This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, raises a simple but important point which may possibly be of some practical interest. .
2. The respondents Nos. 1 to 4 are the owners/ landlords of a building known as 'Murtaza Chambers', situated on Plot No.S.13-1/1, Saddar, Karachi. The appellant who is a dentist is in occupation of Shop No. G-5, situated in the above building as a tenant of respondents Nos. 1 to 4 at a monthly rent of Rs.137.50, inclusive of betterment tax. On 31-10-1981 the respondents Nos.1 to 4 riled an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking the ejectment of the appellant and respondent No.5 on the following grounds:-- (i)Default in payment of rent with effect from 1-5-1981 to 31-10-1981.
(ii)Subletting of a portion of premises to Muhammad Rafique, respondent No.5, without their written consent.
(iii)Making addition and alteration in the rented premises, which are likely to impair the material value and utility of the premises.
3. The appellant resisted his eviction by controverting the allegations based on facts. It is pleaded by him that the respondents Nos. I to 4 who are difficult landlords have avoided to receive rent when offered to them. The rent remitted through money orders' was also not received, with the result that he had to deposit the same in the office of Rent Controller.
4.The parties went to trial on the following issues:-- (i)Whether the application is not maintainable?
(ii)Whether the opponent No.1 has committed default in payment of rent as alleged by the applicants?
(iii)Whether opponent has sublet.a portion of premises in question to opponent No.2?
(iv)Whether opponent No.1 has illegally made addition and alterations in the rented premises?
(v)What should the order be?
5. The respondent No.1 examined himself (P.W.1). To rebut this evidence the appellant examined his son/attorney Lin Shan Thong (D.W.1), Ali Muhammad (D.W.2), Shahabuddin (D.W.3), Muhammad Shamsuddin (D.W.4) and lqbal Hussain (D.W.5).
6. On the assessm ent of evidence available on record the learned Rent Controller decided the issue of default against the appellant and consequently directed his ejectment from the demised premises within a period of 60 days. Issue Nos. (iii) and (it) were, however, decided in favour of appellant. This order dated 8-8-1988 is the subject-matter of the present appeal.
7. 1 have heard Mr. B.M. Bangush, learned counsel for the appellant and Mr. Mirza Waqar Hussain, learned counsel for respondents Nos.1 to 4. 1 have also gone through the record of the case carefully.
8. Para. 6 of the application for ejectment deals with the default in payment of rent. Muhammad Nawab, the respondent No.1, has testified about default in payment of real with effect from 1-5-1981.
The appellant has seriously contested this position by stating that respondents Nos. 1 to'4 avoided to receive the rent when offered to them personally and through his employee Ali Muhammad (D.W.2), with the result that the rent was sent through money orders which too were refused. It is the case of the appellant that the rent was then deposited in the office of the Rent Controller and consequently, he was not in arrears as alleged.
9. Admittedly there is no written agreement of tenancy regulating the relations between the parties. There is also no mutual agreement between the parties about the period fixed for payment of rent. Clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 19,79, deals with the question of default in the following words:-- '
'15(2). The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that -- (i)
(ii)the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of the such agreement, within sixty days after the rent has become due for payment."
110Subsection (1) of section 10 of the Sindh Rented Premises Ordinance, 1979,,lays down the period for payment of rent to the landlord in such an exigency in. The following words:-- "The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later then the tenth of the month next following the month for which it is due."
11. It is thus apparent that the grace period of sixty days as provided by clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, is to be reckoned from 10th of the month following the month for which the rent had become due.. It is thus obvious that the rent for the month of May, 1981 could have been paid by the appellant upto 10th August 1981.
12. Liu Shan Thong (D.W.1) who is the son and attorney of the appellant has testified about the circumstances constituting the background of this litigation. In para. Nos.10 and 11 of his affidavit- in-evidence Liu Shan Thong (D.W.1) has deposed about the efforts made by him to offer rent to respondents Nos.1 to 4. Ali Muhammad (D.W.2) who was an employee of the appellant has fully corroborated the version of Liu Shan Thong (D.W.1) about the attempts made to offer rent to contesting respondents. Shahabuddin (D.W.3), Muhammad Shamsuddin (DWA), and lqbal Hussain (D.W.5) who are employees of the Postal Department have testified about the money orders sent to respondent No.l.
13. The evidence of Muhammad Nawab (P.W.1) when examined in juxta--position to the version given by Liu Shan Thong (D.W.1) and his witnesses leads to the following conclusions:-- (i)That there was past practice for collection of rent by the landlords themselves.
(ii)That the evidence- available on record shows that all possible efforts were made by the appellant to tender rent.
(iii)That payment of rent was made by the appellant in terms of section 10 of the Sindh Rented Premises Ordinance, 1979.
(iv)That the default, if any, was not deliberate, which at best was techincal one not inviting penalty of such a serious nature.
