1. ' This appeal is directed against order dated 31-7-1986 passed by learned Senior Civil Judge-cum- Controller, Quetta whereby eviction application filed by respondent has been allowed on the ground of default, in payment of rent from October 1977 to April 1978.
2. Facts briefly stated are, that on 18-10-1978 respondent filed an application for the eviction of appellant from shop bearing Municipal No,8-11/17 situated on Kansi Road, Quetta on the ground of
(i) default in payment of rent from October 1977 to 30th September, 1979, and (ii) requirement of premises reasonably and good-faith for reconstruction. Appellant filed written statement on 13-2- 1980, specifically repudiating all the allegations. It was alleged that actually respondent wanted enhancement of rent, to which appellant declined. It may be seen that on 10-10-1977 appellant remitted Rs,600 through money order which was received by respondent. Subsequently another money order for Rs,750 was sent by appellant on 19-7-1979 which was however, refused by respondent, therefore, said amount was deposited in the Court. On the pleadings of parties following issues were framed on 15-3-1980:-
(i) Whether respondent has failed to pay or tender the rent with effect from October 1977 onwards?
(ii) Whether applicant requires bona fide and reasonably the premises in question for demolition and reconstruction?
(iii) Relief.
3. Respondent/landlord produced (A.W.1) Haji Sher Muhammad, (A .W.2) Mr. Muhammad Naseem Quadri, Municipal Engineer and (A.W.3) Abdul Majid, apart from himself to prove factum of default and bona fide requirement for reconstruction of the premises. Whereas appellant examined (R.W.1)
2. Baran, (R.W.2), Sahib Jan, (R.W.3) Abdullah Jan, and (R.W.4) Gulab Khan apart from his own statement to disprove question of default and requirement of respondent for reconstruction of new building. To substantiate mala fides an attempt was made to show that adjoining shop which is part of site-plan was factually let out to one Haji Rahim, during the pendency of present eviction proceedings vide lease-deed dated 2-8-1980. It is also alleged that said shop has common wall with shop in dispute, therefore, construction of new building as per site plan is possible only when both the shops available.
3. ' Learned Controller on the appraisement of evidence adduced by parties decided issue regarding bona fides for reconstruction, against respondent/landlord, however, appellant was found to have defaulted in the payment of rent from October 1977 till April 1978; entailing his ejection by means of judgment dated 31-7-1986. Present appeal was filed on 17-9-1986 challenging the same.
4. ' Mr. Azizullah Memon, learned counsel for appellant vehemently urged that:-
(i) Amount of Rs,600 remitted vide money order dated 10-10-1977 which was admittedly received by respondent was factually advance rent for one year. According to him again Rs,750 by way of advance rent for next fifteen months sent by money order on 19-7-1977 was unjustifiably refused by respondent. It is matter of record that Rs,750 indicating rent from November 1977 to January 1979 was deposited in Court through Treasury Challan dated 20-8-1977. Similarly, two other Treasury Challans (a) for Rs,300, dated 15-2-1979 showing rent from January 1979 to June 1979, and (b) second for Rs,600 dated 16-10-1979 indicating rent for the period from July 1979 to June 1980 prove tendering of rent by respondent before institution of eviction application. Learned counsel argued that anxiety of appellant to pay rent is reflected from his conduct. He thus, emphasized that no default was at all committed by appellant.
(ii) Learned counsel for appellant further submitted that trial Court has properly evaluated evidence concerning issue of reconstruction because respondent/landlord had failed to establish his bona fides and reasonable requirements in that behalf. Besides, according to him opposite- party was not competent to discuss the above issue without filing cross-objections.
5. ' Mr. Ehsan Jaffary, learned counsel for respondent on the other hand submitted that: -
(i) Money order dated 10-10-1977 for Rs,600 related to arrears of rent, therefore, even if money order dated 19-7-1979 or Treasury Challan dated 20-8-1978, is taken into consideration, appellant would be deemed to have defaulted, as observed in impugned judgment.
