ZAFFAR HUSSAIN MIRZA, J.--This appeal is directed against the judgment of a learned Single Judge of the Sindh High Court, dated 22nd November, 1983, whereby the Second Appeal filed by respondent No.1 arising out of an order of eviction passed against him was allowed dismissing the application for his ejectment.
2. The present appellants are the purchasers of the disputed premises from respondents Nos.2 to 6 who are the legal representatives of Sirajuddin the original owner and landlord. Respondent No.1 was inducted in the premises as a tenant by Sirajuddin, since deceased under the terms of a written agreement of tenancy, dated 9th May, 1975, which commenced from the date of execution for 11 months expiring on 8th April, 1976. As the decision of the main question arising for determination in this case turns on the interpretation of the relevant provisions of the aforesaid agreement of tenancy, it will be advantageous to reproduce clauses (1) and (2) of the agreement which read as under:- "(1) That the tenancy under this agreement shall commence from this 9th day of May, 1975, and shall last for eleven months i.e. Upto 8th April, 1976. For further extension in tenancy fresh rent agreement will be executed in favour of the landlord with the consent of the landlord. On termination of this tenancy the tenant shall deliver peaceful vacant possession of the entire demised premises together with all connections and fittings therein in quite good, sound and properly maintained condition as he received to said landlord.
(2) That the tenant has agreed to pay the rent at Rs.600 (Rupees six hundred only) p.m. For the demised premises, payable by the 5th of every calendar month, regularly to said landlord, against discharge of valid receipts. Non-payment of rent consecutively for three months shall render the tenancy liable to be terminated and the tenant ejected from the demised premises forthwith."
3. The legal representatives of deceased landlord Sirajuddin sought the eviction of respondent No.1, inter alia, on the ground of non-payment of rent since 8th February, 1976 until the date of ejectment application viz 15th April, 1976. The learned Rent Controller allowed the ejectment application and accepted the plea of the landlord that respondent No.1 had failed to pay rent for the alleged period.
In an appeal filed by respondent No.1, the learned Additional District Judge, Sukkur, maintained the order of eviction passed against respondent No.1 on the ground of non-payment of rent.
Consequently respondent No.1 filed the Second Appeal before the Sindh High Court against the judgment of the appellate authority.
4. Learned Single Judge held that as admittedly the tenancy under the terms of the agreement commenced from 8th February, 1976, and was to end after the lapse of 11 months on 8th April, 1976, clearly the tenancy month commenced from 9th of each calendar month. According to this reckoning the learned Singe Judge concluded that the period of default alleged was only for two months of tenancy. Therefore, the rent for the month starting from 9th February, 1976, was payable on 5th March, 1976, as according to the agreement the rent was payable on the 5th of each calendar month. On this basis the learned Judge found that as the rent for the next tenancy month commencing from 9th March, 1976, was payable on 5th April, 1976, after adding the grace period of 15 days, there was no default in respect of the aforesaid second month of tenancy. In this manner the learned Judge held that respondent No.1 was proved to have committed default only in respect of one month. The learned Judge then referred to the clause of the agreement of tenancy whereby the tenant could be evicted only upon default in the payment of rent continuously for three months, whereas in the present case default proved was only for one month. The learned Judge reached the conclusion that the terms of the agreement were binding upon the parties and therefore the 9jectment application was pre-mature. Additionally the learned Judge gave the benefit of discretion to respondent No.1 as the clades ,ttt the agreement created confusion with regard to the date on which the rent was payable, because the tenancy month did not coincide with the calendar month and the rent was required to be paid by the 5th of each calendar month.
The appeal of respondent No.1 was accordingly accepted by the impugned judgment.
5. Leave was granted to consider whether the learned Single Judge was right in holding that the stipulation in the tenancy agreement making the order of eviction conditional upon the committing of default for three continuous months was effective in law in the presence of the contrary provisions contained in section 13 of the Urban Rent Restriction Ordinance.
6. Learned counsel for the appellant argued that the relevant terms of the tenancy agreement relied upon by the learned Judge do not override the statutory provisions of section 13 as parties cannot contract out of the statutory obligation mandatorily prescribed. According to the learned counsel since the stipulation m the agreement required the tenant to pay rent by 5th of each calendar month, the intention was clearly that although the term of tenancy commenced with effect from 9th May, 1975, the tenancy month was the calendar month. He urged that by this reckoning the tenant had committed default for two months. We are unable to agree with the learned counsel as to his interpretation with regard to the tenancy month. Indeed his stand is contrary to the landlord's pleadings contained in the ejectment application. In paragraph 4 of the ejectment application it has been averred that the tenant has defaulted in the payment of rent since 8th February, 1976 for two months. Therefore, upon their own case pleaded the tenancy month did not coincide with the calendar month, for, in that case calendar months would have been mentioned while describing the period of default. We also do not agree with the view taken by the learned Single Judge that out of the two months in question the rent for the month from 9th February, 1976 to 8th March, 1976, was payable by 5th of March, 1976. The perusal of the agreement clearly shows that the rent was not payable in advance and in such a case, it is well-settled that the rent would be due and payable upon the expiry of the tenancy month. Therefore, the rent for the first tenancy month mentioned above would be payable, in terms of the agreement, by the 5th of the next following calendar month. The last date of the said month was 8th March, 1976, therefore, the rent for that month was payable on 5th April, 1976. The ejectment application having been filed on 15th April, 1976, it was clearly premature as the grace period of 15 days had not by then expired.
7. In the aforesaid manner we have also come to the conclusion that the ejectment application was premature as no default had been committed by the tenant before the institution of the ejectment proceeding so as to be liable to eviction. In this view of the matter we have reached the same conclusion but for different reasons and we feel that it is not necessary to decide the question of law that has been raised in this appeal.
This appeal, therefore, fails and accordingly dismissed with no order as to costs.