2013 CLC 963 ISLAMABAD

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ZHANGE GUOGEN VS Mst. JAHANZEBA BEGUM 1998 CLC 1054, 1998 MLD 1765, 2003 CLC 44, 2003 YLR 2708, 2010 SCMR 1071, PLD 1980 SC 298, PLD 1997 SC 564, PLD 2010 SC 19, Constitutional petition--TERM , Ejectment of Tenant--TERM , Islamabad Rent Restriction Ordinance 2001--10 , Islamabad Rent Restriction Ordinance 2001--11 , Islamabad Rent Restriction Ordinance 2001--17 , Wilful default--Term , Ss.10, 11 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Wilful default---Penalty, non-payment of---Increase in rent---Rent Controller and Lower Appellate Court passed eviction order mainly on the ground that according to terms of agreement, tenant failed to pay fine to landlady for delay in payment of rent and also did not pay increased rent---Plea raised by landlady was that tenant had not paid increased rent which stood automatically enhanced after 3 years of tenancy at the rate of 25% as provided under section 10 of Islamabad Rent Restriction Ordinance, 2001---Validity---Condition of payment of Rs.500/- per day was penalty and it could not be considered as additional rent---Such penalty was specifically prohibited by section 11 of Islamabad Rent Restriction Ordinance, 2001, and agreement to that extent was void ab initio---Landlady did not show any notice issued to tenant requiring him to pay statutory rent nor any application had been moved to strike off the defence of tenant, therefore, statutory ground could not be pressed into service---High Court in exercise of Constitutional jurisdiction set aside eviction orders passed by Rent Controller and Lower Appellate Court resultantly ejectment application was dismissed---Petition was allowed in circumstances.