(ii) In an appeal under section 15 of Ordinance VI of 1959 appellant has challenged order of his ejectment, therefore, same relief can lawfully be supported on other issue as well, even if no cross- objections are filed. Besides it was alternately argued that written arguments were filed on 1-12- 1986 wherein propriety of observation in respect of reconstruction has been challenged, therefore, same can be treated as cross-objection.
(iii) He further contended that observations of Controller were defective and erroneous on the issue of reconstruction, and thus, sought eviction of appellant on that ground as well.
6. ' I have carefully perused the record and considered arguments advanced by counsel for parties.
7. Firstly, I would like to deal with question of default, which has been decided by trial Court against appellant. In order to properly appreciate the reasoning and conclusion about default arrived at by Controller, it would be appropriate to reproduce relevant portion from impugned judgment:- "Though the respondent has asserted that he sent rent in advance for one year, which was received by the applicant. Exh.R/6 is of Rs,600 which is rent for one year. But the respondent has not produced any evidence to prove that the rent sent through Exh.R/6 is advance rent. Further, no question was put to the applicant to the effect that the said rent was for which months. As far as Exhs. R/4 and R/5 are concerned the same is for October 1977 to December 1978. In view of the same, it shall be presumed that the first money order i,e, Exh.R/6 is for previous months and not for the period in dispute. The perusal of above said documents reveal that the rent remitted through money order Exh.R/4 and Exh.R/5 for months of October 1977 to December 1978 on 19-7-1978 is also of advance rent for the month of July, 1978 to December 1978. Thus, the same was duly tendered and also, deposited in Court on 20-8-1978, in time, therefore, there is no default for the said months.
8. Now the question of default remains for the months of October 1977 to June 1978. It is provided under law that the rent should be paid or tendered to the landlord within period of 60 days when it becomes due. In view of the same the rent for the months of May, 1978 and June 1978 is tendered in time. Therefore, there is no default for the same also. As far as rent for the months of October 1977 to April 1978 is concerned the same is not tendered or paid in provided period. Further, the respondent has also not produced any witness in this respect that he tendered the rent for said period but the applicant refused to accept the same. Thus, the respondent has committed default in payment of rent for the months of October 1977 to April 1978. Though the respondent has raised plea that the applicant has demanded enhancement in rate of rent, but none of his witnesses supported his plea. Further, in cross-examination the respondent has asserted that the applicant has told him that he cannot come to him for sum of only Rs,50. No witness is produced to this effect also, nor any suggestion was put to the applicant while cross-examining him.
9. ' The respondent has committed default in payment of rent for the months of October 1977 to April 1978. He has also failed to establish any reasonable cause due to which he was unable to pay or tender the rent of mentioned period within provided time. Default is proved. Issue decided in affirmative."
10. ' It may be seen that trial Court by making certain adjustments and deduction has opined that appellant has failed to tender rent for the months of October 1977 to April 1978. Obviously, it is admitted position, that first money order dated 10-10-1977 for Rs,600 was received by respondent whereas, second money order for Rs,750 dated 19-7-1978 was refused by him. Thereafter, appellant started depositing the rent in Court. In this manner undisputedly before institution of eviction application an amount of Rs,1,650 indicating rent from November 1977 till June 1980 also stood deposited through Treasury Challans dated (i) 20-8-1977, (ii) 15-2-1978, and (iii) 16-10-1979.
11. ' Learned Controller has treated appellant defaulter in payment of rent mainly because money order for Rs,600 Exh.R/6 did not indicate that said amount was advance rent, and secondly, subsequent money order for Rs,750 dated 19-7-1978 Exhs.R/4 and R/5 showed rent for the period commencing from October 1977 to December 1978. In the circumstances, it was observed that rent for the months of November to April 1980 was offered beyond 60 days when it fell due, as such appellant is a defaulter. It is surprising to note that although appellant in the written statement specifically asserted that Rs,600 sent through money order dated 10-10-1977 was advance rent, yet respondent/landlord has not even cared, to explain this aspect in his statement recorded on 24-3- 1984. He has contended himself by merely mentioning that rent from October 1977 onwards has not been paid to him by the tenant whereas evidence adduced by appellant suggest that consistent attempts for tendering rent were made by appellant indicating keenness to discharge his obligation in this behalf.
