' Aftab Ahmed son of Muhammad Sharif, the appellant has challenged the order of eviction passed against him by the Senior Civil Judge/Controller, Quetta on 29-12-1983 by which the appellant- tenant was directed to put the respondent/landlords in possession of the house No, 6-9/361 (8)-A situated on the Branch of Muhammad Azam Baluch Road, Mohalla Quaidabad, Quetta.
2. An eviction application (No, 158 of 1978) was filed on 16-5-1978 by S. Haziq Hussain, the predecessor-in-interest of the present respondents and it was alleged that the appellant (respondent in the eviction application) was occupying the house as tenant on the monthly rent of Rs, 165, was a bad paymaster and had not paid or tendered rent due by him in respect of the house for February, March and April, 1978 and it was claimed that the cause of action accrued to the applicant against the respondent initially on the 10th of March, 1978 when the rent for the month of February, 1978 fell due and thereafter on the 10th of every succeeding month and finally a week ago when the respondent failed to pay or tender the rent due by him "and for this reason the respondent is liable to eviction under the provisions contained in Ordinance VI of 1959 (Paras. 1 to 4 refer)." This application was ordered to be registered on 18-5-1978 and the appellant was summoned for 24-6-1978. On 24-6-1978 at the request of the appellant the case was adjourned to 15-7-1978 on which date the written statement was filed and it was asserted that the relationship of landlord and tenant relates back since the year 1971 when the rent was fixed at Rs, 65 per month which was the amount assessed by the Municipal Committee Quetta but the landlord had been progressively compelling his (tenant) to pay enhanced rent and at present the amount has soared to Rs, 165 p.m. Whereas the gross annual rent assessed by the Municipal Committee remains the same i,e, 780. In controverting the allegation of default of payment of rent it was alleged that the landlord has been a trouble-some person and used to pressurize him for the increase in rent. An instance was quoted that in 1975 the rent was raised from Rs, 100 to Rs, 140 p.m. In this way that the rent was not received for three months and allowed to be accumulated. Later it was made -a basis for further enhancement under the threat of eviction proceedings and the tenant had to yield. This very tact was repeated and the rent for February, March and April, 1978 when offered was not accepted therefore he remitted the amount of Rs, 495 through money order on 17-5-1978 but the same was refused, compelled in the circumstances he has started depositing rent in Court since 27-5-1978 with the approval of the Controller.
3. The learned Controller framed the following issues :- "(1) Whether the respondent has failed to pay or tender the rent to the applicant?
(2) Relief?"
4. The landlord appeared as his own solitary witness on 12-3-1979 and closed his case, thereafter the tenant produced his evidence and examined R. W.-I Muhammad Islam Khan P. W.-II Munir Barkat and appeared himself as witness. While the eviction application was pending Haziq Hussain died and the present respondents being his legal representatives were substituted as applicants/landlords but no further evidence was produced on behalf of the landlords. The learned Controller expressed his opinion and held that when the eviction application was filed on 16-5-1979 default for three months had already been committed. The remittance of rent by money order on 17-5-1978 was considered to be of no avail. Accordingly the appellant was ordered to be evicted.
This appeal is against this eviction order passed on 29-12-1983.
' I have heard the learned counsel for the parties and have perused the record very minutely. No agreement of tenancy has been produced though it was alleged by Haziq Hussain in his statement before the Controller that such an agreement was there and would be produced later. Even before me no such agreement could be produced. The ordinary implication , of tenancy therefore is that the rent is payable monthly and the rent was payable at the end of each English Calendar month.
5. The main question for determination in the instant case arises whether or not on the date the landlord approached the Rent Controller for the ejectment of the appellant he was in default within the meaning of section 13(2) (i) of the Ordinance. This provision reads :- "13(2). A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving tenant a reasonable opportunity of showing cause against the application, is satisfied that :-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time, fixed in the agreement of tenancy with his landlord, or in the absence of such agreement within sixty days from the period for which the rent is payable"
' Originally the words used in this subsection were "by the last day of the month next following that for which the rent is payable". These words were substituted by section 5(a) (i) of the West Pakistan Rent Restriction (Amendment) Ordinance XXX of 1960 by the words, "within sixty days from the period for which the rent is payable". By this amendment it is clear that the law-makers intended that sixty days were to bed counted from the period for which the rent is payable. The extra sixty days were allowed from the period the rent is payable. In the case on monthly tenancy the period for which the rent is payable is the whale) month, not each day of the month.
6. The case of the landlord in his application in para. 1 was that the tenant has cleared the rent at the rate of Rs, 165 upto January, 1978. The counter-foil of receipt shown by the learned counsel for the respondent/ landlord for the month of January, 1978 also shows that the rent payable was at the rate of Rs, 165 and nothing was in arrear/balance on any other count. The appellant/tenant has also established through the documents produced by him in the lower Court Exh. R./1 and 2 that on 7-5-1978 at the instance of the landlord he has paid a sum of Rs, 313/15 being the house tax for the premises from 1969 to May, 1978. These documents show that the tax was payable by S. Haziq Hussain but it has been paid by Aftab Ahmed (the appellant) and on the express orders in that behalf by S. Haziq Hussain (Exh. R/4 refers). Anything in excess of the rent can be claimed by the landlord only of the same is agreed by the tenant. In the instant case no such agreement has been brought on record rather the receipt shows that nothing was in arrears upto the month of January, 1978. The landlord is not permitted by law to recover from the tenant the amount of any tax or any portion thereof in respect of any building notwithstanding any agreement. This prohibition is contained in section 9(2) of the Rent Restriction Ordinance and reads :- "9(2) Notwithstanding anything contained in any other law for the time being in force or any agreement, no landlord shall recover from his tenant the amount of any tax or any portion thereof in respect of any building or rented land occupied by such tenant by any increase in the amount of the rent payable, or otherwise, save as provided in subsection (1).
The amount of Rs, 313.15 paid as house tax to the municipality relates to a period when the tenant/appellant was not even there in the premises and under no law he can be held liable for that payment. I am therefore of the considered view that the appellant is entitled to the reimbursement or adjustment of this amount towards rent to be paid to the landlord.
7. The position that emerges in the instance case is that the cause of action for the lapse of the appellant in making payment for the month of February, 1978 only could arise on or after 1st May, 1978 but since he had made payment of Rs, 313.15 to the Municipal Committee on behalf of the landlord this amount shall be deemed to have been paid to the landlord, the eviction application filed on 16-5-1978 was without any cause of action as the tenant was not in default. The eviction application was frivolous/ vexatious, and was liable to be dismissed. This aspect of the matter has escaped the notice of the learned Controller and the impugned order cannot be sustained.
' For the above reasons I accept the appeal, set aside the impugned order. The eviction application filed against the appellant stands dismissed. The parties are left to bear their own costs.