14. Admittedly there was previous litigation between the parties and respondents Nos. 1 to 4 had sought eviction of the appellant on the ground that the disputed premises is required for the purpose of re-construction. In such a case the Rent Controller was obliged to have begun with an enquiry as to whether the application for ejectment out of which this appeal has arisen was filed to give support to earlier proceedings. There is nothing on record to even faintly suggest that the appellant was a chronic defaulter and was creating problems for the present landlords and also for the previous one, since the year B 1946, when he claimed to have occupied the disputed premises. I think, however, taking a fair view of this matter, the default, if any, was created deliberately. One of the important pronouncements on this point is to be found in the case of Inayatullah v. Zahoor-ud-Din, reported in 1987 SCM R 1313, where in the circumstances mentioned above, the tenant was not found defaulter.
15. As indicated in para. 11 ante, the appellant could have tendered rent to respondents Nos. 1 to 4 for the month of May, 1981 by 10th August, 1981. The money order receipt (Exh.0/1) and coupon (Exh.0/2) which are on record make it clear that the rent was sent to respondent No.1 on 31-8-1981, which was, however, refused. So even if the evidence of Muhammad Nawab (P.W.1) is taken on face value about the default made by the appellant to tender rent to him, there was default in payment of rent by 21 days only. That being so, why the discretion should not be exercised in favour of the appellant who is in occupation of this premises for the last 45 years. Mr. Mirza Waqar Hussain, learned counsel for respondents Nos.1 to 4 is, however, of the view that no such discretion can be exercised is the legislature by using the word 'shall' for 'may' used in section 13(2)(1) of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed) has taken away such powers available to therent Controller. To appreciate this agrument it is necessary to read section 13(2)(i) of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed), with section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979. The repealed law empowered the Rent Controller to order eviction of a tenant on the ground of default in payment of rent in the following words:-- "13(2). A landlord who seeks to evict his tenant shall-apply to the Controller for a direction in that behalf If the Controller, after giving the ' tenant a reasonable opportunity of showing cause against the application, is satisfied that-- 0)the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable; or (ii)
(iii) iv) ____
(v) - - - -
(vi) - - - - the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application.
16. Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979, empowered the Rent Controller to direct the eviction of a tenant on the ground of default in payment of rent in the following words:-- "15(2). The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:-, (i)
(ii)the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement within sixty days after the rent has become due for payment;
17. It may be added that in the earlier Ordinance the legislature had used two different words ' namely, 'may' and 'shall' while empowering the Rent Controller to direct eviction of tenants. A discretion vested with the Rent Controller while directing eviction under section 13(2), but no such discretion vested with the Rent Controller under section 13(3) because the words used are "the Controller shall make an order". No such distinction was however, made in section 15 of the Sindh Rented Prcmis,~s Ordinance, 1979, in which the word 'shall' has been used. Therefore, at first sight the contention raisedi by Mr. Mirza Waqar Hussain, learned counsel for respondents Nos.1 to A appears to be attractive. It is, however, a settled principle of law that words .May' and "shall" are interchangeable. In the case of Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others, reported in PLD 1972 SC 326, this question was considered by the Supreme Court and was answered in the following words:-- "It is now well settled that the words "may' and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance."
18. The Sindh Rented Premises Ordinance, 1979, as its preamble shows, was promulgated to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas. The preamble supplies a key to the interpretation of a statute and may be consulted to solve an ambiguity. The Sindh Rented Premises Ordinance, 1979, protects the interests of both the landlords and tenants it cannot be interpreted in a manner so as to defeat its very object. The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To concede that the Rent Controller will have no powers to condone a sm default even after it is found to be beyond the control of the tenant or it has H been created by the deceitful means of the landlord, would tantamount to denial of justice, which will be against the spirit and purpose of the Sindh Rented Premises Ordinance, 1979. With all humility, I am of the view that nobody can be penalised for the fault of the draftsman. In order to ensure the essential principles of fairness the exercise of discretion is always permitted except where such exercise is barred by law.
19. Both Mr. B.M. Bangush, learned counsel for the appellant and Mr. Mirza Waqar Hussain, learned counsel for respondents Nos.1 to 4 have referred to a number of authorities in support of their respective contentions about the default in paym ent of rent alleged to have been committed by the appellant, but I do not find it necessary to discuss them in detail, because it is a question of fact, in each particular case, whether the evidence adduced by the parties can or cannot be considered to be sufficient to record finding in one way or the other.
20. After giving the arguments addressed at the Bar rn~ anxious consideration, I am of the view that there was no default in paym ent of rent, as alleged, by the appellant and the delay in making paym ent, if any, was created J by respondents Nos. 1 to 4. The discretion is, therefore, exercised in favour of appellant and the application for ejectment riled by respondents Nos.1 to 4 against the appellant is dismissed.
21. In the result the impugned order is set aside and the appeal is allowed with no order as to costs.
H.B.T./L-66/K