' NAIMUDDIN, J.---This is an appeal, by leave, from the judgment of the High Court of Sindh dated 3rd December, 1988 passed in F.RA. No,656 of 1984, whereby the High Court allowed the appeal and set aside the order of the Controller dated 30-5-1984 granting ejectment of the respondents.
2. Leave was granted to consider the question whether the terms and conditions printed on the back of the rent receipt constitute a mutual agreement between the tenant and the landlord within the meaning of clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. The cases of (i) Dr. Sakina Tapal v. Mst. Rashida Bano (1981 CLC Kar. 656); (ii) Abdul Qayyum v.
All Akbar (1982 CLC Kar. 1864) and (iii) Muhammad Usman v. Yousuf All Muhammad Bhai 1986 CLC Kar. 380 were referred to in which somewhat conflicting observations were made by the High Court.
It was deemed fit to give an authoritative decision of this Court on the point of law that has arisen in this case, which is likely to govern a large number of cases.
3. We may first briefly state relevant facts. The appellant let out two shops, bearing Nos.150-C and 150-D, situated on the ground floor of Textile Plaza, MA. Jinnah Road, Karachi to the respondents on a monthly rent of Rs, 100 for each shop on 3-6-1982 and received in advance a sum of Rs,1,400 as rent from June, 1982 to December, 1982 and issued a rent receipt No,3, dated 3rd June, 1982 acknowledging the said amount. It is the case of the appellant that the tenants did not pay any rent for the two shops for the months of January, 1983, February, 1983 and March, 1983 in spite of notice dated 5th March, 1983, though they were bound by the agreement to pay the monthly rent before the 5th day of every month. Photostat of the rent receipt was annexed to the application.
Therefore, the appellant on 12th April, 1983 filed an ejectment case against the respondents. The only averment made with regard to the terms and conditions of tenancy is contained in para. 2 of the application which may be reproduced in extenso. It reads: "That the opponents at the time of their induction as Tenants had paid in advance a sum of Rs,1,400 as Rent for the said two shops for seven months from June, 1982 to December, 1982 and the Applicant had issued a Rent Receipt No,3 dated 3-6-1982 acknowledging the said amount as rent in the name of the Firm M/s. Adnan and Wahid. Thereafter the Tenants are bound by Agreement to pay the monthly rent before the 5th day of every month."
4. The respondents, besides other pleas taken in the written statement, denied in para. 2 thereof that they entered into any agreement to pay the rent before the 5th day of every month. They pleaded that the appellant, with ulterior motives, refused to accept the rent for the month of January, 1983 in the first week of February, 1983 on the plea that the same be paid alongwith that for the month of February, 1983 in the first week of March, 1983. They, therefore, tendered the rent for the month of January and February, 1983 together in the first week of March, 1983 but the appellant demanded enhanced rent. It may be useful if the controversial term contained on the back of the printed rent receipt is reproduced here. It reads as follows: "The tenants shall pay rent to the landlord or his agent before 5th day of each month failing which he shall be liable to pay of same with an increase of 10% on the amount due in lieu of the cost of collection."
5. In support of their respective cases the parties filed their affidavits and were cross-examined. In the affidavit filed by the appellant in support of his case he said that the respondents paid Rs, 1,400 only and he issued rent receipt obtaining the signature of the tenants on the back of the counterfoil of the rent receipt. He further stated that the respondents were inducted as tenants in terms of the conditions printed on the back of the Rent Receipt", which he handed over in acknowledgement of the rent on 3-6-1983. He also stated that under condition No,1 the respondents had agreed to pay monthly rent on or before the 5th day of every calendar month and on failure to pay rent on due date they had agreed to pay a sum equal to 10% of the accumulated amount of rent as collection charges. He denied that any rent was tendered. In cross-examination he admitted that it is a fact that no agreement of tenancy was written but added that on the back of the printed receipt of rent the terms of tenancy are printed. In the affidavit of Muhammad Saleem, filed on behalf of the respondents, he denied that he had committed any default in payment of rent. He added that he had earlier deposited rent of the premises in question in Court in Misc. Rent Application No,1156 of 1983. In cross-examination he admitted that on the counterfoil of the receipt for Rs, 1,400 he and his brother had signed on behalf of their minor sons, in whose names the rent receipt was issued. He further stated in the cross-examination that the condition was printed on the back of the rent receipt which was issued by the appellant but he had not gone through such terms and conditions and that there was no other agreement of tenancy except the receipt. He denied that he had to pay rent by 5th day of every month.
