1. ' The appellant is a tenant in respect of shop bearing No, 600 C-2 Khushal Khan road. At the inception of tenancy he was paying rent @ Rs, 100 p.m. Plus Rs, 5 as other charges. Thereafter, it was increased to Rs, 200 p.m. Which was paid to the respondent upto March, 19/7. On 31st May, 1977 the respondent filed an application for ejectment on the ground that the appellant has defaulted in the payment of rent, he has unauthorisedly sublet the premises and that he has caused damage and impaired the value and utility of the premises. The appellant contested the matter and filed written statement stating that no default has been committed. The respondent had refused to accept the rent, he therefore, remitted the rent for the months of April to June, 1977 amounting to Rs, 600 on 26-5-1977 by money order which was refused. Thereafter from July, 1977 he has been depositing the rent in the Court. The allegations of subletting and damaging the property were also denied. The Controller, however, granted the application on the ground that default has been committed and further that the damage has been caused to the building impairing its value and utility.
2. ' Mr. Khalilur Rehman the learned counsel for the appellant has contended that it is an admitted position that there was no written tenancy agreement between the parties and there was no fixed time for payment of rent and, therefore, as the appellant had tendered rent before expiry of 60 days there was no default. On the other had Mr. Beg has contended that the appellant has admitted that there was an agreement between the parties to pay the rent in advance, and therefore, the rule of 60 days will not apply, and the appellant was bound to pay rent within 15 days from the date when the rent became due, and therefore, default has been committed. From the evidence it is clear that no written agreement existed between the parties. The respondent in his application for ejectment as well as in evidence has nowhere stated that any date or time for payment of rent was fixed under any agreement between the parties. He has merely stated that the rent was payable and default has been committed. However, in his cross-examination the appellant has stated that under agreement the rent was payable in advance. This is the only solitary evidence on the basis of which the learned counsel for the respondent is trying to establish the default of the appellant. The entire argument of the parties depends upon the interpretation of section 13(2)(i) which provides that if 'the tenant has not paid or tendered rent due to him within 15 days after the expiry of 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. This clause does not require agreement of tenancy to be in writing, therefore, if the terms of tenancy are ascertainable which were agreed orally between the parties, it will attract this provision. The agreement of tenancy oral or in writing, is not the only determining factor in deciding whether 15 days or 60 days time has to be taken into consideration for determining the default. If a party wants to limit the period for payment of rent upto 15 days from the date when the rent becomes due, it must specifically establish that there exists a tenancy agreement and under this agreement time for payment of rent has been fixed. The agreement should in clear terms specify a fixed time or date on which the tenant is required to pay the rent. In the absence of such a clause in the tenancy agreement time limit of 15 days will not be applicable. Mr. Beg has contended that according to the appellant the rent was payable in advance, therefore, time had been fixed. If the rent was payable in advance then it means that either it should be paid before the commencement of the month or before the expiry of the month i,e, upto the last day of the month.
3. When such wide gap has been given it cannot be said that any time has been fixed. As such clause will entail a penalty on the tenant and a shorter period will be allowed for payment of rent failing which he could be ejected, it is necessary that time fixed for payment of rent should be specifically mentioned and it should not be left to the guess work of either of the parties. The intention of the Legislature is that where the agreement fixes a specific time for payment of rent and the rent is not paid within 15 days from that date, the tenant will be a defaulter because the agreement has put him to notice fixing a specific time for payment of rent and in such case a grace period of 15 days is allowed. But where no time for payment of rent has been fixed a grace period of sixty days is allowed. If any party wants to fix a liability on the basis of a statute or agreement then such statute or agreement should be strictly construed Unless the provisions are clear and squarely cover a party, he cannot be subjected to any penalty. In the present case mere statement that the rent was payable in advance does not lead to the conclusion that a specific time was fixed for payment of rent. The agreement should have specified the date for payment of rent. Considering from this point of view, the appellant had remitted the money order! On 26-5-1977 being the rent for the months of April to June, 1977, therefore he was not a defaulter. The rent for the month of April was due before the end of the month. The appellant, therefore, tendered the rent well within' time as contemplated by section 13(2)(i).
4. It is established from the evidence that the appellant had been approaching the respondent for paying the rent which he refused and, therefore, money order was sent which was also refused.
5. Thereafter, the rent was deposited in' Court. These facts clearly show that the conduct of the appellant was bona fide and even if for argument sake it is accepted that the rent was not paid in time it was not due to any willful default on the part of the appellant.
6. ' The next question for consideration is whether the appellant has caused damage to the premises and thereby impaired the value and utility of the building. The respondent has merely stated that an ice-box has been constructed outside the shop in the verandah and further that the inner walls have become black as the appellant cooks food inside the shop. This later statement is contradicted by D. W. 2 who has stated that inside premises is properly painted. So far the construction of the ice-box is concerned, the appellant has stated that he has taken the premises for running a cold drink shop and it has been constructed outside the shop. Mere construction of an ice-box will not impair the utility of the shop. Furthermore, there is no allegation that any structural change has been made or any other damage has been caused which has impaired the utility of the shop. On this ground also the respondent has not been able to establish his case, and therefore D order passed by the learned Controller is set aside and the appeal is allowed.