' This is a second appeal against the ejectment order. The relevant facts are that the respondent is owner of shop commonly known as S-64-R-112 Bakhshi Market, New Anarkali, Lahore. She filed an ejectment petition against the appellant on the ground of bona fide personal use, default and subletting. The appellant contested the ejectment petition. The learned Rent Controller accordingly recorded the following issues:--
(1) Whether the petitioner requires the shop in dispute for bona fide use and occupation of her son?
OPA
(2) Whether the respondent has defaulted in the payment of rent wilfully? OPA
(3) Whether the respondent has subletted the portion of shop in question to some Usman and Saeed? OPA
(4) Relief.
' The respondent examined Khawaja Amir Sohail as P.W.1, Khawaja Muhammad Aslam as P.W.2 and Mr. Muhammad Ramzan Chaudhary, Special Attorney appeared as P.W.3 while appellant examined Abdul Wahid as P.W.1, Usman Haider as R.W.2 and Tehmina Butt, her Attorney appeared as R.W.3.
The Rent Controller after hearing the arguments granted the petition vide order dated 4-4-1995, which was assailed through an appeal before the Appellate Authority, who dismissed the same vide order dated 27-11-1995. The appellant has filed thereafter the present appeal, which came up for limine hearing when pre-admission notice was issued to the respondent, who has entered appearance through Mr. Najam-ul-Hassan Kazmi, Advocate and contested the appeal. The record has also been requisitioned.
2. The learned counsel for the appellant argued that the Courts below did not exercise their discretion in the matter of default in accordance with the law and facts on record. The learned counsel in this behalf submitted that arrears as to enhanced rate were paid with the permission of the Rent Controller before the filing of the ejectment petition, the appellant was tenant in the shop for the last about thirty-five years, respondent did not appear while her Special Attorney P.W.3 did not utter a word as to the demand of rent enhanced rate and in any case a notice was necessary under section 5-A of the Rent Restriction Ordinance hereinafter to be called Ordinance of 1959. It was added that it is a personal right and amendment amounted to making a contract by a stranger, which is not permissible, even by the Legislature. Learned counsel in this behalf referred sections 106 and 107 of the Transfer of Property Act and Article 143 of the Constitution of the Islamic Republic of Pakistan, 1973. It was added that the appellant can challenge the same. Reference was made to the judgment reported as M/s. Meerpur Khas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd. And 3 others PLD 1987 Karachi 225. It was argued that according to section 9 of Ordinance, 1959 increase can only be made by the order of Rent Controller, therefore, the provisions of section 5-A was inconsistent with this provision. It was added that Ordinance, 1959 was enacted for the protection of tenant and amendment brought through section 5-A was against the object and spirit and as such amendment brought by section 5-A defeated the spirit and object of the law. It is added that law or provision for the benefit of parties cannot be varied. In this behalf reliance is placed on the judgment reported as Syed Masood Hussain and others v. Muhammad Saeed Khan and others PLD 1965 (W.P.) Lahore 11. In this context it was added that silence on behalf of the respondent for three years after addition of section 5-A amounted to waiver. It was argued that the amendment is unreasonable and does not cater for natural justice in the society. It was added that it is case of clear discrimination between the owner of residential and non-residential premises. It was added that the appellant held rights in property as tenant and she could legally protect the same in view of the Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973. It was added that when the penal consequences are to follow the provision is to be construed strictly and in the manner it advances the public interest. It was argued that the non-payment was not mala fide as even held by the appellate authority. On the issue of sub-letting, it was argued that there is no independent evidence and the witnesses of the respondents have contradicted to each other even on the location of the so-called platforms. The plea was disproved by the site plan appended with the ejectment petition. The issue should have been decided against the landlady for want of independent evidence. While on the issue of personal use it was argued that the shop was not required by the respondent for use of her son and again there was no independent evidence to prove this issue. It was added that the petitioner earlier filed an ejectment petition which ended in favour of the appellant with the decision of Hon'ble Supreme Court dated 10-6-1990.