6. Now, under section 15 of the Sindh Rented Premises Ordinance, 1979 a tenant is bound to tender rent within 60 days from the date it becomes due but if there is an agreement to pay rent on certain date then the tenant is required to tender rent within 15 days after the expiry of the period fixed by mutual agreement between the tenant and the landlord for payment of the rent. It is agreed on all hands that if terms printed on the back of the rent receipt did not constitute the terms of tenancy then the rent for the months of January and February, 1983 was tendered within time provided by law and there was no default. Therefore, the question is whether the terms printed on the back of rent receipt constituted the terms of the tenancy. In the rent application for ejectment the appellant did not state that these terms were agreed to by the respondents or the premises was let out to them on these terms but what he simply stated in para. 2 of the application was that the respondents at the time of their induction as tenants have paid in advance a sum of Rs, 1,400 as rent for these two shops for seven months from June, 1982 to December, 1982 and the appellant had issued a rent receipt acknowledging the said amount as rent. Indeed, the appellant became wiser when he filed affidavit in which he stated that the respondents were inducted as tenants in terms of the conditions printed on the back of the rent receipt but this evidence in the absence of pleadings to that effect cannot be looked into. Reliance is placed on Government of West Pakistan (now Punjab) v. Haji Muhammad (PLD 1976 SC 469), wherein it was held that "It is a well-established rule that if a plea of fact is not pleaded no case can be founded on it. In this case it was further held that "this being so, the plea that he was being paid from the contingency has to be ignored and all that is established on the record is that his tenure was temporary but as to what were the terms and conditions of service the appellant failed to establish." Further, it was denied in the affidavit filed on behalf of the respondents that they had agreed to the printed terms. Even if the above-stated rule of pleading is ignored a mere word of the appellant in this regard would not be safe to rely on, particularly in the absence of any independent evidence that the appellants were inducted in the premises as tenant on terms and conditions printed on the back of the receipt. Mere signing by the respondents on the back of the counterfoil of the rent receipt is not proof that the respondents agreed to the terms mentioned on the back of the rent receipt as no conclusive inference can be drawn by this fact alone. Indeed, the proper inference which can be drawn from this fact was that rent receipt was issued.
7. There is yet another difficulty in the way of the appellant. The tenancy was created in 1982, much after promulgation of Sindh Rented Premises Ordinance, 1979, section 5 whereof provides that the agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested, signing by and sealing with the seal of the Controller within whose jurisdiction the premises is situated or any Civil Judge or First Class Magistrate. According to the appellant he had let out the premises to the respondents on the terms mentioned on the back of the printed rent receipt. Therefore, he relied on this agreement but this agreement does not satisfy the requirements of section 5 inasmuch as it is not signed and attested, as provided in section 5 of the Ordinance, by the Controller or by any Civil Judge or a First Class Magistrate. However, question does arise that what is the effect of noncompliance of the provisions of section 5 of the Ordinance. In this regard Mr. Fakhruddin G. Ebrahim, learned counsel for the appellant, referred to the case of Mst. Fatima v. Mst. Hanifa 1986 CLC 1613, wherein our brother Salim Akhter, J, held that since no penalty was provided for non-compliance of the provisions of section 5 of the Ordinance, the provisions were directory and not mandatory. He further held that section 5 being in the nature of procedural provisions, agreement not made in the form described in the section not to be nullified or invalidated nor the parties to be debarred from proving the relationship of landlord and tenant by producing and proving such agreement or other admissible evidence as provided under law.
