1. ' MUHAMMAD ZAHOORUL HAQ, J.--These Appeals challenge the orders of ejectment made by IV Rent Controller Karachi on 6th February, 1979 and the dismissal of the appeal by VII Additional District Judge, Karachi on 25th January, 1981.
2. ' The relevant facts are that premises No,23-A/6P.E.C.H.S. Karachi were rented out by the respondent to the appellants on 6th December, 1969 by a rent agreement for a period of three years at Rs,1400 plus Rs,450 for fixtures. The same was for a period of 3 years and was extended up to 30th November, 1974 by the respondent. In 1974 the rent was enhanced to Rs, 2,000 per month.
3. According to the agreement of 1969 the rent was payable in advance on every first day of the three months' period but afterwards rent was payable from month to month. The rent had been paid in lump sum by Cheques paid in advance. In 1976 Rent Case No,3624 of 1976 was filed by the respondent against the appellants for ejectment on the ground of unauthorised additions and alterations. The same continued pending. On 3rd of January, 1977 Rent Case No, 66/76 was also filed by the respondent for ejectment of the appellants on account of default in payment of three months' rent. The appellants resisted the two applications for ejectment. They denied that they had made unauthorised alterations and they took up the position that there was valid agreement dated 6th December, 1969 between the parties. They also stated that they have filed the Suit No,66/76 where stay has been granted. They denied that they had committed any default in the payment of rent and stated that they had been paying rent to the respondent as usual and that the respondent in order to create ground for ejectment had avoided to accept the monthly rent when tendered to her.
4. ' The two applications were consolidated and issues of unauthorised alterations materially impairing the value and utility of the premises in question and of the default in payment of rent were framed.
5. ' Evidence was led by the parties. Syed Ahtisham All was examined for the respondent and the appellants examined one Nizam Ahmad Siddiqui, Syed Nawab Mohammad Yousuf and Malik Mohammad Sabah, its employees.
6. ' The Rent Controller did not believe the evidence of the appellants and on the basis of documents and agreement of lease found that there was default. The A.D.J. In appeal concurred with the findings of Rent Controller.
7. ' The findings in respect of default in payment of three months' rent viz. October to December, 1976 are thus concurrent by the two courts below and they are based on the terms of agreement which had been entered into between the parties in 1969 that the rent was payable in advance in lump sum for three months.
8. ' Counsel of appellant contended that the two Courts below have ignored the reliable and unrebutted evidence tendered by the appellant in respect of the offer of rent. This submission of the learned counsel is completely unjustified. The Rent Controller had taken into consideration the statement of Manager of appellant namely Niaz Ahmad Siddiqui, but this witness had never gone to tender any rent and therefore, his statement is of no consequence. The Rent Controller then considered the evidence of Syed Nawab All who has stated that he had gone to the landlady with a cheque of Rs,4,000 but she was not found in her house. In cross he had stated that it was second or third week of November, 1976 when he had gone to her. Rent Controller has noted that this witness had not been corroborated by the opponent's Manager nor corroborated by any documents.The Rent Controller was justified in that approach. The last witness considered by the Rent Controller was Accountant Malik Mohammad Sabah but this man was also not an eye-witness of any payment and he merely stated that he sent Nawab All with 3 cheques. But Nawab All had only deposed about only one cheque of Rs,4,000 in November. There is therefore, consistency in the statements of these two witnesses in respect of the cheque of Rs,4,000 only, but otherwise they do not support each other and hence same has not been rightly relied upon. Of course there was letter of 30th December, 1976 sent by appellants on 7th January, 1977 but there is no mention of any cheque. And most surprisingly this letter of 30th December, 1977 was in fact despatched only on 7th January, 1977. Therefore, the mere letter A of 30th December, 1976 without being accompanied by a cheque of Rs,6,000 was not a tender of rent and it remained a mere wish on the part of the appellants unsupported by any practical step. The result is that I find that Rent Controller has, in fact, considered the statements of the three witnesses of the appellants and has considered in details the documents produced by the appellant and has then rightly come to the conclusion that there was no tender of the rent. Similarly the A.D.J. Has stated that he has gone through the evidence of the witnesses who had tried to 'deliver the cheque to the landlady but the same could not be delivered as the landlady was not available at her residence.
9. ' The appellant's counsel then argued that the default was only for one month and not for three months and therefore the discretion should have been exercised in favour of the tenant. The counsel argued that there was no subsisting agreement between the parties as the agreement of 1969 had expired on 15th April, 1974 and thereafter, statutory tenancy had come into existence in view of the provisions of Sind Urban Rent Restriction Ordinance, 1959 and therefore, the terms in respect of advance payment of rent which were contained in the tenancy agreement which had expired were not binding upon the tenant/appellant. He therefore, argued that the rent of October, 1976 became due on 1st November, 1976 and could therefore,be paid within 60 days thereof namely on 30th December, 1976. The counsel relied upon Muhammad Yousuf's case PLD 1980 SC 298 where it was held by a majority judgment that the terms of expired agreement of tenancy were not binding and the tenancy is regulated by the provisions of Sind Urban Rent Restriction Ordinance, 1959.