3. On the other hand, learned counsel for the respondent argued that the default was proved to the hilt. It was argued that the appellant could not deposit the rent in the Treasury without first having tendered personally to the landlady while in this case it is admitted position that the rent was not offered by the appellant to the respondent. It was argued that even the appellant did not had the permission of the Rent Controller as required under extension II section 13(2) Ordinance of 1959. It was explained that she continued depositing the rent in the Court of the Rent Controller in pursuance of the Order 13(6) passed in the earlier ejectment petition although this order came to an end with the decision of the ejectment petition and in any case with the decision of the matter by the Hon'ble Supreme Court on 10-6-1990, therefore, it was not a valid tender in the eye of the law. It was added that the increase in the rent under section 5-A of the Ordinance, 1959 is automatic and no notice is necessary. The learned counsel has referred to judgment of this Court in S.A.O. No,102/93 Haji Muhammad Ibrahim v. Haji Abdul Salm, decided on 21-11-1995 (PLD 1996 Lah.
308). It was argued that the tender was not even otherwise valid because in some of the challan forms name of the landlady was not mentioned, the title of the ejectment petition was incorrect and so much so in some of the challan forms name of the tenant was incorrect. It was maintained that such errors make the tender invalid. The learned counsel has referred to Haji Allah Ditta v. Mst.
Shahzadi Bilqis and another 1980 SCMR 41 and Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9, Malik Manzoor Ahmad v. Sardar Muhammad 1991 CLC 877, Saleem Ahmad v.
Additional District Judge and others 1992 CLC 1531, Bahadur Khan and others v. Ch Muhammad Hussain and others 1991 SCMR 429, Haji Abdul Ghafoor and 2 others v. Muhammad Ibrahim 1996 MLD 138. It was added that since the appellant was litigating since 1988, therefore she should have been aware of the procedure for tender of rent more so when she is not house wife but running business in the heart of Lahore city. The arguments on this issue were concluded with the submission that the default was thus so mala fide and contumacious, therefore, appellant was not entitled to exercise of discretion in her favour. It was added that the appellant has not pleaded want of notice. Learned counsel in this behalf referred to para. 3, sub-paras. A & B of the petition and reply thereto. It was argued that absence of notice was not pleaded, therefore, could not be raised in second appeal. It was added that no notice was legally necessary. It was argued that reference of Article 143 of the Constitution of the Islamic Republic of Pakistan 1973 on behalf of the appellant is not relevant because Parliament should be competent and the subject should be covered by concurrent list appended with the Constitution. On the other hand, rent laws are included in the residuary list and therefore, Provincial Legislature has exclusive jurisdiction to legislate. The learned counsel referred Zahurul Hasan v. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112. It was added that Article 23 provides that reasonable restriction by Legislature, therefore, amendment in section 5-A is not ultra vires the Constitution. It is added that object of the Ordinance, 1959 to regularise the relationship between the landlord and tenant. The learned counsel referred Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33. It was argued that once landlady stated that rent was not paid then the onus shifted to the tenant who was to prove that the rent was paid and tendered in accordance with law. The learned counsel has referred Allah Din v. Habib PLD 1982 SC 465, Mursaleen v. Ghulam Sarwar through Legal Heirs and another 1991 SCMR 2042 and 2039. It was argued that R.W.2 has categorically stated that demand was made but rent was not paid. On the issue of subletting it was argued that appellant admitted the site plan as correct in para. 1 of the ejectment petition. It was added that once the presence of a third person is proved then it is for the tenant to explain nature of possession of third party. Learned counsel has referred Mahboob Elahi Khawaja v. Mian Khadim Hussain and others 1995 MLD 1002, Malik Aftab Aslam v. Mian Altaf Ahmad and others 1991 CLC Note 327, at p.250 Sh. Muhammad Saleem v. Messrs Obey Rai Cooperative Sports Ltd. 1992 CLC 286. It was added that plea of employment was not proved by any evidence by the appellant, therefore, issue was rightly decided in favour of the landlady. The argument on this point was summed with the submission that it was factual controversy which came to an end with concurrent findings of two Courts of competent jurisdiction. Learned counsel has referred Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others PLD 1971 Lahore 210, Sher Jang v. Muhammad Salim and another 1981 SCMR 229, Sh.
Muhammad Saleem v. Messrs Obey Rai Cooperative Sports Ltd and 4 others 1992 CLC 286.
