' This second appeal is filed against the impugned judgment dated 5-8-1978 passed by learned Additional District Judge, Karachi, whereby appeal filed by appellant/ tenant against the order of ejectment has been dismissed.
2. Briefly stated the facts are that respondent/landlord filed application for ejectment of appellant/tenant on 27-1-1970 under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the grounds of default in payment of rent and damage to the demised premises. The disputed premises are residential accommodation in House No, 2/57-E in Pakistan Employees Co-operative Housing Society and the rent claimed in the said application is at the rate of Rs, 275 per month payable in advance in addition to water and electricity charge and conservancy tax. There is also lease-agreement Exh. 6 on the record executed by the parties on 1- 10-1967 which was valid for one year. It is alleged in the application that the tenant was regular in the payment of rent for 3 or 4 months in the beginning and thereafter remained persistent defaulter. There is also allegation in the application that tenant has committed violation of the terms of the rent note and has broken one door, demolished compound wall and fitted one air- conditioner in the wall without permission of the landlord. Written statement was filed by the tenant in which allegations are denied and it is stated that after the expiry of the agreement, the tenancy, continued at the monthly rate of Rs, 250 which the landlord has been accepting as the reduced rent. Allegations with regard to damage to the premises in question were also denied. Keeping in view the pleadings of the parties the learned Rent Controller framed the following issues :-
(1) Whether the parties reduced by mutual consent the agreed rate of rent from Rs, 275 to Rs, 250 per month. If so when and how and with what effect ?
(2) Whether the opponent committed default in payment of agreed rent. If so what is the total amount of arrears of rent due and recoverable from the opponent ?
(3) Whether the opponent has not paid water tax, conservancy charges, electricity charges and cost of gas burners up to date. If not to what effect ?
(4) Whether the opponent has damaged the premises and impaired its value.
(5) Whether the opponent is liable to be ejected as prayed ?
3. Landlord Syed Muhammad Naseer examined himself before the Rent Controller and stated that the tenant paid rent at the rate of Rs, 275 per month for first for months of the tenancy and thereafter started paying rent at the rate of Rs, 250 and that also irregularly. The tenant pleaded financial stringency and assured the landlord to make up the difference later of Rs, 25 in the rate of rent. The landlord has further deposed that the tenant has to show him accounts that he had paid other charges incidental to the tenancy. Landlord also averred that he has been issuing receipts of rent to the tenant and has been accepting the rent from the tenant by way of cheques. In cross- examination the landlord has admitted that he has accepted cheques from tenant at the rate of Rs, 250 per month for about three to for years.
4. Tenant Hyder Khan has testified before the Rent Controller that he is paying the rent for premises in dispute at the rate of Rs,'250 per month and the claim of the landlord for rent at the rate of Rs, 275 le: not correct. He has further stated that the landlord has not clarified in the application as to for what period default is alleged him. He has also stated that he is paying other charges regularly.
He has also denied allegations of damages to the demised premises in his occupation. In the cross-examination he has stated that in the beginning the rent was 275 but after expiry of agreement it was reduced to Rs, 250 by the consent of the landlord which. He continued paying regularly by cheques. It is further stated by him that he has receipts to show that rent was accepted from him at the rate of Rs, 250.
5. After assessing the evidence produced by the parties the learned Rent Controller gave finding in negative on the issues that by mutual convent, rate of rent was reduced from 275 p. m. To Rs 250 p. m. On the issue of default the learned Rent Controller has held that contention of the tenant is accepted that the rent was paid up to November, 1969 at the rate of Rs, 250. Application for ejectment was filed on 22-1-1970. After passing of the tentative rent order, the tenant has been depositing rent in the Court of Rent Controller at the rate of Rs, 250 per month as directed in the same order but since the Rent Controller came to the conclusion after the consideration of evidence that the rate of rent was not reduced by mutual consent of the parties from Rs, 275 p. m.
To Rs, 250 p. m. The landlord became entitled to arrears of rent at the rate of Rs, 25 per month as difference from February, 1968 till 31-7-1976 when the final order of ejectment was passed. The amount of arrears that way came to Rs, 2,550 as default of difference for 102 months. The learned Rent Controller has stated in his order of ejectment that the tenancy, after expiry of agreement, has been held over on the same terms and conditions and the tenant is liable to pay rent at the rate of Rs, 275 as mentioned in the agreement, So for issues with regard to the payment of charges incidental to the tenancy and damage to the demised premises are concerned the Rent Controller found them against the landlord and ultimately granted ejectment on the ground of default as stated above. In appeal filed, by the tenant, the learned Additional District Judge has agreed with the findings of the Rent Controller and has maintained his order in the result the said appeal came to be dip missed.
