' IRSAHD HASAN KHAN, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment dated 4-6-1999 passed by learned Single Judge of the Lahore High Court, Lahore, in S.A.O. No.46 of 1999.
2. The facts are that on 8-12-1997 the petitioner filed an application for ejectment against the respondent in respect of Shop No.122-A, Main Bazar, Jauherabad, on the ground that he had neither paid nor tendered the rent at the increased rate of 25% as required by section 5-A of the Punjab Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance). The application was allowed by the learned Rent Controller by order dated 28-7-1998. The appeal preferred by the respondent against the said order was dismissed by judgment dated 26-2-1999 passed by the learned District Judge, Lahore. However, on second appeal filed by the respondent in the High Court, a learned Judge in Chambers dismissed the ejectment petition with the remarks that the petitioner herein shall be at liberty to file fresh petition after serving notice for increase of rent by 25%. It would be advantageous to reproduce paragraph 7 of the impugned judgment which reads thus:- "(7) The ejectment of the appellant was allowed on the ground that the increase of 25% of rent was automatic and its non-payment would result in a wilful default and that without a notice, the ejectment could be ordered. In fact, the true legal position is that the increase of 25% becomes due on the expiry of 3 years and is deceemed to be a rent due to, nevertheless, for seeking ejectment on the ground of default, one has to prove that it was wilful. The element of wilfulness can be proved by showing that the tenant was called upon to pay the rent by increasing 25% in terms of section 5-A of the Ordinance, but he failed to do the needful. Demand can obviously be proved by sending a notice. If despite notice, tenant fails to increase rent by 25%, then the landlord can press for eviction, on the ground of default. In this case, no notice for increasing rent by 25% was ever served upon the tenant and, therefore, the Rent Controller and the learned Additional District Judge fell in error in directing eviction of the appellant."
3. Mr. Muhammad Hussain Awan, learned counsel for the petitioner contends that by introducing section 5-A in the Ordinance, the legislature thought it advisable to make the provisions automatic in their operation. No notice was required to be served after three years upon the tenant to pay the rent at the enhanced rate of 25%. He further contends that the institution of the ejectment petition is itself a notice and that in any case issuance of such a notice is not a condition precedent for vesting jurisdiction in the Rent Controller to pass order of eviction of a defaulting tenant.
4. In support of the above contentions, learned counsel for the, petitioner placed reliance on the case of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (1985 SCMR 24), wherein Shafiur Rehman, J.
(as he then was) observed with reference to section 13-A of the Ordinance, as follows:- "The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance."
' In the case of Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751) a somewhat similar view was taken by Muhammad Afzal Zullah, J. (as he then was) in paragraph 7 of the report, which reads as under:- "That being so, rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13-A the respondents were liable to be evicted."
5. There is no cavil with the interpretation of section 13-A of the Ordinance as explained in the above referred cases. In the present case, however, we are concerned with the interpretation of section 5-A of the Ordinance. While dealing with section 5-A of the Ordinance, learned Single Judge of the Lahore High Court, in the case of Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti (PLD 1996 Lahore 308), observed:-- "11. On its plain reading section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959, provides for automatic increase in the rent and it becomes the obligation of the tenant to pay the rent at the revised rate. The use of word 'automatic' clearly negates the contention that service of notice by the landlord is necessary in order to avail of the benefit of section 5-A of the Ordinance. In Words and Phrases; Permanent Edition, Volume 4-A, 'automatic has been defined as 'self-acting', 'without option or choice' to either party. Similarly in The New Oxford Illustrated Dictionary, 1st Edition at page 96, one of the meanings given to the word 'automatic' is 'without intervention'. It, thus, becomes clear that on the expiry of the period mentioned in section 5-A of the Ordinance, rent ipso facto stands enhanced and the tenant becomes obliged to pay the same to the landlord. This is unlike sections 4 and 5 of the Punjab Urban Rent Restriction Ordinance, 1959, under which the increase in the rate of rent is dependent upon proof of certain facts and order of the Rent Controller."
' In Mst. Mumtaz Begum v. Mst. Wazir Begum (PLD 1997 Lahore 99), it has been observed:- "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 Qyyum, J., in the case of Haji Muhammad Ibrahim (supra)."