4. The learned counsel for the appellant while summing up the arguments submitted that the two Courts have erred in law adjudging the appellant as defaulter. It was added that the question whether the notice for enhancement of rent in terms of section 5-A is necessary pending the decision of the Hon'ble Supreme Court in C.P.S.A. No,750(L)/95, therefore, this matter may be kept pending. In this behalf reference is made to the case of Maj.-Gen. (Rtd.) Mian Ghulam Gilani v. The Federal Government PLD 1975 Lahore 65. It was added that subsection (6-A) excludes the application of subsections (1) to (5). In case the landlord and tenant agree to increase the rent, through an agreement writing before the Rent Controller. This situation would only arise when the landlord seeks to enforce his claim enhanced rent by putting him to notice. It was argued that this way the provision of notice is inbuilt under section 5-A. The same is in accordance with the principle of natural justice. It was added that the tenancy is more than 35 years old and the tenant was never a defaulter. The provision of section 5-A of the Ordinance, 1959 is to be interpreted keeping in view the object of the Ordinance namely protection against eviction. In this behalf reference is made to the case of Arshad Muhammad Khan v. Kalsoom Bibi 1994 SCMR 2288. It was argued that the provision ensuring a benefit to a party can be waived by it. In this behalf reference is made to the judgments reported as Syed Masood Hussain and others v. Muhammad Saeed Khan and others PLD 1965 Lahore 11 and Lachoo Mal v. Radhyeshyam AIR 1971 SC 2213. It was argued that simply non-payment would not result in ejectment. In this behalf reference is made to the case of Ghulam Muhammad Khan v. Safdar Ali: PLD 1967 SC 530.
' It was argued that the learned Appellate Authority wrongly held that the tender of rent through Exhs.R,4 to R.10 was defective tender due to absence of name of the landlady. It was explained that the name of the landlady did not appear only in 4 receipts i,e, R.4, R.5, R.10 and R.11. The omission was clerical and is of no avail because the shop, amount of rent and name of the Court was clearly indicated. It was argued that since all the deposits were made with the permission of the Court, therefore, any deficiency should have been pointed out by the Court and the appellant cannot be made to suffer on account of lapse of the Court. It was added that the landlady had been withdrawing the rent deposited by the appellant and there was no complaint as to its non- payment to any such omission, therefore, the same would be deemed of no legal consequences. It was argued that Exhs.R10 and R11 relate to the arrears on account of enhancement of rent, therefore, in the absence of notice the default did not mature. It was argued that the clerical mistake will not render the payment of rent in consequential and the cases relied on behalf of the respondent are clearly distinguishable while in the latest judgment reported as Muhammad Arif v.
Muhammad Raza PLD 1993 Lah. 121 it was held that such mistake would not extreme penalty of eviction. It was argued that the rent was being deposited in the Court of Rent Controller, therefore, that was a valid tender.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the relevant provisions of law, precedents and record. The basic question for determination is whether enhancement of rent under section 5-A of the Ordinance, 1959 is automatic or would come into operation after service of notice, therefore, before proceeding any further I would refer to section 5-A which reads as under:-- "(1) The rent of a non-residential building shall stand automatically increased at the end of every three years of its tenancy by twenty-five per cent. Of the rent already being paid by the tenant.
(2) The first increase under subsection (1) shall accrue--
(i) on the first day of July, 1989 in the case of a tenancy existing for three years or more preceding that date; and
(ii) on the completion of three years of tenancy, in the case of a tenancy which has not been existing for three years on the first day of July, 1989.
(3) Where, during the period of three years, in cases mentioned in subsection (2)--
(i) the rent has already been increased by an amount less than twenty-five per cent of the total rent, the amount of such increase shall be deducted from the increase under subsection (1) and.
(ii) if the rent has already been increased by an amount equal to or more than twenty-five per cent. Of the total rent, no increase under subsection (1) shall accrue until the expiry of three years from the date of such increase.
(4) The arrears becoming due as a result of the increase of rent under this section shall, unless paid earlier be deemed to be rent due under clause (1) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment)
Ordinance, 1990 (XII of 1990).
(5) All proceedings arising from the provisions of sections 4 and 5, in respect of a non-residential building, and pending before the Controller or the Appellate Authority or any Court shall abate.
(6) The provisions of subsections (1) to (5) shall not apply if a landlord and a tenant agree to increase the rent by an agreement in writing executed before the Controller."
The Legislature has clearly provided that enhancement is automatic. Even otherwise the rate of enhancement, the dates from which it is due as well as by which it is payable have since been made part of the statute and nothing is left to be done by the parties, therefore, the increase in the rent would come effective automatically and the tenant is under obligation to pay the rent at the revised rate and the landlord is under obligation to accept the same. It is true that both the parties may agree to another rate but in that case the agreement should be executed before the rent and for that purpose no notice was required. The purpose was to exclude the possibility of false plea of agreement at a rate less than 25 per cent. I am entirely with the view by my learned brother Malik Muhammad Qayyum, J., in the case of Haji Muhammad Ibrahim (supra).
