' This is after ant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, whereby he has brought under challenge orders of his eviction on ground of default in payment of rent.
2. It is admitted positions that according to the rent note (Exh. P. 1) dated 27-6-1974 executed between the parties, the tenancy was monthly and the rent was payable in advance on the first of every calendar month. According to the findings by the learned Controller affirmed in appeal, the rent for November and December 1974 was tendered through money order coupon (Exh. R. 1) dated 13-1-1975. On account of refusal by the respondent (landlord) to accept this tender through money order, a deposit in Court through challan (Exh. R 3) was made of Rs, 450 representing the rent for November, December 1974 and January 1975 on 17-1-1975. It has been held against the appellant that the rent being payable for this period on first of each month and allowing the margin of fifteen days under section 13(2)(i), the amounts tendered or deposited were so tendered or deposited on such dates which were beyond the fifteen days' time, therefore, the appellant committed a default for three consecutive months. That being so, it was held to be wilful and consequently he was ejected on ground of being a defaulter.
3. Learned counsel for the appellant has raised two questions in this appeal. Firstly, that the learned Controller and the learned lower Appellate Court ignored reliable evidence in reaching the conclusion that the appellant had not offered rent to the respondent before sending the same through money order and finally depositing it in Court ; and secondly, that even if the aforementioned plea of direct offer is not accepted, it has wrongly been held that there was default with regard to three consecutive months. According to him, section 13(2)(i) would keep the appellant protected for fifteen days after each alleged default, therefore, the period of default would get reduced ; and that being so, if the element of consecutive default for a longer period is eliminated, the discretion could, as well, have been exercised in favour of the appellant.
3-A. The evidence said to have been ignored, pointed out by the learned counsel, is the deposition of Muhammad Tufail (R. W. 2) who alleged against the respondent that he was in the habit of extracting heavy pagree from the tenants and that the witness bad also paid the same. He further deposed that the respondent had obtained pagree from the appellant as well. This, according to the learned counsel, showed that the action for eviction of the appellant by the respondent was not bona fide. He wanted a contrivance to eject the appellant by creating a plea of default by refusing to receive the rent and thus to extract more pagree either from the same tenant (le., the appellant) or from other tenant. Learned counsel also read the deposition of the appellant wherein he asserted that the respondent wanted to get the shop vacated in order to extract pagree. In the circumstar ces of this case, the type of evident relied upon by the learned counsel has rightly been rejected. The learned Controller speeiflcally mentioned this evidence and it cannot be said that the learned lower appellate Court was not conscious about it. However, it is interesting to note that the appellant himself did not assert that he had paid any pagree to the respondent. This amounts to his having contradicted his own witness, namely, R. W. 2 on a material circumstance. Thus, R. W. 2 could not be implicitly relied upon with regard to another similar circumstance, namely, that he had paid the pagree to the respondent. Be that as it may, even if the landlord had taken a pagree from a tenent, that would not give a licence to another tenant to commit default and for that reason alone, the default could not be condoned. If the conduct of the tenant is such that the default on his part regardless of what the landlord intended to do is, by independent circumstances, proved to be wilful, he would become liable to ejectment. It would be a different matter altogether if the default is not found wilful on a finding of fact, as alleged, that the landlord refused to accept the rent with a view to extract pagree. In this case, the concurrent findings of fact do not justify interference on the argument of the learned counsel that the respondent refused to accept the rent because he, in fact, wanted to extract pagree. Otherwise too, the analy of the evidence of the appellant, subject of course to the consideration of th second legal argument raised by the learned counsel, does not show that the B respondent in fact refused to receive the rent. If he had refused to receive the rent on 1-11-1974 and if the appellant believed that the respondent was in the habit of extracting pagree, this circumstance should have put him on guard and be would have tried to clear the rent before 15th of November 1974. Same would apply to his entire conduct upto 17-1-1975, as analysed by the learned Controller. Thus, in so far as the concurrent finding of fact qua alleged offer of rent by the appellant to the respondent is concerned, there is no justification for interference. The first argument of the learned counsel is repelled.
4. The two relevant provisions of the Ordinance, with regard to which an argument of interpretation was raised at the bar, read as follows "6. Landlord not to claim anything in excess of fair rent.-(1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section 4-
(a) landlord shall not claim or receive any premium or other like sum in addition to fair rent, or any rent in excess of such fair rent ; but the landlord may stipulate for and receive in advance an amount net exceeding one month's rent ;
(b) ..
(c)..
(2)
"13. Eviction of tenant.---(1) .
(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-
(1) 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. .
