' This is an appeal against the judgment and order of the learned Additional District Judge, Karachi delivered on 20-8-1978. Learned Additional District Judge dismissed the appeal ordering the eviction of the appellant/ tenant.
2. The facts briefly described are that take appellant entered into written rent deed on 12-2-1965 with the respondent/landlord whereby the appellant became the tenant of the ground floor (except the Garrage) of the property No, 3-C/5-11 Nazimabad, Karachi at Rs, 400 per month to be payable on or before the first of each English calendar month. The rent deed was initially for 11 months only and it was agreed that the renewal of the rent deed shall be made by a fresh agreement to be executed one month prior to the expiry of the rent deed. The respondent/landlord filed Rent Case No, 3041 of 1968 against the appellant for ejectment in which the defence of the appellant/ tenant was struck off by order dated 20-11-1969 and he was directed to deliver the vacant possession of the premises to the respondent/landlord within 30 days. However somehow the Execution Application was not filed and the appellant/tenant was allowed to continue as a tenant on the samerent. Then a fresh rent application was filed in which it was alleged that the appellant/tenant has committed default in payment of the rent for the month May and June, 1973 and that the appellant despite repeated demands failed and neglected to pay the same and was in arrears of rent amounting to Rs, 800. This application, however, was decided by the Rent Controlled ordering eviction of the appellant/tenant.
3. In his written statement appellant/tenant admitted the tenancy between himself and the respondent and the rate of rent. The appellant further denied that he has committed any default in payment of rent as alleged. He contended that by way of practice and understanding between the parties, the respondent/landlord used to collect the rent himself personally and that the appellant was forbidden to pay the rent to anyone else. The appellant always paid the rent through cheque.
The respondent avoided receiving the rent from the beginning of the year 1973 and that the appellant with great difficulty managed to pay the rent to him for the months of February to April, 1973. However he flatly refused to receive the rent for the months of May and June, 1973 paid through cheque and that the appellant again sent the cheese to the respondent at his shop but the respondent again refused to accept the same. Thus the appellant/tenant started depositing the rents in the Court from the month of May, 1973 in Misc. Rent Application bearing No, 1708 of 1973.
On the pleadings of the parties the learned Rent Controller framed the following issues:-
(1) Whether the opponent failed to tender rent to the appellant within time and has thus committed default in payment of rent within the meaning of W. P. U. R. R. Ordinance, 1959 ?
(2) What should the decree be ?
' The first issue was answered in affirmative and hence the ejectment was ordered.
4. Mr. Akhtar Mehmood the learned counsel argued the appeal on behalf of the appellant/tenant while on behalf of the respondent/landlord the arguments were advanced by Mr. Malik Saeed, Advocate.
5. The points raised by the counsel Akhtar Mehmood for the appellant are briefly :-
(a) That the original written rent deed dated 12-12-1965 ended on 20-11-1969 when the defence of the appellant was struck off in case No, 3041/68 and it was ordered that the vacant possession of the premises be delivered to the respondent within 30 days. For all the purposes the rent deed ended and was dead on the date 20-11-1969.
(b) An oral agreement was entered into by the parties subsequently and the appellant/tenant was allowed to continue as a tenant. Therefore, since the original rent deed was dead and the fresh rent deed was oral in nature the time for tendering the rent due would be within 60 days and not within 15 days as is provided by section 13 (2) (I). The rent for the month of May, 1973 became due for payment under the old rent deed on 1-6-1973 and since the fresh agreement was not in writing, the tenant was entitled to make payment within 60 days from 1-6-1973 1. e. On or before 31-7-1973. The rent for the month of June, 1973 similarly would be due on or before 30-8-1973, while the rent for the months of May and June, 1973 was paid in Court at the request of the appellant/tenant on 31-7- 1973, thus there is no default on the part of the appellant. He has relied on judgment of Supreme Court repotted in PLD 1980 SC 298. A judgment of the Division Bench of the High Court of Lahore reported in PLD 1971 Lab. 610 was also referred and the learned counsel stated that the Supreme Court has superseded the said judgment of the Division Bench.
6. The arguments of Mr. Malik Saeed, Advocate for the respondent/ landlord are that the fresh oral agreement did not come into existence whatsoever nor it is contended in the written statement, when after the date 20-11-1969 the same rate of rent was being tendered by the appellant/tenant.
There was no fresh agreement with varied and changed terms and conditions as such the same agreement continued and was not dead. He also relies on the same authorities quoted by the learned counsel for the appellant.
7. The view taken by the Division Bench of Lahore High Court in their judgment reported in PLD 1971 Lah. 610 is as under. I would like to quote paras. 8 and 9 of the said judgment :- "8. Generally speaking, in all agreements of tenancy usually three things are provided for (a) the rate of rent, (b) 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 menses, 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 continues to he governed by at least one of the terms of the expired agreement. Now, 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 cases. The answer, to our 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 tenants "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.
