1. ' This First Rent Appeal is directed against the order dated 29-3-1984 passed by the Senior Civil Judge and Rent Controller, Karachi whereby allowing the Ejectment Application No, 1738 of 1981 on the ground of default and directing the appellant to vacate the premises in dispute.
2. ' The facts which give rise to this appeal are that the respondent is owner and landlady of the premises bearing No, 109, Mirza Kaleech Baig Road, S. B. Quarters, Karachi and the father of the appellants 1, 2, 4, 5 and 6 and the husband of the appellant No, 3 namely Manzoor Ahmad in respect of first floor of the premises in dispute at a monthly rent of Rs, 400. The father/husband of the appellants died on 16-2-1981 and the appellants became statutory tenants of the respondent by operation of law since 17-2-1981. The respondent filed ejectment application (Rent Case No, 1738 of 1981) against the appellants on the ground of default for the period from 1-1-1981 to 3]-3-1981 amounting to Rs, 1,200 also and on the ground of personal requirement for the occupation of her daughter who is residing with her. The other two grounds namely, alteration and addition and committed such acts which are likely to impair the material value and utility of the premises. The appellants resisted the ejectment application.
3. ' The respondents filed affidavit-in-evidence of her husband and her daughter who were cross- examined by the counsel for the appellants. In rebuttal the appellants filed affidavit-in-evidence of Muhammad Safdar, Muhammad Rasheed and Rauf Ahmad and they were cross-examined by the counsel for the respondent.
4. ' The learned Rent Controller, on the basis of evidence produced by the parties and taking into consideration the arguments of the learned counsel for the parties, decided issue No, 1 in the affirmative, issues Nos. 2 and 3 in the negative and allowed the ejectment application on the ground of default only vide order dated 29-3-1984 and directed the appellants to hand over the vacant possession of the premises in dispute to the respondent within 30 days from passing of the order.
5. ' The appellants being aggrieved against the order dated 29-3-1984 have preferred this First Rent Appeal on the grounds disclosed in the memo. Of appeal.
6. ' Mr. Syed Ishtiaque Ali, the learned counsel for the appellants, has raised the following contentions :- (i)The appellants became statutory tenants by operation of law of the premises in dispute on 17-2- 1981 after the death of their father/ husband and as such the appellants are not liable to pay the rent from 1-1-1981 to 16-2-1981 under the Rent Restriction Ordinance.
(ii) There was no default in respect of the payment of rent of January, 1981 as there was no agreement of tenancy in writing and as such, the rent of January, 1981 was payable on or before 31- 3-1981.
7. ' On the other hand Mr. M. M. Baig, the learned counsel for the respondent, has submitted that the appellants committed default and the respondent has established the default.
8. ' Before considering the contentions of the learned counsel for the parties, it is appropriate to reproduce the definition of the word 'tenant' as given in section 2, clause ( j ) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance).
9. "( j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes- (i)any person who continues to be in possession or occupation of the premises after the termination of his tenancy ;
(ii) heirs of the tenant in possession or occupation of the premise after the death of the tenant;"
10. It is admitted position that Manzoor Ahmed father/husband of the appellants died on 16-2-1981 leaving behind the appellants as his legal heirs. A plain reading of the provision of clause ( j) of section 2 of the said Ordinance indicates that the words "heirs of the tenant in possession or occupation of the premises after the death of the tenant" are statutory tenants. The Legislature intended to give protection to the heirs of the tenant residing with him. The factum of residence has a nexus between the deceased and the heirs who are entitled to the benefit of the protection under the Ordinance. It is admitted position that when the tenant died, he left behind appellants as his legal heirs and out of them appellants Nos. 5 and 6 are minors who have filed memo. Of appeal through thei next friend/mother appellant No,
3. At the moment of tenant's death the estate of a deceased tenant devolved on his heirs and they take th estate as tenants-in-common in specific shares. The interest of each het is separate and distinct. In the instant case appellants 5 and 6 are under disability and are interested because each of the appellants is a tenant-in common with others in respect of a rent and he is entitled to give a discharge to the extent of his/her share in such a claim. The interest of the minors must be protected and they must be treated with special kindness because of their incapacity. I am fortified in my view with a judgment in the case of Muhammad Aqueel Khan v. Akhtar Hussain and others (1) wherein it was held as follows :- "In the instant case apart from the minor respondents there is also the widow of the deceased. The question, therefore, would be whether she could have given a discharge without the concurrence of the minor respondents? This point was also considered in the case of Iftikhar Hussain and it was held that 'a discharge without the concurrence of such person means a discharge of a claim in which the person under disability is also interested'. Such a discharge the mother could not give'.
