This Second Appeal by the tenants is directed against judgment of the First Appellate Court allowing the landlady's appeal and ordering the tenants eviction on the ground of non-payment of rent. The facts are that respondent landlady who is a transferee under the Settlement law of the shop in dispute gave a section 30 notice dated 2-12-1960 which was addressed to appellant No. 1 Mohammad Bux only. Some years later, in 1967, the landlady moved an eviction application against Muhammad Bux on the ground of default and personal use. In the application it was alleged that section 30 notice bad been addressed to Muhammad Bux, the validity of such notice was not disputed by the tenant. That rent appli--cation was dismissed on merits.
2. On 14-10-1970 another rent application was moved, this time against both Muhammad Bux, the appellant No. 1 herein and Muhammad Hussain, the appellant No. 2 herein, in which it was alleged that the landlady did not know that the shop was in joint occupation of both the appellants and accordingly Muhammad Bux alone was accepted by her as tenant but in April, 1970 the position had been clarified for the first time and accordingly section 30 notice had been addressed to both the occupants/appellants under registered acknowledgment due. It was alleged in this application that the appellants had not paid rent since July, 1968 and that rent upto June, 1969 was payable at Rs. 40 per month and from July, 1969 at Rs. 80 per month according to the -latest Municipal assessm ent. 1n the written statement the appellants took up the position that the rent had been paid upto September, 1969 for which they held valid receipts and that rent from October, to December, 1969 at Rs. 40 per, month was sent to the landlady by money orders which she refused to accept and that the appellants Were at all times ready and willing to pay rent at Rs. 40, per month. In other words they dis--puted the landlady's demand for payment rent at Rs. 80 per month.
3. The Rent Controller came to the conclusion that rent bad been paid upiQ3D-9-1969. He further found that the landlady knew that the appellants were running business in the shop in dispute as partners and accordingly she was bound by the previous decision when the earlier rent application was dismissed and that if she wanted to claim rent at the enhanced rate of Rs. 80 per month she could do so only after obtaining appropriate orders from the Controller either under section 4 or section 9 of the West Pakistan (Urban Rent Restriction) Ordinance, 1959. The application was dismissed.
Mr. Kburshid Anwar, the learned counsel for the appellants in support of this Second Appeal firstly contended that the First Appellate Court was wrong in coming to the conclusion that the landlady was entitled to recover rent at Rs. 80 per month inasmuch as the property was transferred in favour of the landlady way back in 1960, she had given notice on 2 12-1960 to one of the occupants who were to the knowledge of the landlady carrying on business in partnership with the other occupant in the name and style of Akhlaque Silver Stores", and, therefore the parties ceased to be governed by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the expiry of six years commencing from 2-I2-1960, after which they would be governed by the ordinary law relating to landlord and tenant, namely, the Rent Restriction Ordinance under which a landlord is not entitled to enhance rent without obtaining prior permission from the Rent Controller and, therefore, the demand for payment of rent made in the year 1970, on the basis of latest assessm ent, was not in accordance with law.
6. Mr. Ismail Munshi, the learned counsel for the respondent on the other hand contended by reference to several decisions that the land--lady was entitled to payment of rent as per enhanced assessm ent but in all these cases the increased assessment was made within a period of six years from the date on which the notice of transfer was given by the transferee to the occupants. I am, therefore, inclined to agree with the learned counsel for the appellants that after the expiry of six years from the date of notice under, section 30 dated 2-12-1960 the parties were governed by the Rent Restriction Ordinance, 1959 and the landlady was not entitled to demand enhanced rent without first seeking requisite permis--sion from the Rent Controller. Even if I were to hold that the position had changed by virtue of the fact that the landlady had given notice under section 30 afresh on 14-4-1970, which was addressed to both the occupants, a new situation had been created by the landlady and if there was some justifiable apprehension that a fresh period of six years contem--plated by section 30 cannot be so created enabling the landlady to claim rent on the basis of enhanced assessm ent after the- expiry of six years from the earlier notice/under section 30 and the tenant was always ready and willing to pay rent at Rs. 40 per month, there was not such wilful default as must result in an order of eviction. The landlady bad herself served the notice on one of the occupants who was carrying on business in partnership with the other occupant and earlier filed an eviction applica--tion in which no issue was raised as to the validity of section 30 notice. In these circumstances the appellants were entitled to assume that the period of six years provided for in section 30 of the said Act started from the date on which the first notice was. Received and on the expiry of six years thereof the parties were to be governed by the Rent law.
7. The second ground on which the First Appellate Court based the eviction order that no rent was sent after January, 1970. This is no doubt correct for rent was not sent even at Rs. 40 per month after January, 1970. I may, however, refer to the landlady's notice dated 10th April, 1970 in which she demanded rent at Rs. 80 per month from I st of July, 1969 according to the latest Municipal assessm ent. This demand even on the assumption that rent could have been demanded at Rs. 80 per month would have been valid from the date of this notice and not from 1st of July, 1969. See Ghulam Rasul v. Ghulam Rasul (1977 SCMR 147) and Mohomed Ismail v. Mohomed Sharif (PLD 1975 Lab. 321). In reply the tenants referred to the three money orders which they had sent representing rent from October to December, 1969 at Rs. 40 per month which was refused by the landlady on the ground that the tender was incorrect inasmuch as she was entitled to tent at Rs.
80 per month while the money orders were for rent at Rs. 40 per month. In reply it was, also mentioned that the landlady may collect the rent in arrears since October, 1969 at Rs. 40 per month at which rate the tenants were and continued to be ready and willing to pay rent. There was, therefore, on the part of the: tenants readiness and willingness to pay rent at Rs. 40 per month and it cannot, therefore, be paid that there was wilful default in payment of rent. In similar circumstances in the case of Muhammad Ismail v Muhammad Sharif .Discretion was exercised by the High Court in favour of the tenant.
9. Mr. Ismail Munshi, invited my attention to a case reported in Yousuf Shah v. Ghulam Jan Khan (1975 SCMR 464) in which it was observed as follows :- "It is well-settled that mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve a tenant to his continued liability to pay or tender the same for each successive month."
9. This appeal is, therefore, allowed but in the circumstances there will be no order as to costs.
10. C.M.A. No. 217 of 1979 is dismissed as infructuous for the learned counsel conceded that at best it would result in interim stay being discharged which is immaterial in view of the disposal of this Second Appeal.
11, C.M.A. 744 of 1980 is dismissed as inconsequential for Mr. Ismail Munshi did not support the impugned judgment on the ground that there was default in payment of rent for the periods other than found by the first Appellate Court.