9. We may now turn to the provisions contained in clause (1) of subsection (2) of section 13 of the Ordinance dealing with the question of default. According to these provisions, default is committed after the tenant does not pay or tender rent due from him within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord, or, in the absence any such agreement, within 60 days from the period for which the rent is payable. In view of our finding that a tenant continuing in possession after the termination of the tenancy does so on the terms and conditions embodied in the previous agreement, it is clear that such a case falls in the first category mentioned in clause (1) aforesaid, if the previous agreement contains any stipulation as to the date of payment of rent. In the present case, as already stated, the agreement stipulated that the rent was to be paid in advance on the first of every month, and therefore if it is not so paid or tendered, within 15 days after the expiry of the specified date the tenant would be in default. As the appellant did not pay or tender rent for September, 1968 until the 25th of October, 1968, and for the month of October, 1968 until the 4th of November, 1968, he was clearly in default within the meaning of clause (1) of subsection (2) of Section 13 of the Ordinance. The learned Rent Controller as well as the Appellate Authority and the learned judge in chambers were, therefore, right in recording a finding to this effect against the appellant."
8. The above view of the Lahore Division Bench was not favoured by the Supreme Court in a judgment reported in PLD 1980 SC 298. (however, Nasim Hasan Shah, J. Dissented). I shall quote from the judgment of the Supreme Court "The respondent's case however is supported by. a judgment of the Lahore High Court in Muhammad Ashraf v. Muhammad Sharif and Mr. Rahimtoola relied on it, because the view taken by the court was that a tenant's liability to pay rent continues to be governed by the term of the lease agreement even after the expiry of the lease. And in dismissing the tenant's appeal, on facts almost identical to those in the instant case, the Court observed that the said 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 . . . By according statutory recognition to the positions of a tenant who continue 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 beyond the stipulated period."
' We pointed out that the provisions of the said Ordinance are of an overriding nature, and they regulate in considerable detail the rights and the liabilities of lessors and lessees. Therefore, in our humble opinion, the proposition that the said Ordinance "does not seek to introduce new terms and conditions of tenancy except continuing it beyond the stipulated period", is much to wide. There may be lease agreements which are not inconsistent with the provisions of the said Ordinance, but such cases would be the exception rather than the rule. Therefore, with the utmost respect, for the reasons, which we have given, we are unable to agree with the view taken by the Lahore High Court in Muhammad Ashraf's case.
' As, in our opinion, the rights and liabilities of the appellant, in the instant case, are governed exclusively by the said Ordinance, the question of the amount of rent due from him has to be determined in accordance with the provisions of clause (1) of subsection (2) of section 13 of the said Ordinance. Under this clause, a tenant has to pay the rent due from him "within 15 days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within 60 days from the period for which the rent is payable". The words "the agreement of tenancy" mean an agreement which is in force, and not any agreement which has expired and is dead. Therefore, in the instant case, when the respondent filed his eviction application on the 9th of May, 1970, the appellant was in default in the payment of rent for the month of December, 1969, and for the months of January and February, 1970. The rent thus due from him was Rs, 600. But, as against this, the respondent bad failed to return to the appellant the "security deposit" of Rs, 1,000 despite the expiry of the lease agreement. The respondent was no doubt entitled to deduct the electricity charges before returning this amount, but even after deducting these charges, the amount lying with him far exceeded Rs, 600."
' Nasim Hasan Shah, J. Dissented from the judgment in the following words :- "I am in respectful agreement with the final conclusion arrived at by my learned brother that the appeal be allowed, as I agree with him that the default by the appellant was only a technical one and the discretion ought to have been exercised in his favour. I would, however, not agree with him that the case entitled Muhammad Ashraf v. Muhammad Sharif, on which Mr. Rahimtoola advocate, for the respondent, relied, has been wrongly decided. However, as I am in agreement with my learned brother that the appeal ought to be allowed on the other ground, namely that in the circumstances which have been fully set out in his judgment, the discretion was liable to be exercised in favour of the appellant, it is not necessary for me to discuss the other aspects of the matter in further detail and would allow the appeal on this ground."
9. Although fresh oral agreement is not proved, neither in the written statement nor in the evidence of the respondent/landlord there is any mention of the oral fresh agreement, however, it is true that the original lease deed was for 11 months and it continued till an application for eviction was filed in the year 1968. Thereafter there is no written agreement between the parties nor there is any oral agreement as it was continued. The same rate of rent was payable by the tenant and it was sometimes paid by cheque. However, the rent deed did end on two scores firstly because it was for 11 months and secondly rent application dated 1-12-1968 was decided on 20-11-1969 whereby the tenant was ordered to be evicted. The view held by the Supreme Court is to be followed and as such there does not appear to be any default on the part of the appellant/tenant. The appellant/tenant had to deposit the rents within 60 days under latter part of section 13, clause 2 (i).
In this view of the matter, appeal is allowed with no order as to costs.