This writ petition impugns the order dated the 12th of July, 1982, of the learned Additional District Judge, Lahore, whereby he upheld the order of the Rent Controller, Lahore, dismissing the petitioner-landlord's application brought against the respondent-tenant for his ejectment.
2. The respondent's ejectment was sought on the grounds firstly that he failed to pay rent at the stipulated rate of Rs.1,200 per month for the preceding ten months; secondly that he altered the structure of the building without the petitioner's consent in contravention of the terms of tenancy; thirdly that he damaged the property by impairing its utility and value; and lastly that the petitioner needed it bona fide for the use of his son. The respondent contested the petition denying all these grounds. The Rent Controller dismissed the application holding primarily that the petitioner had been as a matter of course, accepting rent in lump sum at occasions and that the same negatived the alleged default. He also held that there was no structural change against the petitioner's consent nor damage caused to the property impairing its utility or value. Even the ground of personal need was decided against the petitioner. The learned Additional District Judge, as already remarked, dittoed those findings and hence the present writ petition.
3. Mr. Muhammad Rafiq Chohan, advocate for the petitioner submitted at the outset that rent for ten months, that is January, 1976 uptill November, 1976, was remitted to him by a money order after the filing of the present petition and that the same itself was sufficient to constitute default. He relied upon section 13(2)(i) of the Rent Restriction Ordinance, 1959, which, according to him, statutorily provided that in the absence of any agreement of tenancy, the rent for each month had to be paid latest within sixty days from the period for which it accrued due. He stressed that no course of conduct in accepting rent occasionally in lump sum could possibly allow a tenant to bypass this restriction and that he could not absolve himself by stating that such late acceptance of rent had had the effect of changing the- agreement of tenancy. He added that if any written agreement of tenancy was assumed to exist between the parties, the rent had to be paid within fifteen days after the expiry of the time fixed in the agreement and that in no case it could be asserted that the rent was legally tendered, say, five or ten months after its accrual. He relied upon Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 SCMR 262, Rehmatullah v. Mrs. Alia and others 1987 SCMR 579; Abdul Bari Siddiqui v. Syed Karim Hyder 1982 CLC (Kar.) 33; Muhammad Hamiduddin v. Feroz Ahmed and another PLD 1980 Kar. 337 and Soofi Muhammad Yasin & Bros., Karachi and another v. Dr. Major Abdul Ahad Khan PLD 1976 Kar. 1231 in support of his argument that accepting rent on two-three occasions in lump sum could not be employed as a change in the agreement of tenancy and that the tenant could not relieve himself of the liability of tendering rent either within fifteen days, or as the case may be, sixty days envisaged by subsection (2)(i) referred to above. He adverted attention to three notices which he allegedly sent to the respondent respectively in 1970, 1971 and 1975 reminding him of his legal obligation to pay, rent on time. He claimed that these notices in any way constituted sufficient evidence of his demand to abide by the terminal date of paying rent and that acceptance of rent beyond these dates did not have the effect of making these notices altogether nugatory. His point was that the rent had in all events to be accepted so long as the respondent-tenant occupied the premises and, therefore, late acceptance could not adversely affect his right to insist for payment thereof on time.
4. The other ground, namely, effecting alterations in the building against the petitioner's consent was equally pressed and support therefore was sought from the respondent's witnesses who here and there explicitly admitted to have constructed small rooms for purposes of letting them out.
According to counsel, no evidence was produced to show that these changes were brought about with the petitioner's written consent, nor had the learned Additional District Judge in his impugned judgment adverted attention to this issue. He claimed that there was abundant evidence to the effect that fourteen-fifteen small rooms were constructed by the respondent and that since at no stage the petitioner's conscent in writing was obtained thereabout, it constituted a legal ground in terms of Section 13(2)(u)(b) of the Rent Restriction Ordinance; 1959. He added that the so-called alterations impaired the building materially as also its utility falling under clause (iii) of subsection
(2) ibid. Referring to the impugned judgment, he asserted, that the legal consequences of the absence of his written consent and also impairing materially the building or its utility were not discussed at all despite their having been raised in the memo. Of appeal; and that neither the evidence on the point was read, nor was the legal result flowing therefrom determined. He contended that this was how the judgment was entirely vitiated in law calling for interference by thus Court in the present constitutional petition.