11. This observation was based upon the reasoning that each of the dependents was a tenant in common with others in respect of a claim and he was entitled to give a discharge to the extent of his interest in such a claim. This appears to us to be the correct position as the interest of the beneficiaries under the provisions of the Fatal Accidents Act is also distinct and several. The learned Single Judge followed this observation of Qadeeruddin, J. And rightly repelled the plea of the appellant that the mother, who was a joint claimant, could give a discharge without the concurrence of the minors."
12. ' In the case of Ghulain Muhammad v. Khan Muhammad Sabir Lal (2) it was contended before the Hon'ble Supreme Court that since the purpose of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act is to give intimation to the person in possession of the evacuee premises of the transfer thereof and to call upon him to pay rent to the landlord it is clear that the notice creates a liability, for, the failure to comply with the notice will, under section 30 (3) of the Act, to be such a person out of the protection or proviso (b) to subsection (1) of the said section. Such a contractual relationship may cause for the benefit of a minor, but it cannot saddle him with the obligations arising out of such a contract, such as, payment of rent during his minority Supreme Court held as follows :- "It is well-settled that a minor cannot be sued for rent or even for compensation for use and occupation of a premises. Therefore, the service of a notice on a minor is futile if it cannot create any liability in the minor, for, unless such a liability is created a default cannot be established, and, therefore, the minor cannot be deprived of the protection given by proviso (b) to subsection (1) of section 30 of the Act, merely on the ground of non-payment of rent during his minority. 'These appear to me to be not
(1) PLD 1971 Kar. 864 (2) PLD 1969 SC 71 only sound but also just principles and I see no reason for departing from them unless the Legislature has itself manifested, a clear intention of doing so in the present case the Act has not done so. Applying these principles, therefore, I have no hesitation in coming to the conclusion that in the present case since the relationship was created not by any contract but by operation of a special law which applied, notwithstanding the provisions of the other laws, the protection given to a minor by section 11 of the Contract Act is not available to the appellant. In any event, since this is not a suit for the recovery of arrears of rent but merely a proceeding for eviction, I would be justified in applying the equitable principle that the minor should have repudiated the relationship on attaining majority or within a reasonable time thereafter. He could not continue to remain in possession even after attaining majority without discharging the obligations arising from such possession. If he wished to reap the benefits of the statutory tenancy after attaining majority it was incumbent upon him to also meet the obligations arising therefrom."
13. ' The principles enunciated by the Hon'ble Supreme Court are applicable to the facts of this case.
14. Perusal of the order would show that this aspect was not duly considered by him.
15. ' Syed Ishtiaque Ali has contended that ejectment proceedings are not proceedings for recovery of arrears of rent. It is also admitted that the rent from 1-11981 to 16-24981 was not paid to the landlord.
16. ' On the other hand Mr. Baig has contended that after death of the original tenant the appellants remained in occupation of the premises in dispute and they have succeeded to the tenancy, they have succeeded to all rights and liabilities. His contention is that the proceedings for eviction on the ground of non-payment of arrears of rent from 1-1-1981 to 16-2-1981 are competent.
17. In my opinion the position of the appellants in relation to the premises in dispute is that of statutory tenants which came into existence on 17-2-1981, that is, after the death of the original tenant. There is no provision in the enactment for recovery of debt (arrears of rent from 1-1-1981 to 16-2-1981). The liability of the appellants at the ordinary law is not altered by the Rent Ordinance. In my opinion the appellants are liable to be sued for their father/husband's debts. The legal representatives are tenants for all the purposes of the Ordinance. But the legal representatives will not be tenants in default prior to 17-2-1981.
