what period. Further question that arises for decision is, in case default is proved, whether in the facts and circumstances of the case, the tenant was entitled to exercise of discretion in his favour.
3. I have heard learned counsel for the parties at great length and have examined the available record. Learned counsel for the petitioner-tenant has contended that admittedly there was no written subsisting agreement of tenancy between the parties. There was no date fixed for the payment of monthly. rent by tenant. It was a case of oral tenancy where no date for payment of rent was fixed between the parties. Consequently, the case would fall to be governed under section 17(2)(i) of Cantonment Rent Restriction Act, 1963. If so construed and understood, the petitioner has defaulted in payment of rent for a period of two months only and not for four months as found by learned Additional District Judge in his appellate order. The learned appellate Judge, therefore, proceeded to decide the issue of default in disregard of statutory provisions of section 17(2)(i) of Act XI of 1963. Presumably both the Courts below acted under misconception of the true provisions of law applicable to the case of default alleged against the tenant. Learned counsel further contended that the petitioner was an old tenant in occupation of The premises. His possession dates back to 28 years. Rent has, on different occasions, been increased which has now come to be fixed at Rs.100 p.m. It was further contended, that the landlord used to collect monthly rent at his convenience. A practice had developed between the parties whereunder the rent used to be paid sometimes for two months and at others for three months. Receipts issued by the landlord, according to the learned counsel, supported this practice which had regulated the conduct of the tenant in matter of payment of rent for the past several years. It was further submitted that the tenant, throughout this long period of tenancy, had never failed in discharge of his obligations in paying the rent to the landlord. In fact there was no such complaint against the petitioner tenant in this period. The tenant, therefore, was entitled to an exercise of discretion in his favour, if cummulative effect of all this material was taken notice of by the tribunals charged with duty of adjudicating the controversy. Had the question of default been properly examined, in reference to the provisions of section 17(2)(i) of Act, the tenant may have fully qualified for exercise of discretion in his favour. Learned counsel has contended that default simplicitor was no ground for ordering eviction. Discretion rests with the authorities in the matter and it is only in case of a wilful default that the eviction can be ordered. He has placed reliance upon the following two precedents:
(i) Altaf Hussain v. Talib Hussain PLD 1977 Lah.
110.
(ii) Ghulam Muhammad Lundkhore v. Safdar All PLD 1967 SC 530.
(iii) Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar.
56.
4. Mian Dilawar Mahmood, learned counsel for respondent No.1, however, contended that default for four months is proved on record. Practice alleged for payment of rent for two or three months together by the tenant was contrary to the plain provisions of section 17(2)(i). Even otherwise, it was the duty of the tenant to find out his landlord and to pay/tender the monthly rent due without any hesitation. It is not the intent of the law that the landlord should come to the tenant for collection of monthly rent. He placed reliance on the case of Mrs.Alima Ahmad v. Amir Ali PLD 1984 SC 32.
However, learned counsel did not address arguments on the remaining two issues.
5. It is admitted by the parties that neither there was written agreement of tenancy nor a date fixed for payment of rent. In this view of the matter the case will squarely fall within the ambit of section 17(2)(i) of the Cantonment Rent Restriction Act, 1963 (Act XI of 1963). The eviction petition as stated was instituted on 23-1-1980. Thus, calculated, at the time when the eviction petition was filed, the petitioner-tenant was in default for a period of only two months, i.e. September and October.
Learned Additional District Judge, therefore, erroneously found him to be a defaulter for a period of four months, from 1-9-1979 to 31-1-1980. In somewhat similar circumstances, this Court in case of Altaf Hussain v. Talib Hussain PLD 1977 Lah . 110 in second appeal, set aside an eviction order and remanded the case back to the Rent Controller for decision afresh. In the precedent case of Altaf Hussain. Rent Controller had found default proved for a period of three months whereas when properly calculated it was a default for one month only. In the circumstances it was observed by the High Court: - "The next question that arises is as to what is the effect of the above finding. It has now been held that the appellant was in default only for one month. The learned Controller and the first appellate Court on the other hand held that he was in default for three consecutive months. I do not agree with the learned counsel for the respondent that whenever there is a default even of one month, the Rent Controller is bound to order eviction. It is within his discretion after taking into consideration facts and circumstances of each case, to direct the eviction on a finding of default or exercise the discretion otherwise in favour of the tenant. I am also of the view that the length of period of default as also the circumstances whether it is a continuous period are some of the circumstances which may be noted when exercising discretion one way or the other. It is, therefore, certain that the two circumstances in this case found by the learned Rent Controller, namely, (i) three months default and that too, (ii) for a continuous period, must have influenced his mind when exercising discretion against the tenant. It is not certain whether, if he would have been aware that there is default only of one month and further if he would have noticed the other circumstances that when the rent for two months, namely, November and December, 1974 was sent to the landlord through money order he refused to accept the same, he would have still exercised the discretion against the tenant."
' In view of these observations, ejectment order was set aside and case was remitted to Rent Controller for decision afresh. In the case under consideration, the default for a period of four months has been found to exist against the petitioner-tenant by the learned appellate Judge. On examination, however, this finding is not found to be correct. Period of default extended to two months only. Learned Appellate Judge proceeded to order eviction of the tenant on the ground of default supposedly covering continuous period of four months. Had the learned Appellate Judge been aware of this important fact that the default extended to period of two months only, this may have weighed with him in exercising his discretion which vested in his Court. Learned Appellate Judge, 'therefore, proceeded on wrong premises in setting aside finding on issue No.
1. The resultant order, therefore,is not sus tainable. Writ petition is accepted, order dated 21-7-1983 of Rent Controller, Lahore Cantonment, order dated 14-2-1984 passed in appeal by learned Additional District Judge, Lahore are set aside and declared to have been passed without lawful authority. As a necessary corollary thereof, the case is remitted for decision afresh to the Rent Controller, Lahore Cantonment who will record his fresh finding on issue No.1 alone after affording an opportunity of hearing to the parties. Parties have also agreed on remand of the case to Rent Controller, Lahore Cantonment instead of its remand to learned Additional District Judge. This, according to them, will keep intact their one right of appeal. I am also of the same view. Parties are directed to appear before Rent Controller on 26-10-1984 for further proceeding. Parties are left to bear their own costs.