12. ' Anxiety of appellant is further reflected from the fact that after refusal of respondent to receive rent sent through money order dated 19-7-1986, same was deposited in the Court. Undisputedly, as per Treasury Challan, advance rent upto June 1980, stood duly tendered before institution of present eviction proceedings. Therefore, even if assertions for seeking adjustment of Rs,600 as advance rent was not entertained, and technical default was found to have been committed, it was obligatory for learned Controller to determine whether it was necessary to direct ejectment of appellant or not. Learned Controller was bound to exercise discretion one way or the other, on evaluating the facts available on record. It may be seen that while granting relief in this matter, the trial Court has merely observed that since issue of default is proved, therefore, tenant is liable to ejectment. Obviously such an approach is contrary to law. Because word "may" has been deliberately used in section 13(2) of Ordinance VI of 1959, thereby leaving a discretion with the Controller to direct ejectment or decline the same even when violation is proved. Apparently, Controller has discretion to condone the delay in payment of rent. Therefore, after satisfaction that default is committed by tenant, it was obligatory for the Controller to examine whether case was fit for exercising discretion or not, but this important feature has not been adverted to at all; on account of which impugned order is defective.
13. ' Now it has to be seen whether or not appellant is entitled to exercise of discretion in his favour. As already discussed, appellant remitted rent through money order dated 10-10-1977 and again on 19- 7-1978. However, on refusal to receive money order, rent was deposited in Court on 20-8-1978.
14. Similarly, advance rent upto June, 1980 was deposited on 16-10-1979, prior to institution of Eviction Application. All these circumstances clearly reflect anxiety of tenant to pay rent. Cumulative effect of all these factors leads to draw an inference that appellant cannot be dubbed to be exclusively responsible for delay in tendering rent. Manner of exercising discretion in favour of defaulting tenant has been discussed in numerous reported matters. It would be profitable to mention some of these cases:-
(i) Syed Mahmood Hussain v. Muhammad Saeed Khan PLD 1965 Lah.
15. 11.
(ii) Muhammad Shafi v. Iqbal Ahmad PLD 1965 Lah.
16. 23.
17. ((iii) Malik Abdul Aziz v. West Pakistan Publishing Company PLD 1965 Lah.
18. 82.
19. (iv)Faqir Muhammad v. Dr. Muhammad Yasin PLD 1964 Lah.
20. 686.
21. (v)Khawaja Ghulam Qadir v. Tajammul Hussain PLD 1964 Lah.329.
22. (vi)Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar 832.
23. (vii)Muhammad Ibrahim v. Mst Surraya Sultana PLD 1966 Lah.
24. 406.
25. (viii)Jan Muhammad v. Muhammad Ashrag 1980 CLC 698.
26. (ix)Muhammad Yamin v. Mashoorfullah Khan 1980 CLC 848.
27. (x)Muhammad Ramzan v. Muhammad Tufail 1980 CLC 753.
28. (xi)Amir All v. Mrs. Alima Ahmad PLD 1981 Kar.
29. 150.
30. (xii)Mst. Motibia Boman Irani v. Abbashoy Moosaji PLD 1978 Kar.
31. 851.
(xiii) Asian Traders v. Messrs Lakhany Brothers 1985 CLC 21.
32. Asian Traders v. Messrs Lakhany Brothers 1985 CLC 21. Considering the ratiodecidendi of abovequoted reports, and by applying the principle of law to matter in hand, I am inclined to hold that this is a fit case for exercising discretion in favour of appellant. The decision of trial Court in respect of this issue is accordingly erroneous.