' I have heard the learned Advocates appearing for the parties in detail and have gone through the record. It appears from the perusal of the judgments of the Courts below that both the Courts have relied upon the decision of cases of Muhammad Ashraf v, Muhammad Sharif and others (1) and Syed Riaz Ali v. Shabbir Ahmed (2). In the first reported decision mentioned above it is held that if the tenant continues in possession after termination of tenancy he is to be the two have held over the tenancy on the same terms and conditions as stipulated in the previous agreement. In the second reported decision it is held that a tenant in presence of written agreement could not "need evidence showing variation in terms and conditions of lease. In view of the legal position enunciated in these reported decisions, the Courts below in the instant case, have held that the appellant/tenant held over tenancy on we same terms and conditions contained in the agreement which had expired and rent payable was Rs, 275 as stipulated in the agreement and was not subset gently reduced to Rs, 250 as claimed by the tenant. The facts of the Labe re case are that tenant Muhammad Ashraf obtained possession of &yip from landlord Muhammad Sharif under agreement of tenancy effective for a period of 11 months from 1st September, 1967 to 31st August, 1968. The monthly rent of Rs, 250 was to be paid in advance on the first of each month and the premises were to be vacated by the tenant on one month's notice. However, the tenancy continued to remain in possession or the expiry of the period of lease but did not pay any advance rent for the months of September and October, 1968 in accordance with agreement. The rent for September, 1968 was sent by the appellant to the landlord by means of a money order on 25th October, 1968 arid for the month of October on 4th of November, 1968, but the landlord refused to receive same.
He moved the Rent Controller for ejectment of the tenant and the application was accepted by the Rent Controller against which the tenant filed appeal which was rejected by the learned Additional District Judge /Against which second appeal was filed in the High Court which also failed, The tenant went into Letters Patent Appeal, which was decided by the Revision Bench of the Lahore High Court in which it has been held that the definition of term "tenant" in clause (1) of section 2 of West Pakistan Rent Restriction Ordinance, 1959 includes tenant continuing in possess on after termination of tenancy in his favour. Definition, however, does {{FOOT NOTE}}
(1) P 1, D 1971 Lah. 616 (2) 1971 SCR 598 {{FOOT NOTE}} ' not indicate terms and conditions by which such tenant is governed after the termination of tenancy and as such tenant having held over tenancy after termination of lease must be deemed to be governed by terms and conditions applicable under the agreement of tenancy which had terminated. Case would fall in first category mentioned in clause (1) of subsection (2) of section 13 if the previous agreement contained stipulation of the date of payment. If previous agreement stipulated that rent was to be paid in advance on first of every month and if rent is not so paid or tendered within 15 days after expiry of specified date, tenant would be in default and would not claim 60 days allowed in cases falling under latter part of section 13(2)(1). It has further held that the proposition that the principles and provisions of Transfer of Property Act are not to be applied to statutory tenants created or governed by the Ordinance, is indeed based on good authority.
Reliance was placed on the case-law cited and thereafter it has been further held that this however, does not end the matter and the question by which a tenant continuing in possession after the termination of tenancy is to be governed. On page 614 in paragraph 8 in the reported case, it is held as under .- "Generally speaking, in all agreements of tenancy usually three things are provided for ; (a) the rate of rent (h) the mode of payment and (c) the period of tenancy. The learned counsel concedes that in the present case the rent payable by the appellant is at the rate of Rs, 250 per mensem, that is the rate at which he was paying under the agreement of tenancy. In other words, in spite of the termination of the tenancy by efflux of time the tenant continued to be governed by at least one of the terms of the expired agreement. How, is there any logical, rational or legal basis for saying that the other term of the tenancy regarding the mode of payment could not be imported into such a case. The answer, to or mind, must be in the negative, for the reason that although a tenant continuing in possession after the expiry of the tenancy is deemed to be a tenant within the definition as given in the Ordinance, yet the Ordinance itself does not specify the terms and conditions on which such a tenant shall continue in possession ; and therefore, we must of necessity presume that the intention of the law is that he shall continue on the old terms and conditions. This conclusion arises not because of the application of section 116 of the Transfer of Property Act relating to tenant's "holding over" but because this appears to be the intention of the statute itself under which the appellant claims to be a tenant. By according statutory recognition to the position of a tenant who continues in possession of the demised property after termination of the lease the statute does not seek to introduce new terms and conditions of tenancy except continuing it beyond the stipulated period. Accordingly, we are of the view that a tenant continuing in possession after the termination of the lease must be held to be governed by the same terms and conditions as were applicable to him under the agreement of tenancy which has terminated?'
