1. ' TUFAIL H. EBRAHIM, J.---With the consent of the parties the matter is finally being'heard and decided at Katcha Peshi stage.
2. ' Brief facts of the appeal as per record are that Rent Case No,38 of 2009 was filed by respondent against appellant on the grounds of default in payment of monthly rent for a period commencing from 1-11-2008 and default in payment of utility bills. Written statementwas filed by the appellant wherein it was denied that the monthly rent for the demised premises was Rs,75,000 per month in terms of Tenancy Agreement dated 30-11-2007. On expiry of the tenancy agreement on 31-10-2008, no new agreement was executed between the parties and the appellant became a statutory tenant of the respondent and was therefore not required to pay the enhanced monthly rent at the rate of Rs,82,500 per month for the period commencing from 1-11-2008 as mentioned in the expired tenancy agreement.
3. ' That vide initial order dated 30-6-2009 the Court of Additional Controller of Rents, Clifton Cantonment, Karachi directed the appellant to deposit tentative rent at the rate of Rs,82,500 per month including arrears of differences of rent amounting to Rs,60,000 for a period commencing from November, 2008 to 2009 in favour of the respondent in the Court of Additional Controller of Rents, Clifton Cantonment, within sixty days. The appellant was further directed to deposit future monthly rent at the date of Rs,82,500 per month before 5th day of every month.
4. ' After recording of evidence and hearing both the counsel of the parties, the learned Additional Controller of Rents came to the conclusion that the rate of rent of demised premises was Rs,82,500 per month with effect from 1-11-2008 and the appellant had defaulted in payment of differences of rent and allowed the rent application of the respondent.
5. ' Learned counsel for the appellant has contended that the learned Additional Controller of Rents has erroneously concluded that after expiry of tenancy agreement on 31-10-2008, the rent was to be enhanced by 10% in terms of the said tenancy agreement. He emphasized that the enhancement was not automatic, but was subject to renewal and execution of fresh agreement, which was never done. Per learned counsel after the expiry of tenancy agreement on 31-10-2008 the tenancy agreement came to an end and the appellant became a statutory tenant on the same terms and conditions including . The rate of rent and the stipulation contained in the tenancy agreement as to increase in monthly rent at the rate of 10% after every 11 months could not be enforced.
6. ' The learned counsel has argued that the learned Additional Controller of Rents did not consider that any enhancement of monthly tent could only be done under the provision of section 7(5) of the Cantonment Rent Restriction Act 1963. Learned counsel has further argued that increase of rent under the Cantonment Rent Restriction Act, 1963 could be made after three years only and not otherwise. Per learned counsel the said agreement is void within the meaning of section 2(g) & (h) of the Contract Act 1872 the terms could not be enforced.
7. ' The learned counsel of the respondent has argued that the Additional Controller of Rents has rightfully come to the conclusion that after the expiry of tenancy agreement on 31-10-2008 the appellant would be deemed as statutory tenant on the same terms and conditions as agreed between the parties i.e. Tenancy Agreement dated 3-11-2007 and therefore the appellant would, be liable for increase in monthly rent at the rate of 10% w.e.f. 1-11-2008 as stipulated in the tenancy agreement. Per learned counsel the appellant in his cross-examination had admitted that "It is correct to say that rate of rent was Rs,75,000 and after enhancement by 10% rent became Rs,82,500 p.m. Per learned counsel the terms and conditions of the expired agreement, if not renewed mutually, would continue after the expiry of the term mentioned in the tenancy agreement and only those terms and condition would not be applicable which are repugnant to the Cantonments Rent Restriction Act 1963.
8. ' It is further argued that restriction within the meaning of subsection (7) to section 5 of Cantonments Rent Restriction Act, 1963 would come into play only after once the fair rent as determined by the Additional Controller of Rents. Per learned counsel even the appellant had the right to apply to the Controller for determination of fair rent. It was vehemently argued by the learned counsel that the rent was specifically determined for a period after 30-10-2008 in tenancy agreement dated 30-11-2007. That it was specifically agreed that rent for the period commencing from 1-12-2007 to 31-10-2008 would be Rs,75,000 and thereafter the monthly rent will be increased at the rate of 10% after every 11 months. Per learned counsel the rent for the period commencing from 1-11-2008 was agreed to be Rs,82,500, which the appellant has failed to pay to the respondent and as such the appellant has committed wilful default in payment of rent and therefore the Additional Controller of Rent has rightly come to the conclusion that the appellant has committed default in payment of enhanced rent. In support of his contention the learned counsel has relied upon the case of MRs, Zarina Khawaja v. Agha Mehboob Shah reported in PLD 1988 SC 190, in which it was held as under:-- "That the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualized in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by profess of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not be operative.
9. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail' to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed Law. Similar would be the case relating to some other situations, for example, the determination of the fair rent."
10. ' I have heard both the learned counsel and pursued the record and the case-law relied by the counsel of the respondent. It is admitted position that the monthly rent in terms of the tenancy agreement dated 30-11-2007 for the rented premises was Rs,75,000 per month. In terms of the tenancy agreement on the expiry of the tenancy agreement the said agreement was to be mutually renewed. However, the monthly rent was to be increased at the rate of 10% after every eleven months. That the tenancy agreement was not renewed mutually but the appellant continued the occupation of the rented premises as statutory tenant and started paying/depositing rent at the rate of Rs,75,000 per month.
11. ' It is my view that since the agreement was not renewed after the expiry of the said tenancy agreement the appellant became a statutory tenant on the same terms and conditions of the tenancy agreement dated 30-11-2007. As held by the apex Court in the case of MRs, Zarin Khawaja v. Agha Mehboob Shah (supra) after expiry of tenancy agreement and if the same was not mutually renewed then the terms and conditions of the expired agreement would continue on the same terms and conditions as mentioned in the tenancy agreement including any provision to enhancement of rent, and only those terms and condition would not be applicable which are repugnant to the Act. The appellant in his cross-examination had admitted that "It is correct to say that rate of rent was Rs,75,000 and after enhancement by 10% rent became Rs,82,500 p.m".
12. ' The contention of the counsel of the appellant that the learned Additional Controller of Rents did not consider that after 31-10-2008 any enhancement of monthly rent could only be done under the provision of section 7(5) of the Cantonments Rent Restriction Act 1963 is not relevant to the present case. Subsection (5) to section 7 of Cantonments Rent Restriction Act, 1963 would be applicable only after once the fair rent was determined by the Additional Controller of Rents. In this case enhancement of rent was in terms of the tenancy agreement and no fair rent was fixed by the Addl. Controller of Rents, Clifton, Karachi.
13. ' According to me the learned Addl. Rent Controller has come to correct conclusion. There is no misreading or non-reading of evidence and no provisions of law has been ignored while arriving at his decision. For the aforesaid reasons and discussion the appeal filed by the appellant along with the pending application are dismissed, with no orders as to costs.