33. ' It was next contended, that unless cross-objections are filed, opposite-party is not competent to challenge decision of trial Court on those issues which have been decided against it. This legal position has been strenuously disputed by learned counsel for respondent. Evidently principle for filing cross-objections is specified in Order XLI, Rule 22, C.P.C. Bare perusal of said provisions, indicate that order of trial Court can always by supported even in respect of points which are decided against any party without filing cross-objection provided any additional relief is not claimed. Principle of law in this behalf, as applicable to rent-matters has been considered in various cases, some of which are referred here.
(i) Nasiruddin Khan v. Abdul Majid NLR 1979 Civil Lah.
34. 551.
35. "8. I do not agree with the learned counsel for the respondent that in appeal or cross-objections were required to be filed by the appellant against the decision of the learned Rent Controller on the issue of default against the appellant. In fact, having succeeded in obtaining an order of ejectment in his favour the appellant had no right to file an appeal. He could have filed an appeal under section 15 of the Urban Rent Restriction Ordinance only against the final order of the Rent Controller and not against his finding on any particular issue. It was open to him to justify the order of the learned Rent Controller on any of the points decided against him by showing that the finding on such point was not legally warranted. He could thus, justify the order on issue No,1, I, therefore, repel this objection."
(ii) Muhammad Tufail v. Barkat Ali PLD 1967 Kar.
36. 151.
37. "5. The first and third contentions of counsel can be .Disposed of briefly. The third contention that the First Appellate Authority could not reject the appeal on a ground different from the one which was taken before the Rent Controller, in the absence of an appeal by the respondent against that order of the Rent Controller, is not sound. The Rent Controller had dismissed the application of the appellant, therefore, the order of the Rent Controller was in favour of the respondent. In these circumstances, the respondent could not go in appeal from that order. When the appellant preferred the first appeal, the respondent could support the order of the Rent Controller, on a different ground from the one on which the Rent Controller had given his decision. This is clear from Order XLI, rule 22, C.P.C. The Appellate Authority was thus, entitled to dismiss the appeal on the ground on which it has done so."
(iii) Shaikh Muhammad Ashraf v. Shaikh Muhammad Almas PLD 1981 Lah.
38. 52.
39. "14. In view of this, the argument of the learned counsel for the appellants without force. 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 Rent Controller on the issue of reconstruction could not be maintained."
(iv) Piyaro v. Din Muhammad 1983 CLC 958.
40. "4. (a) As regards the question of personal requirement, it has been contended by Mr. Rehman that since the respondent has not filed any appeal or cross-objection, he is not entitled to urge the question of personal requirement. However, since the present second appeal has arisen under the late W.P.U.R .R .0 , 1959 and as C.P.C. Is applicable to such appeals, the respondent can press into service the principle contained in Order XLI, rule 22, C.P.C. However, I am inclined to concur with the view found favour with the learned First Appellate Court, on the above ground."
(v) Khairati and others v. Aleemuddin and another PLD 1973 SC 295.
41. "It is no doubt true that a respondent can support a decree even on points decided against him but a respondent cannot attack a decree or ask for its variation without a 'ross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection."
(vi) Messrs Yousuf & Co. v. Mrs. Rashida Begum PLD 1975 Kar.
42. 684.
43. "8. All that was contended by Mr. Akhtar Mahmood, learned counsel for the appellants, was that this finding of the Rent Controller was not affirmed by the Additional District Judge, Mr. Ismail Munshi had nothing worthwhile to comment in that regard. However, as is to be found in Order XLI, rule 22 of the Code of Civil Procedure, a decree can be supported without filing cross-objection, by traversing any ground which the Court may have found against him. I am fortified in my view from Robert Cotton Association Ltd. v. Firm Inayatullah & Co. Gujranwala (5), a Division Bench case, wherein it was observed: "We accordingly overrule the objection raised on behalf of the appellants and hold that the plaintiff, respondent is within his rights to support the decree granted in his favour on any of the grounds decided against him in the Court below without filing any appeal or cross-objection."
44. From the discussion in abovequoted judgments, I have no hesitation to conclude that an eviction order passed by Controller can be supported, on issues which otherwise have been decided against respondent, to achieve ultimate eviction even if no cross-objections are filed in this case.
