' Questions of law and facts, involved in these three Appeals (SAO-202/70, SAO-203/73 and SAO- 222/70), filed by a landlord under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, are the same, therefore, they are being disposed of together.
2. The appellant is the transferee of the property in dispute under the Displaced Persons & Reh.) Act, 1958. He served notices on the three respondents/tenants on 15-5-1965 informing them of the transfer and requiring them to pay the arrears of rent for five months (P. T.
0. Is dated 18-12-1964). The demand was of Rs, 45 at the rate of Rs, 9 p.m. The tenants were also required by the same notices to pay the current monthly rent before the 5th of every calendar month, failing which they were warned of proceedings in Court, against them.
3. It is now an admitted position that the respondents/tenants did offer rent to the appellant at the rate of Rs, 9 p.m. For five months as arrears demanded in one part of the notices. The tender was late by two days in so far as the statutory period prescribed under section 30 of the Act is concerned. The landlord refused to accept this tender as explained by the learned counsel for two reasons (1) that in so far as the arrears were concerned, the offer was late and beyond the statutory period; and (II) the tenants had failed to pay the then current monthly rent, i,e,, from the date of the notice up to the date of tender. He consequently moved ejectment applications.
Learned Rent Controller vide order dated 4-10-1968 allowed the same and directed ejectment of the respondents on the ground of default because, according to him, there was no evidence of payment or tender of rent for the period commencing from the date of notice up to the date of tender, i,e,, for three months. The learned lower appellate Court, however, upset the order of the learned Controller mainly on the ground that the period of time allowed under section 30 of the Act together with the period of sixty days for payment of rent allowed under section 13 of the Ordinance would furnish enough defence to the respondents against allegation of default because they were entitled to pay the rent on or before 15-10-1965. And because money orders were sent on 17-8- 1965, therefore, there was no default. Some supporting reasons are also mentioned in the impugned judgment. They relate to the rate of rent as Rs, 8 p.m. And not Rs, 9 p.m , as asserted in the notices and the applications for eviction. Learned Additional District Judge was of the view that the demand of Rs, 9 p.m. Was excessive and in any case the rent offered by each respondent in excess of Rs, 40 (i,e,, Rs, 5 in each case) could be adjusted towards unpaid rent. Learned counsel for the respondents has while reiterating the grounds mentioned in the impugned judgment added that the learned Rent Controller had also fixed Rs, 8 as tentative rent under section 13(6) of the Ordinance.
4. The rent fixed under section 13(6) of the Ordinance is not only tentative but has to be approximate. The final determination of the question as to whether there has been a default qua payment of the contractual or statutory rent cannot be based entirely on the direction under section 13(6) of the Ordinance. In these cases it is mentioned in the notices that the rent was Rs, 9 p.m. The respondents through their conduct accepted the rate mentioned in the notices. Not only this, in their written statements no objection was taken to the rate of rent and lastly, even in the grounds of appeal, no plea was raised with regard to the rent being Rs, 8 p m. And not Rs 9 p.m. In view of these circumstances it has to be held that the learned lower appellate Court unnecessarily examined the question of rate of rent. It has no direct bearing on the question of default. Otherwise too, as would be presently shown, even if the rate were Rs 8 p m., the respondents were clearly in default.
5. The real controversy which has seen the subject-matter of arguments and which forms the basis for the admission of these appeals is whether the two periods of time ; (i) allowed under section 30 of the Act ; and (ii) under section 13(2) (1) can be added together so as to allow five months to a tenant to clear the arrears of rent demanded in a notice issued by a landlord transferee under section 30 of the Act. No doubt in the order dated 17-11-1965 in SAO-15/1965, dismissing the said appeal in limine, a learned Single Judge of this Court expressed the view that the two periods of time are to be added together and thus, this interpretation goes in favour of the tenants but while deciding the L. P. A. 339 of 1965 in the same case the Division Bench did not specifically approve of the said view. Be that as it may, a similar question came up for consideration in this Court in another case reported as Sh. Lai Muhammad v, Muhammad Mushtaq and others (1). A Division Bench held that the period mentioned in section 13-A of the Ordinance (which is analogical to the relevant provisions in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 cannot he added to the period allowed under section 13(2) (1) of the Ordinance. The precise question involved in these cases came up for consideration in another case S.A.O. No, 62/1971 and it was held that the two periods of time cannot be added together. The argument of the learned counsel for the appellant that some of the observations in Sajjad Hussain and 2 others v. Aleem Ullah (2) and Shabblr Ahmad v. Mst. Kablr-un-Nisa and others (3) to the effect that in a case covered by section 30 of the Act, the tenant has to make the payment within 90 dates of the notice, support the above view has also sufficient force. The case relied upon by the learned counsel for the respondents, namely, Syed Shin Gut v. Haji Abdul Majid (4) is not only distinguishable but is otherwise also not of any help to the respondents. It is not necessary to go into a detailed discussion. The point has already been adequately dealt with in the Division Bench ruling of this Court, namely Sh. Lal Muhammad v, Muhammad Mushiaq I hold that the two periods cannot be added together. The tenants in these cases were bound to tender or offer the rent on or before 15th of August, 1e65. Obviously the tender was delayed by two days.
6, Learned counsel for the respondents has next contended that the delay being negligible, it should not be treated as wilful default. It this were the only default, I might have agreed with him but as observed by the learned Rent Controller in this matter, no assertion was made nor any evidence was led to show that any rent was paid by the respondents for a period of three months prior to the filing of the eviction applications on 9-9-1965. Section 30 of the Act clearly provides that after the receipt of notice, subject to the grace period of 90 days, the tenant is required to pay not only the arrears of rent but also the current continuing rent In this case the respondents felt contented by tendering the rent for five months only and clearly committed the default with regard to the remaining three months up to the date of filing of the eviction applications. The property was transferred in favour of the appellant on 18-12-1964 through a P. T.
0. Up to 18-8-1965 the respondents were required to pay rent for eight months. They offered rent for five months in the month of August, 1965 ; and till the filing of the application on 9-9-1965 they did not pay or tender the rent for the remaining three months. They were therefore, in default for three months. Even if the rent were Rs, 8 p. m. Which as noted earlier, is not the case, the respondents would still be in default for more than two months. I permitted the learned counsel for the respondents to show any material from the record indicating that the respondents had made any payment or offered the rent for three months prior to the filing of tee application for eviction. He, after perusal of the record answered in the negative. Thus, it is a c!Ear case of default in payment of rent for three months.
7. I have also examined the case from the other angle namely, that if the learned lower appellate Court has exercised proper discretion qua default in favour of the tenants, it should not he lightly disturbed. The learned lower appellate Court on mistaken view of law did not at all apply mind to the fact that the respondents had committed default for three consective months in addition to the slightly late tender of arrears of rent
(1) PLD 1975 Lab. 1117 (2) 1974 SCM R 221
(3) PLD 1975 SC 58 (4) PLD 1968 Quetta 45 ' Thus, the discretion, if any, exercised does not appear to be based on an sound principle. The default cannot be described as other than wilful These three appeals are accordingly allowed. The orders of eviction passe by the learned Rent Controller are restored. The respondents are allowed two months' time each to vacate the premises. There shall be no order as to costs.