There is no bar in the Rent Restriction Ordinance for stipulating payment of monthly rent in advance. On the contrary, on analogy, it can be construed from sub-clause (a) of subsection (1) of section 6 of the Ordinance that the landlord, in the case of fixation of fair rent by the Controller under section 4, "may stipulate for and receive in advance an amount not exceeding one month's rent". There can be two possible interpretations of this provision. One, that during the entire period of tenancy, only one month's rent can be received in advance, presumably, at the commencement of the tenancy. The other interpretation would be that throughout the tenancy the rent could be stipulated for and received in advance every month when, of course, the tenancy is on monthly basis. All other forms of receipt of rent in advance beyond one month's rent, it seems, are prohibited. In the circumstances of this case, it is not necessary to resolve the controversy as to which, out of the above two interpretations of section 6(1)(a), is correct. The positive question of stipulation and receipt of advance rent is separate and detachable from the punitive provision relating to consequence of default in payment of the due rent. Sub-clause (0 of subsection (2) of section 13 requires the Rent Controller, before directing eviction, to be satisfied that the tenant had not paid or tendered rent "due by him" in respect of the property within the period specified in the said provision ; but "after the expiry of the time for which the rent is payable. The rent payable on monthly basis, on general principle, also, would become due on the completion of occupancy of the property by the tenant for full month. Thus, it would become "due" from the tenant at the end of the month. Unless the rent is due, the tenant on the same principle cannot be evicted for supposed non-payment. Thus looked at, the rent for the month of November 1974 would become due after the last day of the said month, i,e,, on 1st of December 1974. This being a monthly tenancy, in accordance with the agreement, fifteen days' time is by law allowed to the tenant to clear the same. He could clear it till the 15th of December 1974. The appellant failed to do so. Therefore, he was in default qua the month of November 1974. The rent of December 1974 was due on 1st of January 1975. The appellant could clear it on or before 15th of January. He sent the money order on 13-1-1975. Therefore, he was not in default qua the month of December 1974. Similarly, the rent for the month of January 1975 would become due on 1st of February 1975. It was deposited on 17-1- 1975. Therefore, there is no question of default in that behalf.
5. If the above interpretation and counting is kept in view, the next question arises as to how then the provision contained in section 13(2)(i), as interpreted above, would be reconcilable with the concession of advance rent allowed to the landlord by virtue of analogical interpretation of section 6(1)(a). The punitive provision has to be interpreted more strictly than the permissive one. Apart from this principle, the underlying objects of the Legislation are to be kept in view. Moreover, it is necessary, to make an effort at reconciliation between the two so-called conflicting provisions in such a manner as not to cause unnecessary and extra hardship to the tenant than is absolutely necessary under the law. The combined effect of the application of these principles on the two provisions would be that notwithstanding the permission to a landlord to stipulate for and receive in advance an amount not exceeding one month's rent, he cannot make this permission and stipulation as the basis for the eviction of the tenant in face of clearly mandatory provision contained in section 13(2)(i). In order to evict the tenant on ground of default in payment of rent, he would have to satisfy the latter provision whereunder, unless it is proved that the rent was due from the tenant in the sense explained and analysed above, the latter cannot be evicted on ground of default. Thus, a tenant might, in order t create goodwill between himself and the landlord, stipulate for and pay in advance monthly rent. He cannot, however, on account of this stipulation be evicted if he fails to pay the rent in advance, though clears the same in accordance with section 13(2)(i) as and when it becomes due, or with' fifteen days after the expiry of the time fixed, I e , the month, in case ort monthly tenancy. This interpretation has the support of a ruling of the Peshawar High Court (Muhammad Ashraf v. Muhammad Anwar (1)). I am in respectful agreement with and follow the observations in this behalf made at page 159 of the report. In the light of the above discussion, it is hold that the appellant committed the default in payment of rent with regard to the month of November 1974 only and not for three months as held by the learned Controller.
6. The next question that arises is as to what is the effect of the above finding. It has now been held that the appellant was in default only for one month. The learned Controller and the first appellate Court on the other hand held that he was in default for three consecutive months. I do not agree with the learned counsel for the respondent that whenever there is a default even of one month, the Rent Controller is bound to order eviction. It is within his discretion, after taking into consideration facts and circumstances of each case, to direct the eviction on a finding of default or exercise the discretion otherwise in favour of the tenant. I am also of the view that the length of period of default as also the circumstance whether it is a continuous period are some of the circumstances which may be note when exercising discretion one way or the other. It is, therefore, certain that the two circumstances in this case found by the learned Rent Controller, namely, (i) three months default, and that too, (ii) for a continuous period, must have influenced his mind when exercising discretion against the tenant. It is not certain whether, if he would have been aware that there is default only of one month and further if he would have noticed the other circumstance that when the rent for two months, namely, November and December 1974 was sent to the landlord through money order he refused to accept the same, he would have still exercised the discretion against the tenant.
7. In the circumstances of the case, I would not like to deprive the parties of the benefit of the decision of the learned Rent Controller and in case of need the lower appellate Court, on these questions in the light of the reversal of the finding qua period of default. It is possible that this change in the finding qua the period of default, when taken into consideration by the Controller, he may exercise his discretion in favour of the tenant. It is also possible that notwithstanding this change, he might again decide in favour of the landlord and evict the tenant.
8. In view of what has been said above, while setting aside the impugned orders and allowing the appeal, I consider it necessary in the interest of justice to remand the case to the learned Rent Controller for fresh decision in accordance with law. There shall be no order as to costs.
9. Learned Rent Controller is directed to decide the case within. Two months after the receipt of the file which should be sent immediately. . Case remanded..
(1) PLD 1975 Pesh. 254