45. Consequently, objection of learned counsel for appellant being misconceived, must fail.
46. Learned counsel for respondent then argued that evidence sufficiently proved reasonability and bona fides for reconstruction of premises in dispute, but same has been misappreciated by the trial Court. Municipal Engineer has produced site plan duly approved by the Municipal Corporation.
47. Besides A.W.3 has stated that the shop in dispute is not in a good condition and respondent has adequate means to carry out reconstruction. Respondent has also expressed his preparedness to carry out construction in accordance with approved plan. The trial Court in rejecting this "issue" has observed that reconstruction of shop in dispute is possible alongwith adjoining shop, having common wall, which are evidently in occupation of other tenant. Genuineness of demand has been doubted on the plea that said adjoining shop was recently let out to Abdur Rahim on the basis of agreement dated 3-2-1980. With a view to contradict above impression, learned counsel for respondent has shown an undertaking given by tenant of adjoining shop to hand over vacant possession for enabling respondent to carry out reconstruction of the building according to site plan Exh.A/1. Although neither undertaking of tenant in the adjoining shop has been duly tendered in evidence nor any legal proceedings are instituted against him, yet it is confidently maintained that adjoining shop would be immediately available to respondent for construction of new building.
48. ' The existing building is admittedly of VII type, which is generally deemed to be of temporary nature. Besides evidence indicates that site plan has been got approved from Municipal Corporation, Quetta. Respondent has shown his willingness to reconstruct the building. In the circumstances, landlord cannot be deprived from improving his property specially when law has prescribed penalty for failure to carry out reconstruction apart from facility to get back possession of the portion of new building constructed over the old site. Right of tenant to occupy building after reconstruction has been elaborately discussed in following reported cases:- ' Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206; Zoab and 5 others v. Akbar Ali 1983 SCMR 391; Abdul Hadi alias Abdul Hadi Hasan and others v. Syed Ali Haider and others PLD 1983 SC 342 and Messrs Jugotekstil Impex v. Messrs Shams Textile Mills Limited 1986 CLC 879.
49. However, in the instant case, with a view to ward-off mala fides as apprehended by respondent, the time for vacating premises in dispute can be appropriately regulated. Evidently respondent/landlord is hopeful to get possession of adjoining premises on the basis of undertaking relied upon by him, therefore, interest of both sides can be conveniently safe guarded by allowing appellant to vacate the premises as soon as respondent obtains possession of adjoining shops. In this way objection of learned counsel for appellant that shop in question cannot be, constructed singly; will be met with. Additionaly penal liability prescribed under subsection (5) would also sufficiently safeguard right of appellant if reconstruction is not carried out by landlord after securing possession under the provisions of section 13(2)(iv) of Ordinance VI of 1959. In this behalf observations in cases (i) Messrs Zakria Brothers, Karachi v. Messrs Hashwani Sales and Services Ltd.
50. Karachi PLD 1978 Kar. 5 and (ii) Haji Umar Din v. Abdul Samad 1983 CLC 2234 are relevant.
51. Moreoever, after construction of new building over the site of existing shop, appellant can secure its possession within the preview of section 13(5-B) of Ordinance VI of 1959. Thus, taking into consideration all the factors I am inclined to hold that trial Court has incorrectly decided this issue in favour of appellant. Thus, respondent is entitled to possession of shop in dispute in the above terms.
52. ' For the foregoing reasons eviction application filed by respondent is granted only on the ground of reconstruction. Respondent on getting the possession of adjoining shop within a period not exceeding three years from the day, shall put appellant to notice of fifteen days; and if on receipt of such notice appellant fails to hand over possession of shop in dispute to respondent for enabling him to carry out construction subject to consequences specified under law, then respondent shall be entitled to move the Controller for executing the eviction order.
53. ' With aforementioned modification of the impugned order and subject to terms specified hereinabove, the appeal is dismissed. However, parties are left to bear their own costs.