Now coming to the vires of section 5-A. The rent laws are including in 16 the residuary list, therefore, Provisional Legislature has the exclusive jurisdiction to legislate. The learned counsel for the respondent has correctly referred to the case of Zahoor-ul-Hassan (supra).
Now coming to the iss-le of default. Section 5-A was introduced through Act III of 1991 which came into force on 16-3-1991, while increase was made effective with effect from 1-7-1989 and the arrears of increase were payable within 60 days from the above date. The admitted position is that the arrears were deposited by the appellant on 10-1-1993, therefore, the appellant was defaulter.
The learned counsel for the respondent also argued that the previous round of litigation came to an end at least on 10-6-1990 with the dismissal of C.P. No,466(L)/90 filed by his client, therefore, any rent thereafter deposited in the previous ejectment petition was not a valid tender. Again it was argued that the arrears coming due on account of automatic enhancement coming into existence with the addition of section 5-A of the Ordinance, 1959 and the rent at the enhanced rate were never tendered to his client, therefore, resort to deposit in the Court of Rent Controller would not be a valid tender. The appellant after conclusion of the first round of litigation was under legal obligation to tender rent in the first instance to the landlady and on her refusal was within her rights either to remit the same through money order or deposit in the Court. The admitted position is that the appellant did not tender the rent to her landlady, therefore, her continuing to deposit rent in the previous ejectment petition cannot be considered as a legal tender in terms of Explanation H to section 13(2) of the Ordinance, 1959. This Ordinance, 1959 protected only those tenants, who discharged their obligation imposed by law in the prescribed manner. In this behalf reference can be made to the judgments of the Hon'ble Supreme Court reported as Mrs. Aleema Ahmad v. Amir Ali PLD 1984 SC 32 and M/s. Pragma Leather Industries v. Mrs. Sadia Sajjad PLD 1996 SC 724. The appellant should not have continued to deposit rent in the Court of Rent Controller, who decided the first ejectment petition. It is interesting to note that the rent for the months of January to June, 1993 was deposited at the enhanced rate on 4th June, 1993 and again arrears for the months of August 1992 to December, 1992 at the revised rate were also deposited on 4-6-1993 while the arrears of revised rate for the period from July, 1989 to July, 1992 were deposited on 10-1-1993. This was all done without notice and even before the filing of the present ejectment petition, which was filed on 29-5-1993. It clearly proved that the appellant was clear in her mind as to her obligations under Ordinance, 1959.
6. Now coming to the lapses made in completing the treasury challans. There is merit in the argument of the turned counsel for the respondent that non-mentioning or wrong mentioning of the name of the landlady therein is fatal and deposit would not be a valid tender.. He has rightly referred to the judgments reported as Kh. Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9, Malik Manzoor Ahmad v. Sardar Muhammad 1991 CLC 877, Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR 41, Bahadur Khan and others v. Ch. Muhammad Hussain and others 1991 SCMR 429 and Saleem Ahmad v. Additional District Judge and others 1992 CLC 1531. The learned counsel for the appellant has also argued on the issue of personal use which was decided in favour of the appellant by both the Courts below. The learned counsel perhaps was under the impression that the respondent may attack the findings of the two Courts on this issue but the respondent neither filed cross-objections nor the findings were otherwise challenged in arguments, therefore, argument of the learned counsel for the appellant need not be dealt.
7. Now coming to the issue of subletting, the learned counsel for the appellant argued that the evidence on the point of subletting was discrepant and consist of highly interested witnesses. It was added that the Tharras were not shown to have been let out along with the shop to the appellant, therefore, there was no question of subletting the same. The case of the respondent was that the two portions of the shop have been Sublette to Usman and Saeed while in evidence they were shown working on the platforms on either side of the shop, therefore, in natural consequences the same came into existence after the tenancy. However, the same clearly have been shown in the site plan Exh.P2. It is a case of concurrent findings of fact on issues Nos.2 and 3. The appellant has failed to make out a case for interference in second appeal.
8. The upshot of the above discussion is that this appeal is dismissed with costs. However, the appellant is allowed time up to 30th November, 1996 to hand over the vacant possession of the shop to the landlady.