5. Opposing the writ petition, Sardar Muhammad Akram, Advocate, canvassed vehemently that it was a habitual practice throughout between the parties to receive rent at the petitioner's own convenience in lump sum periodically and that it was not open to him to take exception to it. He observed that not a single instance of receiving monthly rent was brought on the record suggesting heavily that it was habitually received in lump sum at intervals. He relied upon Sajjad A.I Khan and 2 others v. Peer Bux G. Mahar PLD 1972 Kar. 220 where lump sum receipt of rent as a matter of habit was held not to constitute default. He invoked Alif Dm v. Khadim Hussain 1980 SCMR 767 to claim that acceptance of rent periodically would condone default, if any, and that the landlord could not plead it as aground for ejectment of the tenant. Additionally he relied upon Muhammad Shafi v. Iqbal Ahmad and another PLD 1965 Lah. 23 to claim exercise of discretion in his favour by resolving doubt stemming from the situation. As regards construction or alterations in the building, he arrogated a right by virtue of the rule enunciated in Haji Sh. Fazal Elahi (represented by his hers) v. Sh. Muhammad Ayub and others 1982 SCMR 8 where in a tenement for a hotel, effecting suitable changes in the building, was held to be a condition implicit in the agreement. On this plane he tried to demonstrate that raising fourteen-fifteen rooms was just "suitable changes" to avail the optimum use of the building for hotelling. In this context he sought support even from the three notices served upon him by showing that none of them contained any grievance in regard to the alterations made in the building, meaning thereby that the petitioner had tacitly accepted them.
6. Considering the pros and cons, I eminently feel that the respondent--tenant was justified in urging that there existed habitual practice between the parites to receive rent at irregular intervals.
This view was reinforced from the petitioner's failure to prove any single instance of receiving rent or monthly basis, and this absence helps the repondent. The view taken in the Sajjad A.I Khan anti 2 others' case fully applies here. Similarly the inference that periodic receipts of rent would condone default, if any, as held in the Alif Din's case would be equally attracted. Still further, the doubt arising from the controversy has to be resolved in favour of the tenant and this was held in the case of Muhammad Shafi referred' to above. The contention that statutory provisions of tendering rent in fifteen days or as the case may sixty days in terms of section 13(2)(i) would not be of any assistance here because of the admitted conduct of the petitioner himself. He took no exception to periodic receipts of rent and the three notices to which he tried to give much importance, could not be of any use to him, for, those were obviously sent with no tenacity of purpose. Those were issued only three times and that too after long intervals meaning no business. The rents were received despite sending those notices, adhering to the habitual practice already obtaining between the parties. The various authorities cited by Mr. Chohan that acceptance of lump sum rent one or two times would not sweep away default are not much to the point because here an inveterate practice of receiving rent periodically in lump sum was established beyond doubt, and the same makes those authorities inapplicable. No exception could be taken to the view adopted by the Courts below on the point.
7. Mr. Chohan for the writ petitioner stressed the other ground with equal emphasis. He urged that the factum of alterations which by no means were small, peripheral, marginal or consequential had justified on his part to invoke subsection (2), clause (ii)(b) and clause (iii) of section 13 ibid. And that he was entitled to ask for the respondent's eviction on that score. He plied upon the grounds of appeal maintaining that a plea had been specifically raised that those alterations being against the petitioner's consent had had entitled him to get the relief. He remarked a bit bitterly that the learned Additional District Judge in his quite a sketchy and perfunctory order referred cursorily only to the two grounds, namely, default and personal need but totally ignored to read not only the respondent's admissions on the record relating to effecting those alterations withtout the petitioner's consent but also omitted to draw legal inferences therefrom. He was completely justified to stress that failing to record finding on this point by the learned Additional District Judge had vitiated the impugned judgment. Whether this contention was legally tenable or not was a different question but when it was urged in the grounds of appeal and when it tentatively found support from admissions made by the R.Ws., some inference should have been judicially drawn to determine the parties' respective rights. The opposite contention that the agreement being one for hotelling justified suitable changes as held in the Haji Sh. Fazal Elahi's case also deserved due consideration m the context but the lower appellate Court made no reference whatsoever to this' aspect. It is here where interference by this Court seems to be called for.
8. As a result, the writ petition is allowed, the impugned judgment is declared void and vitiated to the extent of failing to record a finding on the above--mentioned contentious point. The case is remanded to the learned District Judge, Lahore for fresh decision by himself or any Additional District Judge. Parties shall appear before him on the 11th February, 1989.