18. ' It is necessary to refer the various decisions cited at the bar for deciding this controversy. Suffice it to make a' reference to the decision of the Supreme Court where the Supreme Court had an occasion to consider the true import of succeeding to the tenancy also succeed to the default. In PLD 1966 SC 182, the Hon'ble Supreme Court observed :- "These circumstances are sufficient to show that there was a defect in the right which he could claim as a tenant, which had been made the subject of proceedings for termination of the tenancy against him and from the time when the proceedings were commenced the retention of the tenancy was subject to the result of these proceedings. It was not a case of the defects being noticed and made a ground for eviction upon or after the death of the tenant. The tenure which Sayyed Fazal-i-Haq enjoyed from the time when the proceedings were started against him was subject to the result of those proceedings and his legal representatives, who, under the law, were entitled to continue in occupation, held that tenancy subject to this defect. I find myself in complete agreement with the view expressed by the Division Bench on this point. Although the legal representatives could claim to be statutory tenants upon the death of Sayyed Fazal-i-Haq, yet their tenancy was not free from embarrassment, for litigation had already been commenced on the basis of defaults, sufficient in themselves, if found, to extinguish that right. Therefore, in my view, the legal representatives, if they wished to continue as tenants, were bound to undertake to establish that there was no default either in payment of rent, or by sub-letting of the premises, by their deceased father Sayyed Fazal-i-. Aq. Their presence in the litigation was, therefore, necessary.
19. It was also necessary for the purpose of resisting the claim of the landlord that he required the premises for his own use, and that he (the landlord) was entitled to delivery of possession on that ground as well."
20. In the above case the tenant died during the pendency of the eviction application. While in the instant case tenant died earlier to the institution of eviction application. In my humble opinion the principles laid down are not applicable.
21. ' Mr. Syed lshtiaque Ali has contended that the word 'shall' in clause (ii) of subsection (2) of section 15 of the said Ordinance connotes a discretion to be exercised by the Rent Controller and whenever a discretion is conferred, reasons must be stated in exercising it one way or the other. Subsection
(2) and clause (ii) of subsection (2) of section 15 read as under :- "(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:-
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment;"
22. The language of the clause and subsection is very clear and certain. The tenant can be evicted only if he has failed to pay rent. Much argument was constructed on the words "shall" and "may" which have both been applied in the same sense. Subsection (2) of section 15 of the said Ordinance enjoins a duty upon the Controller to enquire into the default and if on enquiry the Controller is satisfied that the tenant has committed default, then he has to pass the order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Rent Controller. The Rent Controller can pass an order of eviction if he is satisfied that the tenant has failed to pay rent. The point that has to be decided is whether the tenant has failed to pay rent due. The words used are that "the tenant has failed to pay". The intention of the Legislature is very clear by the use of the word "fail". It shows that failure to pay the rent.
23. ' Reverting to the last contention of Mr. Syed Ishtiaque Ali that the finding of the learned Rent Controller that the rent for January, 1981 was payable till 1st March is erroneous and misconceived in law.
24. Admittedly there is no tenancy agreement in writing and as such the rent for January, 1981 was payable within 60 days when it became due. The rent for the month of January, 1981 became due on 31-1-1981 and as such it was payable by 31-3-1981. In the instant case the original tenant! Died on 16-2-1981 before the rent became due.
25. ' The case of the respondent is that the appellant committed default in payment of rent for the period 1-1-1981 to 31-3-1981. The case of the appellants is that their father died on 16-2-1981. In spite of his death the rent was duly tendered by appellants and two with their uncle for the months of January and February to Mr. Zakauliah Sheikh husband and rent collector of husband who promised to accept the same after consulting his lawyer about the status of the appellants and advised them to see him in a couple of days. Again they contacted in the 3rd week of March 1981 and offered him the rent but he again regretted his inability to accept the same as he could not contact his lawyer and asked them that they should not worry as he himself would come to their house to collect the rent.. He did not turn. Thereafter they started depositing rent in the civil Court after seeking necessary permission.
26. As I have already observed that arrears of rent from 1-1-1981 to 16-2-1981 cannot be recovered under these proceedings as the same are recoverable under the ordinary law. Even the eviction proceedings cannot be filed against the appellants in respect of that debt or arrears of rent amounting to Rs, 600. The appellants are only entitled to pay rent for the period commencing from 17-2-101. The rent from 17-2-1981 is payable by 30-4-1981. They started depositing rent after seeking permission from the Rent Controller. It is pertinent to note that Miscellaneous Application No, 1809 of 1981 was filed on 24-4-1981. The eviction application was presented on 15-4-1981.
27. ' For the above observation, it is not necessary to discuss the other contention raised by Mr. Baig.
28. ' The order of eviction passed by the learned Rent Controller is, therefore, liable to be set aside. In my opinion, the Rent Controller has committed an error in recording the finding that the appellants hay committed default in payment of rent.
29. ' The appeal is allowed and the findings recorded by the Rent Control-a that the appellants are defaulter in payment of rent are set aside and he respondent's ejectment application on this ground is dismissed. Under e circumstances of the case, there will be no order as to costs.