1. ' This second rent appeal was by the owner of the premises against a decision given in first appeal setting aside an order of Rent Controller directing ejectment of the tenant on ground of rent- default.
2. ' Respondent No, 1 was tenant in possession of shop No, 1 Khazan Chand Street No, 49, Bhatti Chowk, Ichhra in Lahore City of which appellant Sardar Muhammad was owner/landlord. Appellant constructed six shops in a Block in the year 1975 and let out Shop No, 1 to respondent No, 1 in the same year at the monthly rental of Rs,300. In course of tenancy, monthly rent was gradually enhanced to Rs, 375 in April, 1980. On 29-7-1980, appellant instituted a petition for ejectment of respondent No, 1 from the shop in question on twofold grounds of causing damage to it and his requirement of the shop for the self-use of his son. Rent then payable was Rs,375 per month. During the pendency of the ejectment case, the dispute was amicably patched up between the parties and a compromise was reached between them. In terms of it, the shop was divided into two portions; one portion was vacated by the respondent/tenant in favour of the appellant and as regards other portion, respondent agreed to pay Rs,250 as rent per month with an annual increase at ten per cent. The compromise took effect from 1-10-1981. Per terms of compromise, first increase in the monthly rental was effective from 1-10-1982 i,e, rent at the enhanced rate of Rs,275 per month was payable from this date.
3. ' On 7-9-1983, appellant instituted a second petition for ejectment of respondent No, 1 on ground of rent default w,e,f, 1st of May, 1983. Upon commencement of ejectment case, a sum of Rs,1,275 as rent arrears was shown outstanding against respondent No,
1. At a later stage of the trial of ejectment petition, it was amended to include plea of sub-letting the tenancy. However, the plea was found against the appellant and did not survive for decision in second appeal.
4. ' Respondent No, 1 resisted the ejectment case against him and denied the allegations of rent default and plea of sub-letting the tenancy. His case was that rent due was paid regularly by him for the disputed period after deducting the increase on account of repairs carried out to the shop with the consent of the appellant who received the rent at the rate of Rs,250 per month without demur and issued receipts for it.
5. ' On 18-10-1984, Rent Controller settled following issues for determinations:--
(1) Whether the respondent paid or duly tendered the due rent for payment for 1-5-1983 to 31-8- 1983? OPR
(2) Relief.
6. ' On 23-2-1985, issue No, 1 was recast as given below:--
(1) Whether respondent has defaulted in the payment of rent due? OPA
(2) Relief.
7. ' Parties gave oral evidence of equal number of witnesses and testified as party witnesses in support of their respective cases. Additionally; rent receipts were also put in evidence. Upon scrutiny of the above material, Rent Controller found respondent No, 1 a rent-defaulter and decreed his ejectment on 14-12-1988. Under issue No, 2, sub-letting was not held proved. Against the eviction order, respondent No, 1 preferred an appeal to learned District Judge, Lahore. It was heard by a learned Additional District Judge who allowed it on 5-12-1990; set aside the ejectment order and dismissed the ejectment case. In this view, wilful rent default was not established. Thereupon, appellant came up in second appeal to this Court. It was admitted on 19-12-1991.
8. ' Point for decision in the appeal was, whether deductions for expenses incurred on repairs to the shop by respondent No, 1 were permissible for overlooking the pleaded rent default. A few facts given below bearing on decision of the point were not much in dispute between the parties: ' On the intervening night of 21st and 22nd May, 1982, shop caught fire. Its doors and lintel were damaged and furniture in it was also destroyed. Respondent No, 1 held appellant guilty for it and lodged a criminal case for it against him; his two sons and a few others under sections 436/448/506/149/148/511, P.P.C. On 23-5-1982. The accused were apprehended. Respondent No, 1 intended to repair the shop at his expense. Appellant prevented him and instituted a suit for perpetual injunction against him for prohibiting repairs of the shop. However, with the intervention of respectables of the locality, matter was compromised between the parties and on 4-6-1982, civil and criminal cases were withdrawn from the Courts. It was agreed in writing that the shop shall be repaired by the appellant and the furniture by respondent No, 1 himself. Appellant did not carry out his commitment. Hence, respondent No, 1 repaired the shop and the furniture in it. A sum of Rs,600 was spent on the repairs of the shop. Respondent case was that repairs were carried out with oral consent of the appellant and expenses were deducted from the annual increase in rent. Except for the expenses incurred on repairs and deducted from the rent increase, respondent No, 1 paid the rent due in time and appellant received it without raising any objection to it. The question for decision was whether he could be held guilty of wilful rent-default and found liable to ejectment from the rented shop on this score or that his default was not wilful and was condonable in exercise of discretion in his favour.
9. ' Respondent No, 1 was an old tenant of the shop. He held its tenancy since the year 1975. There was no dispute that repairs to the gutted shop were made by him from out of his own expense. There was also not much dispute that initially, the appellant was responsible for making the repairs to the shop with his own expense. In default of repairs made by the appellant, respondent No, 1 made them for bringing the shop in order for his business. It was correct that there was neither written consent of the appellant permitting respondent No, 1 to make the repairs to the shop nor an order obtained from the Rent Controller under section 12 of the Rent Restriction Ordinance, 1959.
10. Nonetheless, it was an agreed premise that repairs to the shop were made by respondent No, 1 and the appellant knew of them and did not object. It was also an easy inference that respondent No, 1 must have expended on the repairs the amount claimed by him. In the above context, lower appellate Court exercised discretion in favour of respondent No, 1 for overlooking a technical default. In this behalf, cases in Saleem J. Mufty v. Ghulam Sarwar Dawoodi 1985 M LD 992, (Karachi), Sh. Fazalur Rehman v. Muhammad Yousaf 1986 CLC 702 .(Karachi) were relied upon for condoning the rent default and saving the tenant from ejectment. Exercise of discretion by the lower appellate Court was neither perverse nor unreasonable. It was regulated by considerations properly bearing on its exercise in accordance with the object of law conferring it. It was always a different and delicate matter for an appellate Court to interfere with an order made by the lower Court in exercise of its discretion. Appellate Court was not at liberty merely to substitute its own exercise for the discretion already exercised by the lower Court unless it found that the discretion was exercised B arbitrarily or on a wrong conception of law. In the facts and circumstances of the instant case, exercise of discretion for condoning the rent default occasioned by deductions of expenses incurred on repairs from the monthly increase in the monthly rent was not injudicious.
11. Appellant received the rent C without increase and issued receipts without demur. His act encouraged respondent No, 1 and built a hope in him that he was justified to deduct the increase in monthly rent on account of expenses incurred by him on repairs to the shop in question. In my opinion, the default could not be termed wilful. D Unless it was so, ejectment could not follow.
12. Decision in Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 was also helpful in this behalf.
13. ' Having regard to the aforesaid, second appeal is found to have little merit in it and is dismissed without an order for its costs in this Court. Records shall be returned.