8. Our brother differed from the following view taken by another learned Judge of the Sindh High Court in the case of Habib Ahmed v. Liaquat Hussain PLD 1985 Kar.
741.
"It would be noted from the subsection (1) of above section that every agreement by which any premises is to be let out has got to be reduced to writing. The use of word "shall" in the said subsection denotes the intention which clearly is that it is mandatory for the parties to have such agreement in writing. In other words the oral agreement in respect of such transaction will have no legal force and hence will not be permitted to be used as the basis for any litigation in respect of any matter including ejectment of tenant under the Ordinance. This is clear from subsection (2) hereinabove which requires the written agreement to be produced and accepted as proof of the relationship of landlord and tenant between the parties.
' In view of the legal position stated hereinabove, the respondent, in the instant case, could not base his application of ejectment on the oral agreement and as such the application for eviction of the appellant based on such agreement was incompetent. The respondents, if so desired, could seek the ejectment of the appellant at legal forum other than the Court of Rent Controller, if so permitted by any law. Perhaps he could have recourse to Civil Court for this purpose. Thus the learned Rent Controller had no jurisdiction to entertain the ejectment application which could be dismissed for want of written agreement alone."
11. There is no doubt that section 5 of the Ordinance does not provide that if the tenancy agreement containing the terms and conditions on which the premises is let out, is not in writing and executed in the manner provided in section 5, then that would be the consequences. But, it is well settled that when the law gives direction to do a thing in a particular manner, it shall be done in that manner or not at all. In my opinion, in such a case one consequence would be that no relationship of landlord and tenant between the parties in respect of the premises will come into existence. If the existence of the relationship is otherwise admitted but the agreement is not in writing or executed in the manner provided in section 5 of the Ordinance, the terms and conditions which are contained in such an agreement, if they are inconsistent with any provision of the Ordinance, they would be invalid to the extent of inconsistency. In other words if the tenancy is admitted the parties shall be deemed to have held the tenancy in accordance with the provisions of the Ordinance. The object of section 5 seems to avoid any controversy as to the existence of relationship of landlord and tenant between the parties and to provide documentary proof thereof, and also to provide documentary proof of the terms and conditions on which the premises is let out to the tenant.
12. However, as regards the premises which have been let out prior to the coming into force of the Ordinance, section 5 of the Ordinance makes exception and provides as follows: "Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance."
Accordingly, if a premises is let out prior to the coming into force of the Ordinance on terms and conditions printed on the receipt or its back, they would be binding on the parties provided the tenant expressly acknowledges that he has agreed to such terms and conditions in some form or the other by signing counterfoil of the receipt below such words as "Agreed to the terms and conditions printed on the receipt or its back". Merely printing of the terms and conditions without evidence that the tenant agreed to the same would not, and could not, in my opinion, be effective for the reason of absence of mutuality and the parties being ad idem.
13. This brings me to the three cases noticed in the leave granting order. In the case of Dr. Sakina Tapal v. Mst. Rashida Bano (1981 CLC 656), one of us, namely, Sajjad All Shah, J, took the view that the terms and conditions of tenancy printed on the back of rent receipts were not binding on the tenant for the reasons that she did not sign such receipts and the landlady never insisted on observing such conditions. Further, no evidence was led in that case to show that the penal clause in the conditions was ever intended to be followed.