' It is very clear that the facts of the reported case as stated above are different from the facts of the instant case and in the instant case one major difference is that rate of rent is not admitted to be in accordance: with the previous agreement but is disputed between the parties, In the reported case the rent at the rate of Rs, 250 per mensem was contemplated by the agreement and was continued to be paid and accepted after the expiry of agreement. In the instant case in the agreement the rent was payable at the rate of Rs, 275 and the case of the tenant is that after the expiry of agreement the rent was reduced to Rs, 250. It is in these circumstances that one could say that facts of the instant case are different. Not only this but in the instant case as the record reveals that keeping in view the pleadings of the parties the learned Rent Controller framed the very first issue which is as under :- "Whether the parties reduced by mutual consent the agreed rent from Rs, 275 to Rs, 250 per month, if so when and how and with what effect 7'
' Not only this but the tentative rent order passed by the learned Rent Controller on 7-5-1970 clearly indicates that the tentative rent was fixed at the rate of Rs, 250 for the reason that the tenant produced before the Rent Controller receipt showing acceptance of rent by the landlord at the rate of Rs, 250 per month for the month of November, 1969. It is not understandable as to why this receipt which was produced by the tenant before the Rent Controller at the time of pending of tentative rent order was not retained on the record. The tentative rent order does not state that the receipt was returned to the tenant to be produced by him at the time of evidence but the learned Rent Controller in his final order of ejectment has observed that the tenant had shown the receipt to the Rent Controller at the time of tentative rent order but could not produce the same when his evidence was being recorded. The learned Rent Controller in his final order has observed that the tenant had shown receipt of Rs, 250 for November, 1969, which was taken into consideration by his predecessor, who believed the tenant that he had paid rent up to November, 1969 at the rate of Rs, 250 per month and the learned Rent Controller in his final order has further accepted this position that the rent has been paid upto November, 1969 at the rate of Rs, 250. Another feature of this case is that after the passing of tentative rent order, the tenant continued depositing rent in the court as per terms of tentative rent order at the rate of Rs, 250 per month. The learned Rent Controller came to the conclusion at the final hearing that the rent payable by the tenant was at the rate of Rs, 275 per month as stipulated in the agreement which had expired and that the tenant had failed to produce evidence to satisfy the Rent Controller that the rent was reduced to Rs, 250 after the expiry of agreement as claimed by the tenant. So far this point is concerned, I have seen the evidence of the landlord wherein he has admitted that the tenant started paying rent at the rate of Rs, 250 which he accepted by cheques for about 3 to 4 years. The claim of landlord is that he accepted reduced rent from Rs, 275 to Rs, 250 at the instance of the tenant on the assurance that it was a temporary measure in view of financial difficulties of the tenant and he would pay the difference of Rs, 25 per month as arrears of rent. The landlord has also admitted in his evidence that he did not give any notice to the tenant demanding rent at the rate of. Rs, 275 per month. The tenant in his evidence has insisted that he had been paying rent at the rate of Rs, 250 per month after the expiry of agreement as was agreed between the parties and he has been making the payments of rent at the reduced rate by way of cheques, which was accepted consistently by the landlord who sometimes issued receipts also. The tenant could not produce receipts on the ground that they were misplaced although he was given several opportunities by the learned Rent Controller. The tenant has stated in his evidence that he has been paying rent at the reduced rate through cheques and he would produce documents from the bank to show that he has been paying rent at the rate of Rs, 250 which was being accepted by the landlord without demur. It appears that no opportunity was given to the tenant to produce documentary evidence from the bank to prove his assertion. Both the Courts below have held that the tenant has failed to produce evidence to support his assertion that he had paid reduced rent at the rate of Rs, 250. The learned Additional District Judge in his judgment has observed as under :- ' The plea set up by the appellant is that after the expiry of period of agreement the rate of rent was reduced from Rs, 275 to that of Rs, 250 per month which was paid by the appellant and was accepted by the respondent. In this respect, it may be pointed out that there is no evidence to show that the rate of rent was reduced from Rs, 275 to that of Rs, 250 per month rater the expiry of the said agreement which of course is denied by the respondent that he ever agreed to reduction of rate of rent."