' In Sh. Barkat Ali Cycle Works, Gulberg-II, Lahore v. Haji Waheedud-Din, Gulberg-II, Lahore (PLD 1998 Lahore 196), it has been observed: "It is so obvious from the plain reading of the afore noted sections as introduced in Ordinance VI of 1959 that the rent of a non-residential building shall stand automatically increased at the end of every three years of tenancy by twenty-five per cent of the rent already being paid by the tenant.
Subsection (2) of the said section and the various sub-clauses thereof deal with the various eventualities forming basis of increase as envisaged by subsection (1) of section 5-A of Ordinance (ibid). The overall effect of this increase has been dealt in subsection (4) of the said section whereby it is ordained that the arrears having become due as a result of the increase under the said section unless paid earlier, be deemed to be rent. Due under clause (I) of subsection (2) of section 13 on the expiry of sixty days' from the date of coming into force of the said amendment, whereby section 5-A has been added in the text of Ordinance VI of 1959. The intention of Legislature is manifest from the words used in subsection (4) that the arrears remaining due as a result of increase as ordained by subsection (1) would be actionable under clause (1) of subsection (2) of section 13 meaning thereby that it would be an added ground for seeking eviction of a tenant who had not paid the arrears, becoming due as a result of the increase of rent under section 5-A. The Legislature in its wisdom has omitted or avoided to say that the said arrears would also be deemed to be rent due under subsection (6) of section 13 or for that matter generally under section 13 of the Ordinance. Obviously, the intention is that the arrears becoming due as a result of increase of rent under section 5-A shall be actionable under clause (1) of subsection (2) of section 13 alone and not under any other section of the said Ordinance. There appears to be lot of logic behind it for the penal action as contemplated by subsection (6) of section 13 could only be commenced and imposed upon the tenant when a positive order calling upon the tenant to pay the arrears as also the future monthly rent had in fact been passed by the learned Rent Controller.
It is so obvious from the plain reading of first part of section 13(6) of the Rent Restriction Ordinance, 1959 that apart from direction in regard to arrears of rent, the tenant is also to be directed to deposit regularly the future monthly rent till the final decision of the case before 15th day of each succeeding month, the monthly rent due from him, and before passing such an order, if there be a dispute about the deposit of rent, he has to determine the same approximately and then direct the tenant to deposit the same. The second part of section 13(6) (ibid) then envisages that noncompliance of the said order shall be vested with penalty of striking off the defence of the tenant. This could only be done, if there be an order passed by the learned Rent Controller.
Obviously, the subsequent increase in rent after the passage of 3 years from the previous increase or from the date fixed in section 5-A, could not be read into the order passed under section 13(6) nor form basis of the said order so as to entail the penalty of striking off the defence of the tenant.
As a matter of fact there being no order as such, it would be quite harsh and even illogical to say that the tenant had not complied with the order passed under section 13(6) (ibid) therefore, his defence be struck off."
' In the case of National Development Finance Corporation, Shahrahe-Quaid-e-Azam, Lahore v.
Shaikh, Naseem-ud-Din and 4 others (PLD 1997 SC 564), it was held by this Court with reference to section 5-A (ibid) that mere non-payment of rent according to enhanced rate without anything else on the record would not result in penalising the tenant. It was further observed: " The word 'default denotes something more than mere non-payment of rent. It has not come on record if the respondents in consequence of statutory increase in rate of rent by 20% sent any notice of such increase to the petitioner. In the circumstances, we are unable to agree with the observation made in the impugned judgment that the petitioner had become defaulter in payment of rent."
7. Having considered the case law referred above, and the submission made by the learned counsel for the petitioner, we are inclined to hold that service of notice under section 5-A of the Ordinance by a landlord to a tenant for statutory increase of rent is not a condition precedent to invoke the jurisdiction of the Rent Controller. We are also of the view that under the above provision, increase of 25% in rent becomes due on the expiry of three years and is deemed to be a rent due. A duty is, however, enjoined upon the Rent Controller to examine in each case whether default in the payment of statutorily increased rent is willful or otherwise. In the instant case, no prejudice has been caused to the petitioner, in that he has been permitted to file a fresh petition for eviction against the respondent. He may do so, if so advised, in the light of the above observation.
8. Resultantly, the petition is dismissed and leave declined.