This constitutional petition arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by the petitioner against respondent No,1 seeking his eviction from shop bearing No,6, Main Bazar, Rehmatpura, Ferozepur Road, Lahore, which is in his possession as tenant under the petitioner. The ejectment petition was instituted on 7th March, 1979, in which it was urged that the rate of rent was Rs,300. The eviction was sought on the solitary ground that respondent No,1 had failed to pay rent with effect from 1st September, 1976 to 28th. February, 1979, was as such a defaulter. In the written reply filed by him, respondent Not submitted that the rate of rent was Rs,70 per month and that he was not a defaulter. The Rent Controller after framing the relevant issues recorded the evidence of the parties and came to the conclusion that the rate of rent was Rs,70 per month and that the petitioner had failed to prove that respondent No,1 was a defaulter. He, therefore, proceeded to dismiss the ejectment petition on 5th July, 1981. The petitioner unsuccessfully challenged this order by filing an appeal which was dismissed by the Additional District Judge, Lahore, on 6th February, 1983. Hence this petition.
2. Syed Najam-ul-Hasan Kazmi, the learned counsel for the petitioner contended that the impugned Orders suffer from misreading of record and non-consideration of material evidence which conclusively proves that the respondent No,1 had defaulted in payment of rent on his own showing. It is further argued that while non-suiting the petitioner, the Rent Controller as also the Additional District judge have failed to consider the law declared by the superior Courts in accordance with which it was for the tenant to prove that he had paid or tendered the rent. It was lastly maintained that the findings of the Tribunal below that the rate of rent was Rs,70 is not based on any legal evidence but is conjectural in nature. No one has appeared on behalf of the respondent to contest this petition.
3. In the ejectment petition, the petitioner had specifically urged that the rate of rent was Rs,300 per month and that respondent No,1 had failed to pay or tender the rent with effect from 1st September, 1976 to 28th February, 1979. While appearing as her own witness, she stated so on oath. By this denial, the initial onus resting on her stood sufficiently discharged and shifted to respondent to prove that he had paid or tendered the rent within stipulated period. The Rent Controller as also the Additional District Judge have held that some other evidence should have been produced by the petitioner to prove non-payment of rent, which is a negative fact. This approach is contrary to the law declared by the Supreme Court in Allah Din v. Habib (PLD 1982 SC 465). It is thus obvious that the Tribunals below have mis-directed themselves in proceeding to non-suit the petitioner.
4. Even otherwise, a perusal of the order of the Rent Controller and the judgment of the Additional District Judge shows that the matter has been dealt with by them in a cursory manner. Certain facts patent on the record have altogether been ignored from consideration. The learned counsel for the petitioner has in this respect submitted that even if the respondent had tendered the rent for the months of January, 1978 to April, 1978 through money orders which were allegedly refused by the petitioner, he was a defaulter as no effort was made by him to pay the rent for the subsequent period till 4th January, 1979 when the rent for the months of February, 1978, to December, 1978 was deposited with the Rent Controller on 4th January, 1979. According to the learned counsel as the rent for the months of May to September, 1978, had not been paid nor tendered within 60 days of the period for which the rent was due, respondent on his own showing was a defaulter. Unfortunately, this aspect of the case was not considered either by the Rent Controller or the Additional District Judge which have rendered their judgments to be without lawful authority.
5. There is also force in the contention of the learned counsel for the petitioner that dispute as to rate of rent could not have been decided merely on the basis that in the earlier proceedings for eviction, respondent No,1 had been directed to deposit rent under Section 13 (6) of the Punjab Urban Rent Restriction Ordinance, 1959, at the rate of Rs,70 per month. It needs no gainsaying that the determination under Section 13 (6) of the Punjab Urban Rent Restriction Ordinance, 1959, is purely tentative in nature and does not in any manner foreclose the final determination.
6. As a result of what has been said above, this petition is accepted and orders of the Tribunal below are declared to be without lawful authority and of no legal effect, with the result that ejectment petition shall be deemed to be pending before the Rent Controller and shall be decided afresh in accordance with law. The parties shall appear before the learned District Judge, Lahore, on 20th February, 1991, who shall entrust the case to a Rent Controller. As the matter has remained pending in different Courts for last about more than 11 years, it is directed that the petition shall be decided within two months from today. There shall be no orders as to costs.