ANWARUL HAQ, C. J.--This appeal under clause 10 of the Letters Patent has arisen out of an order made by our learned brother K. E. Chauhan, J., on the 4th of June 1970, whereby he has dismissed in limine a second appeal brought by the tenant against an order of ejectment made by the learned Rent Controller on account of default in the payment of rent of the shop in dispute.
2. The appellant Muhammad Ashraf obtained possession of the shop from the respondent Muhammad Sharif under an agreement of tenancy effective for a period of 11 months from the 1st of September 1967 to the 31st of August 1968. The monthly rent of Rs, 250 was to be payable 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 tenant continued to remain in possession on the expiry of the period of the lease but did not pay any advance rent for the months of September and October 1968 in accordance with the agreement. The rent for September 1968 was sent by the appellant to the landlord by means of a money order on the 25th of October 1968; and for the month of October on the 4th of November 1968, but the landlord refused to receive the same. He moved the Rent Controller on the 27th of November 1968 for the ejectment of the appellant. This application was accepted by the learned Rent Controller by his order dated the 29th of January 1970, and the tenant's appeal was rejected by the learned Additional District Judge of Multan on the 24th of September 1970. As already stated, the second appeal filed by the tenant has also failed.
3. It is contended by Mr. M. A. Bajwa, the learned counsel for the appellant, that the entire proceedings taken against the appellant in the Court of the Rent Controller stand vitiated on account of the fact that the application for ejectment was moved not only by the original landlord Muhammad Sharif but by three other persons without complying with the provisions of section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), relating to the transfer of ownership of the demised property during the subsistence of the tenancy. It is further submitted that as the appellant continued to be in possession of the property after the expiry of the agreement of lease, he was to be deemed to be a tenant in terms of the definition as contained in clause (i) of section 2 of the Ordinance, and as such he was to be governed by the statutory provisions contained in subsection 2(i) of section 13 of the Ordinance allowing the payment of rent within a period of sixty days from the date it became due : but all the Courts which have dealt with the case so far have erroneously applied the principles embodies in section 116 of the Transfer of Property Act in recording a finding of default against the appellant. Mr. Bajwa has next contended that in any case there was no wilful default on the part of the appellant and the learned Rent Controller should have exercised his discretion in favour of the tenant. Lastly, a feeble contention has been put forward to the effect that the rent deed was not admissible in evidence as it was not registered and it should not, therefore, have been brought on the record as a proved document.
The first contention was not raised at all before the Rent Controller nor before the learned Additional District Judge in appeal, and even before the learned Single Judge it was only argued that the ejectment application was not competent as it had been brought not by Muhammad Sharif alone but by some other persons as well. The learned Judge observed that it was well- settled that a case was not to be dismissed by reasons merely of misjoinder of parties, and so long as Muhammad Sharif was among the persons seeking the appellant's ejectment, the application was properly presented.
5. Dealing with the contention as raised before us, we find that section 13-A of the Ordinance contemplates that "where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him". It will be seen that the said section comes into play only when the transfer of ownership has taken place during the subsistence of the tenancy. Now, in the present case, it is neither alleged, nor is there any evidence on the record to show, that the ownership of the disputed shop had been transferred by Muhammad Sharif to the other applicants, who had joined with him, during the subsistence of the tenancy. If the appellant wanted to take benefit of the provisions contained in section 13-A of the Ordinance, then it was necessary for him to bring on record evidence in this behalf, but that has not been done. Therefore, the question of the applicability of section 13-A would require the production of evidence for its proper decision. An appeal under the Letters Patent is hardly an appropriate stage to permit the production of additional evidence in regard to a question which was not at all raised at the trial and during the first and second appeals. We consider, therefore, that no question arises of invoking section 13-A of the Ordinance at this stage.
6. It is correct that the appellant falls within the definition' of the term "tenant" as contained in clause (i) of section 2 of the Ordinance which lays down, inter alia, that the term tenant includes a tenant continuing in possession after the termination of the tenancy in his favour. The definition in question does not contain any indication as to the terms and conditions by which such a tenant is to be governed after the termination of the tenancy in his favour. The contention of the learned counsel for the appellant is that the tenancy being a statutory one in terms of the definition given in the Ordinance, the terms and conditions must be spelt out from the Ordinance and not from the previous agreement of tenancy, with the result that the tenant had to pay rent within sixty days of its falling due and not in advance as contemplated in the previous agreement. It is submitted by Mr. Bajwa that it is not permissible in such a case to apply the principles embodies in section 116 of the Transfer of Property Act in respect of tenants "holding over".
7. The proposition that the principles or provisions of the Transfer of Property Act are not to be applied to statutory tenancies created or governed by the Ordinance, is indeed based on good authority. We may in this behalf refer to Sh. Muhammad Nawaz v. Muhammad Azeem and others , Ismail v. Muhammad Siddik , Faqir Chand v. Bibi Zulekha , Subhanali alias Sabho v. Mst. Satbai , Dr. Muhammad Fazil Zaheer and others v. Mst. Begum Jan and others and Ghulam Muhammad Khan Lundkhor v. Safdar All . This, however, does not end the matter, and the question still remains as to what are the terms and conditions by which a tenant continuing in possession after' the termination of the tenancy is to be governed.
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 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 continues to be 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 a 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 positions 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 (i) 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 fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or, in the absence of any such agreement, within sixty 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 (i) 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 fifteen 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.
10.The remaining two contentions were not raised before the learned Judge in Chambers and do1 2 3 4 5 6 not, therefore, really arise from the order under appeal. It is clear that the appellant's " failure to pay rent by the stipulated date or within the extended period of fifteen days allowed by the statute would amount to wilful default, as it has not been shown that the non-payment was due to unavoidable factors (see PLD 1967 SC 530).
11.The objection as regards the admissibility in evidence of the rent deed is misconceived, for the reason that on the appellant's own showing the tenancy was for a period of eleven months ending with the 31st of August 1968. The law does not require such an agreement of lease to be registered.
Further, the document was being used, if at all, for the collateral purpose of ascertaining the mode of payment, and not as the basis of the tenancy which has been found to be a statutory tenancy in terms of clause (i) of section 2 of the Ordinance. Finally, the two essential terms of the previous tenancy, namely, the rate of rent and mode of payment stand admitted by the present appellant and, therefore, the exclusion of the agreement from evidence would make no difference to the decision of this case.
12.For the foregoing reasons, the appeal fails and is hereby dismissed, but in view of the legal question involved we leave the parties to bear their own costs. PLD 1961 Lah. 788 P LD 1961 Kar. 111 PLD 1962 Pesh. 1 PLD 1964 Kar. 206 PLD 1966 Lah. 53 PLD 1967 SC 530