' Therefore, according to this case, if there is no evidence to prove that the parties intended to follow the terms and conditions printed on the back of the receipt, such terms and conditions will not constitute the terms and conditions of the tenancy. For example, if the receipt and the counterfoil of the receipt does not bear the words "let out on the terms and conditions" or is not signed by the tenant even once, he shall not be deemed to have accepted the same. In the case of Abdul Qayyum v. Ali Akbar (1982 CLC 1864) tenancy was 12 or 13 years old. Condition printed on the back of the receipt produced by the tenant was to the effect that the rent would be payable every month. On these facts it was observed that the condition was part of the agreement and binding on the tenant. But the real question in this case for consideration was whether acceptance by the landlord on 4 occasions in the past rent in lump sum, as evidenced by the receipts, would be enough to conclude that there was a practice of accepting rent by the landlord periodically. But his claim was rejected as the printed receipts produced by the tenant clearly showed that there were terms and conditions on the back of the receipt which included the condition that the rent was payable every month. The terms and conditions printed on the back of the receipt were, as such, not in dispute. Payment of rent every month was, therefore, held part of the agreement which was binding on the tenant. It was further held that "acceptance of rent for some months together as shown in the receipt executed by the landlord and produced by the tenant are acts of indulgence by the landlord to condone the occasional delay to share good faith spread over a period of tenancy of something like 12 years." In the case of Haji Muhammad Usman v. Yousaf Ali Muhammad Bhai (1986 CLC 380) it was held that the tenant was not bound by the terms and conditions printed on the back of receipt not signed by him. It is correct exposition of law. Unless it is pleaded that the terms and conditions printed on the back of the receipt are agreed to and if the allegation denied by the tenant, it is proved by the landlord that the tenant agreed to such terms and conditions, they could not be terms and conditions of the tenancy.
14. Mr. Fakhruddin G. Ebrahim, learned counsel for the appellants, referred to several treatises on the Law of Contract, namely, (1) Sutton & Shannon on Contracts, Seventh Edition, (ii) Law of Contract by Cheshire & Fifoot, 7th Ed., (iii) Chitty on Contracts--General Principles, 24th Ed., (iv)
Anson's Law of Contracts, 21st Ed., 1959, (v) The Law of Contracts by G.H. Treitel, VI Ed. And (vi) Indian Contract Act by Singhal & Subramanyam. He particularly relied on the following passages from Sutton & Shannon on Contracts at pages 106 and 107, 7th Ed.: "When the contractual document is unsigned, and takes the form of a written offer delivered to the offeree or a notice displayed, e.g. On a wall, the question arises whether the offeree has notice of the terms it contains. We have seen that, as a general rule, a man cannot accept an offer of which he does not know. But in the case of written offers, the ' offered must take care not to conduct himself in such a way that he is taken to know of the terms in the document.
' Many contracts at the present day are formulated in standard printed documents such as tickets, cloakroom receipts, and consignment notes issued by corporations (e.g., shipping companies or public transport corporations) (1), which documents contain printed conditions limiting or excluding the liabilities imposed on them by the general law. Whether these conditions are binding on the person taking the ticket depends on the particular circumstances. If a person asks for a railway ticket he will be bound by what appears on the face of the ticket (g), for a reasonable man would assume that the ticket was contractual document containing conditions and he cannot be heard to say that he did not look at it (h). Even here a person will not be bound in the case of fraud, as where conditions are printed in such a way as to mislead and the person taking the document is misled. In cases of this sort two questions of fact arises. (1) Did the plaintiff know that the writing or printing on the document contained conditions? If so he is bound by the conditions. (2) If the plaintiff did not know that the writing contained conditions, did the defendant do what was reasonably sufficient to give the plaintiff notice that the document contained conditions. If so, then the plaintiff is bound (i).