10. ' Mr. Nasrullah Awan had on the other hand relied upon Alaf Din's case 1980 SCMR 767 where two Judges of the Supreme Court had held that all terms in the lease deed continue to operate if the tenant continues in possession of the property after the termination of the tenancy.
11. ' There appeared to be apparent difference of opinion in the two judgments of the Supreme Court cited by the two counsel and thereupon Mr. Mushtaq argued that in PLD 1981 Kar.150 and in PLD 1982 Kar. 473 two Judges of this Court have followed the law laid down in PLD 1980 SC 298. He also relied upon a decision in Second Appeal 76/73 dated 28th October, 1978 where I had taken the view that merely on ground of non-payment only one month rent which was not paid due to some reason or even inadvertence it could not be said that the tenant was in the habit of making default and that one or two mistakes made after a long period of time should not be sufficient to inflict the severe penalty of ejectment upon a tenant particularly when law allows a discretion. However, in the case before me I had found that there was a default of only 7 days in the payment of one month's rent and I had further found that the appellant in that case could not be burdened with any past bad conduct and therefore, I had exercised a discretion in her favour and condoned the delay of 7 days.
12. ' Mr. Mushtaq had submitted that in view of the difference in the two judgments of the Supreme Court referred above we should follow the view of the Supreme Court as given in PLD 1980 SC 298 and not the view in 1980 SCMR 767. His reasoning was that (Yousuf's case) was decided by a bigger Bench of four Judges while the case of (Alaf Din) was decided by a Bench of two Judges.
13. However, it is not possible for the High Court to make such distinction between two judgments of the superior Court. In fact both the judgments are having the force of law and they are binding on all other courts in Pakistan in view of the provisions of Article 189 of the Constitution of 1973. I may also state that in PLD 1984 SC 32 which was decided by five Judges in the Supreme Court including the present Acting Chief Justice, at page 36 the following observations appear- "as regards the question of default it is stated that whether it be the law laid down in Mohammad Yousuf's case in PLD 1980 SC 298 which is applied or that laid down in Alaf Din's case 1980 SCMR 767, the tenant admittedly was in default in the payment of rent for at least 3 months of October to December, 1970 and was not entitled to any equitable relief whatsoever as no reason for such default had been brought on record."
14. The above observations make it quite clear that Mohammad Yousuf's case as well as Alaf Din's case have laid down law and therefore, both the judgments are equally binding particularly when a five Judges Court on 22nd August 1983 treats the two judgments as having laid down the law.
15. ' In fact in yet another judgment. Reported in PLD 1984 SC 38, a case decided by four Judges of the Supreme Court the cases of Alaf Din and Mohammad Yousuf were again noted but no particular preference was shown in favour of one or the other. In respect of Alaf Din it was noted on page 43 that the law laid down in Mohammad Ashraf v. Mohammad Sharif and others PLD 1971 Lah.610 that all the terms of the agreement tenancy continue to apply even after the prescribed period of tenancy was approved. In respect of the case of Mohammad Yousuf it was noted that Yousuf's case has held that an agreement can only be made by the consent of the parties and if an agreement is for a fixed period it comes to an end on the expiry of the agreed period unless it is renewed by both the parties. The above observations make it clear that the later decisions of the Supreme Court are taking note of both the cases of Alaf Din and Mohammad Yousuf and are relying upon both the cases in respect of certain observations contained therein and hence both the cases have laid down law which is binding upon the High Court.
16. ' I have noted the above argument in view of the submissions made by the counsel and the labour put in by them. However, in view of clause I of the agreement dated 6th December,1969 Exh. A-9 which is in consonance with provisions of Sind Urban Rent Restriction Ordinance,1959, there is no occasion for relying in this case upon one or the other of those Supreme Court cases. I am afraid that clause I of the said agreement in respect of the period of tenancy and the mode of payment has not been really correctly appreciated or even seriously taken note of by any one. It is correct that the said agreement was for a period of 3 years from 1st December,1969 and during the subsistence of this period of 3 years the rent was liable to be paid in advance on every first day of the 3 months of that 3 years term. But what is important is that the next two sentences of the same lease agreement which were really applicable to the present case for the period of October to December,1976 have been lost sight of. I will reproduce those two sentences:- ........ The lease shall be terminated on the expiry of lease period of 3 years. The lessee desires to continue his occupation of the said Bungalow after 3 years the tenancy period shall be month to month and shall be terminated whenever desired with one month (probably the word 'notice' is missing here) in writing by the lessor or the lessee."