' It would not be out of place to mention here that the observation made by the learned Additional District Judge that there is no evidence to show that rate of rent was reduced from Rs, 275 to that of Rs, 250 per month after the expiry of the said agreement, is not consistent with the record and factually speaking is not correct. The reasons are firstly that although the landlord has not stated in his application for ejectment that the rent was reduced and was accepted by him at the rate of Rs, 250 from the tenant, but when such plea was taken by the tenant in the written statement, the landlord admitted in his deposition before the Rent Controller that the tenant started paying rent at the rate of Rs, 250 per month and that also irregularly. It was further testified by the landlord that the tenant undertook to pay the difference of Rs, 25 per month in the rate of rent as arrears of rent subsequently. Not only this but in his cross-examination the landlord has categorically admitted that after the termination of the period of agreement, he accepted the rent from the tenant by way of cheques at the rate of Rs, 250 per month for about 3 or 4 years. In view of this categorical admission by the landlord that he accepted rent from the tenant as stated above, there is hardly any need to look for further evidence on the record. Secondly having clearly admitted acceptance of rent at the reduced rate of Rs, 250 per month for about 3 or 4 years after expiry of agreement, the landlord has made positive assertion that he did so only on the assurance given by the tenant that difference of Rs, 25 per month in the rent would be paid by the tenant as arrears. Nov to prove this assertion the burden lies upon the landlord and he has produced no evidence to substantiate this claim. The landlord has admitted in his evidence before the Rent Controller that he did not send any notice to the tenant directing him to pay the rent at the rate of Rs, 275 per month as stipulated in the agreement which had expired. The landlord has further produced no evidence not even oral evidence to prove that the tenant gave him such assurance. In such circumstances it is not believable that landlord would raise no objection and go on accepting the rent at the reduced rate for 3 or 4 years without even notifying the tenant in writing that he is doing so at his request and is reserving his own right to claim arrears of the difference of Rs, 25 per month. There is no even an iota of evidence on the record to show that the tenant had given assurance to the landlord that because of financial difficulties he would not pay the rent at the rate of Rs, 275 per month and offered to pay Rs, 250 per month as reduced rent with promise to pay the difference of Rs, 25 per month later. On the other hand record shows that tenant had stated in his evidence before the Rent Controller that he is employed in P I A as Captain in flying operation. It is also admitted by the landlord himself in his application for ejectment that the tenant fitted an Air conditioner in the demised premises. In such circumstances it does not appeal to reason that the tenant, who is a well-to-do, person, would express his inability to pay Rs, 25 per month and request the landlord to reduce the rent and would give him assurance that he would pay up the balance at the rate of Rs, 25 per month later on. Thirdly that the tentative rent order proves that a receipt for the month of November, 1969 was produced by the tenant before the Rent Controller, who accepted the plea of the tenant and directed him to deposit rent in the Court at the rate of Rs, 250 per month. On the basis of this tentative rent order, the tenant continued to pay the rent at the rate of Rs, 250 per month throughout the proceedings till the final order was passed. Fourthly even in the final order of ejectment passed by the learned Rent Controller it is conceded that the rent has been paid by the tenant upto November, 1969 at the rate of Rs, 250 per month.
It is obvious from the order of ejectment that there is no other default except on the basis of difference of Rs, 25 per month, if it is accepted that tenant was liable to pay rent at the rate of Rs, 275 per month as stipulated in the agreement and was not reduced to Rs, 250. This basis can be accepted only when there is sufficient evidence on the record produced by the landlord that he had, accepted the rent at the reduced rate of Rs, 250 per month on the assurance of the tenant that he would pay up the arrears on the difference subsequently. The landlord has produced no such evidence an since this assertion was made by him, onus of proof is upon the landlord.
Secondly it is doubtful whether in such circumstances when the landlord accepts the rent at the reduced rate on the promise of the tenant that h would pay up the differences later, he can hold the tenant liable for default because in that case default is continuously condoned by the landlord.
In these circumstances and for the reasons stated above I hold that there no evidence on the record to prove default on the part of the tenant and they is no evidence to show that the tenant had promised to the landlord to pay up the difference subsequently. On the other hand the evidence brought on the record clearly shows that after expiry of agreement the rent was reduced by consent of the landlord from Rs, 275 to Rs, 250 per month which the tenant has been paying regularly.
' Both the Courts below have relied upon 1971 SCMR 598 which is not applicable to the facts of the present case for the reason that it has been held in the reported case that the tenant in present of written agreement could not lead evidence showing variation in terms and conditions of the lease.
In that case the plea of the tenant was that landlord had accepted the rent periodically in lump sum while the condition in the lease deed was that rent for each month was payable in succeeding month and the tenant had committed default for 10 months. Although he had produced a receipt showing that landlord had accepted the rent but it was held by the Supreme Court that the landlord had condoned the default but had not consented to vary the terms and conditions of the lease regarding the payment of rent which was operative at that time. This ruling as not attracted to the facts of the case under-consideration as in the instant case the agreement was executed on first October, 1967 and was operative for one year, which had already expired and the ejectment application was filed on 22-1-1970.
' For the reasons and facts mentioned above I set aside the impugned judgment and final order of ejectment passed by the Rent Controller allow the appeal with no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.