Whether all that is necessary to give such notice has been done is a question of fact. In answering which the tribunal must look at all the circumstances and the situation of the parties." (Emphasis supplied). ' and another passage at page 108 of the same book: "Where a ticket had the words "For conditions see back" printed on the face of the ticket, but these were obliterated by the date stamp, it was held that no steps reasonably sufficient to bring the conditions to the notice of the passenger had been taken (Sugar v. London Midland and Scottish Rly. Co. (1941) 1 All E.R. 172, Cf. Burke v. South Eastern Rail. Co., (1879), 5 C.P.D. 1 ante. It is no objection to the sufficiency of the notice that the document refers on the another document in which the conditions are set out (Thomps v. L.M.S. Rly. Co. (1930) 1 K.B. 41 (CA.), Goodyear Tyre Co. v. Lancashire Batteries Ltd. (1958) 3 All E.R. 7 (CA. (See Art. 143, pst).Following passage from Cheshire and Fifoot at page 113 (7th Ed.): "If it is unsigned, the question will be whether reasonable notice of the term has been given. That this was the crucial test was pronounced by Mellish, L.J., in 1877 in the case of Parker v. South Eastern Railway, where the defendants claimed that a passenger was bound by terms stated on a cloakroom ticket of which he was ignorant. Had the defendants done what was sufficient to give notice of the term to the person or class of persons to which the plaintiff belonged? The question is one of fact, and the Court must examine the circumstances of each case. A striking if unusual illustration is offered by Burnett v. Westminster Bank Ltd. (Emphasis supplied).
"The plaintiff had for some years accounts at two of the defendants' branches---Branch A and Branch B. A new cheque book was issued by Branch A, on the front cover of which was a notice that "the cheques in this book will be applied to the account for which they have been prepared". These cheques were in fact designed for use in a computer system, operated by Branch A, and "magnetized ink" was used which the computer would "read". The plaintiff knew that there were words on the cover of the cheque book, but had not read them. He drew a cheque for L 2,300, but crossed out Branch A and substituted Branch B. The computer could not "read" the plaintiffs ink. He later wished to stop the cheque and told Branch B. Meanwhile the computer had debited his account at Branch A. He sued the defendants for breach of contract, and they pleaded the limiting words on the cover of the cheque book."
' Mocatta, J, gave judgment for the plaintiff. The cheque book was not a document which could reasonably be assumed to contain terms of the contract; and the defendants had not in fact given adequate notice of the restriction to the plaintiff had the cheque book been issued to a new customer, the bank might have drawn his attention to the words on its cover and explained their purpose." ' and another passage from the same book appearing at page 115: "If the document is signed it will normally be impossible, or at least difficult, to deny its contractual character, and evidence of notice, actual or constructive, is irrelevant. In the absence of fraud or misrepesentation, a person is bound by a writing to which he has put his signatures, whether he has read its contents or has chosen to leave them unread". (emphasis supplied)
' Following passage from Chitty on Contracts at page 679, 24th Ed.: "Contractual documents. The document must be of a class which either the party receiving it knows, or which a reasonable man would expect, to contain contractual conditions. Thus a cheque book, a ticket for a deck chair, a ticket handed to a person at a public bath house and a parking ticket issued by an automatic machine have been held to be cases "where it would be quite reasonable that the party receiving it should assume that the writing contained no condition and should put it in his pocket unread". On the other hand, a railway or steamship ticket or a receipt for goods deposited has been held to be a contractual document."
' Following passage from Anson's Law on Contracts at page 153, 21st Ed.: "Assuming that reasonably sufficient notice of a standard form contract has been given to the person who receives the printed document...."
' Following passages from Law of Contract by G.H. Treitel at pages 167, 168 and 169, 7th Ed.: "A person who signs a contractual document is bound by its terms even though he has not read them,"
"On the other hand, a document is contractual if the party to whom it was handed knows it was intended to have this effect, or if it was delivered to him in such circumstances as to give him reasonable notice of the fact that it contained conditions. The mere fact that the document is called a "receipt" will not prevent it from having contractual effect".
' 'The correct approach was to look at the situation from the defendants' point of view and to ask whether they had done "what was reasonably sufficient to give the plaintiff notice of the conditions".
"On the other hand, the clause is unlikely to be incorporated if there are no words on the face of the document drawing attention to it. (Underlining is mine for emphasis)
' And following passages from Indian Contract Act by Singhal & Subramanyam's, at page 48, 2nd Ed.: "Specially written terms modify the printed ones. The purpose of printed terms is to save time and effort in the drafting of each contract, and also to ensure that important provisions are not overlooked and omitted in any transaction.