17. ' If one compares these two provisions of the lease agreement, one in respect of 3 years lease where the rent is payable in advance of every 3 months period, and the other where after expiry of the agreement the tenancy becomes a month to month tenancy terminable by one month's notice in writing without any provisions being made here about the time when the rent is to be paid, then difference becomes quite obvious. The consequence of this last clause of para. 1 of the agreement is that there was no time fixed for the payment of monthly rent after the agreed period of 3 years. Therefore, after 1972 the rent was payable in accordance with clause I of subsection (2) of section 13 of Sind Urban Rent Restriction Ordinance, 1959 within 60 days from the period for which the rent is payable because there was no time fixed for payment of month to month rent in the agreement of tenancy dated 6th December,1969, for the payment of rent after the expiry of the said agreement.
18. It is therefore obvious that whether the dictum laid down in PLD 1980 SC 298 is followed or whether the dictum laid down in 1980 SCMR 767 is followed in this case the result is the same because the stipulation of advance payment of rent of 3 months in the agreement of e lease expired on 6th December,1972, and thereafter rent was payable from month to month without any provision of advance payment.
19. The finding of the two courts below that the rent was payable in advance in lump sum for 3 months is therefore, not in accordance with the terms of the agreement, but is really based on the practice that had continued between the parties after the expiry of the first agreement of lease in December,1972. However, the practice in payment of lump sum rent in advance cannot displace the agreement in writing or the provisions of law as contained in section 13(2)(i) of Sind Urban Rent Restriction F Ordinance, 1959 which provides payment of rent after 60 days when it has become due. For this proposition reliance is placed upon P L 0 1984 SC 32 where the alleged practice of collection of accumulated rents in lump sum has been held to be of no avail and therefore by analogy the practice of payment of advance rent cannot be made the basis of ejectment in this case.
20. ' The result is that in the present case the rent for the month of October was to be paid by or before 30th December,1976 and the rent for November, was to be paid by 29th January, 1977 but the same has not been done. Of course the respondent had filed the application for ejectment on 3rd January,1977 when only the rent of October had become due to be paid on 30th December,1976 and therefore, on the date of the application for ejectment there was only one month's rent viz. Of October 1976 which was really due.
21. Mr.Nasrullah Awan had relied upon S B R 1971 Kar.344 where a learned Single Judge of this court had held that if it is proved that rents have not been paid or tendered in terms of clause I to subsection (2) of section 13 read with explanation (b) to the said subsection then the Rent Controller cannot excuse it merely because in terms of law the failure took place only once. He further observed that this would amount to introducing in the legislation some gratuitous failures in addition to the days of grace provided in it for paying or tendering rent. With great respect I do not agree with that view in fact this would mean that the discretion, which is given under section 13 by the legislature by using the words, "Controller may make order", would be made completely redundant, and the word 'may' shall have to be treated as the word 'shall'. In fact G this is not the correct view now, and in PLD 1980 SC 298 the Supreme Court had itself exercised a discretion of giving relief to the tenant in a case where no discretion had been shown to him by either the Rent Controller or the Appellate Court and nor even by the High Court. And in fact in that case the Supreme Court had remarked that there would be no better case of showing the discretion to the tenant. Interpretation of section 13(2) of Sind Urban Rent Restriction Ordinance, 1959 is that the discretion vests in the Controller as well as the Appellate Authorities not to order ejectment of the tenant in spite of the fact that there was a default in the payment of rent. Discretion has however to be exercised judiciously in the circumstances of each case.
22. Since in the case before me the Rent Controller as well as the A.D.J. Have refused to exercise a discretion in favour of the tenant on the basis that there was a liability upon the tenant to pay 3 months' rent in advance which I have found to be in consequence of incorrect reading of the lease agreement therefore, I am of the view that the failure to exercise a discretion in favour of the appellant by the two Courts below was based on irrelevant considerations.
23. On 3rd January,1977 when the ejectment application was filed there was merely a default of about 5 days in the payment of rents of October,1976 and therefore, I would follow my own view which I have taken in Second Appeal 76/1973 decided on 28th October,1978 where I had observed that merely on ground of non-payment of only one month's rent which was not paid due to some reason or even inadvertence it could not be said that the tenant was in the habit of making default and that one or two mistakes made after a long period of time should not be sufficient to inflict the severe penalty of ejectment upon a tenant particularly when law allows a discretion. Therefore, I would exercise the discretion of not directing the ejectment against the appellant because there was only one default of rent of October, 1976 on 3rd January,1977 and there had been some efforts, although not supported by a cheque, of drawing attention of the landlady to the fact that the rent has not been accepted by her although tried to be tendered by the appellant. If the appellant had not been inadvertent not to attach a cheque of Rs,2,000 with their letter of 30th December, 1976 then there would have been hardly a case of ejectment. But even in the present case the factum of advance payment of rent not being found to be stipulated in the agreement for this period and only one month rent being found due against the appellant on the date of the ejectment application, and there being previous litigation betwen the parties and the case of unauthorised constructions having not been proved against appellants, therefore, discretion should be exercised in their favour. In any case the question of exercise of discretion is not a question of fact and hence in second appeal the High Court can interfere with the exercise!, of discretion. Consequently this appeal is allowed and the orders of two Courts below are set aside.