One who signs or accepts such a document can not be held to say that he did not read the document and did not know its terms. (Underlining is mine for emphasis). His testimony may be disregarded, if the other party believes in good faith that he was aware of the term, or that he meant to be bound by the terms without taking the trouble to read them.
' Printed statements are a part of the contract, unless they appear in a place where they may escape the attention of the other contracting party. In the latter case, they are part of the contract, if, and only if, they are called to the attention of the one who signs or receives the instrument, so that it can be said that he knew, or had sufficient reasons to know, their existence."
15. It will be seen from the above-quoted passages that they mostly relate to class of documents such as cheque book, tickets, cloakroom receipts and consignment notice issued by corporations which mostly represent single transactions and not to leases which are for certain durations.
16. It will further be seen from the above-quoted passages, particularly those portions thereof which have been underlined, that: "(1) the terms will not form part of the contract unless there are words on the face of the document drawing attention to it.
(2) If it is unsigned, whether reasonable notice of the terms has been given.
' Further, I need not discuss the above-quoted passages in detail for the simple reason that it has not been pleaded by the appellant in his rent application that the premises was let out on the terms and conditions printed on the back of the rent receipt. Therefore, reference to all these passages from well-known authorities on Law of Contracts was unnecessary or redundant when no foundation was laid by the Appellant by taking such a plea in the rent application.
17. On the other hand Mr. Khalid M. Ishaque, learned counsel for the respondents, referred to a number of works on the law of contracts, namely, Chitty on Contracts, Vol. I, 26th Ed., The Law of Contract by G.H. Treitel, 7th Ed., and Anson's Law of Contract by A.G. Guest, 26th Ed., in rebuttal of the contentions of Mr. Fakhruddin G. Ebrahim. I need not quote relevant passages except one from Chitty on Contracts, page 7/37, 26th Ed. In view of what I have said hereinbefore. It reads: "Printed notices. Where printed notices are exhibited, it may be sufficient if the party to be bound has, before or at the time of making the contract. Had his attention drawn to the notices (Watkins v.
Rymill (1883) 10 QBD 178), in circumstances which make it clear to him that the contract is subject to the conditions contained in the notice (Cf. Holling-worth v. Southern Ferries Ltd. (1977) 2 Lloyd's Rep. 70). The reference may be circuitous provided it is clear (Thompson v. L.M. & S. Ry. (1930) 1 KB 41). It has, however, been stated by Denning that: "The party who is liable at law cannot escape liability by simply putting up a printed notice, or is issuing a printed catalogue, containing exempting conditions. He must go further and show affirmatively that it is a contractual document and accepted as such by the party affected." (Emphasis supplied).
18. Mr. Khalid M. Ishaque submitted that one of the terms, namely, payment of 10 per cent collection charges was unusual and, therefore, special attention of the respondents should have been drawn by the appellants to this term and in support he relied on a passage from Chitty on Contracts, at page 782, 26th Ed., which reads as under: "Unusual terms. Although the party receiving the document knows it contains conditions, if the particular condition relied on is one which is unusually wide or unusually onerous, or is one which involve the abrogation of a right given by statute, attention may have to be drawn to it in the most explicit way (Parker v. South Eastern Ry. (1877) 2 C.P.D. 416, 428, Thornton v. Shoe Lane Parking Ltd.
(1971) 2 Q.B. 163, Hollingwirth v. Southern Ferries Ltd. (1977) 2 Lloyd's Rep. 70, Interfoto Picture Library Ltd. v. Stilleto Visual Programmes Ltd. (1988) 2 W.L.R. 6150).
It is correct that if terms and conditions are printed on any unsigned document and one of them is unusual or unusually onerous, attention must be drawn to it in the most explicit way. This in my opinion, will further be subjected to the condition, as laid down by Lord Denning, that it must further be shown affirmatively that is a contractual document and accepted by the party affected.
19. I, for the reasons stated above, dismiss this appeal with costs.