SYED ABDUR RAHMAN, J.- This First Rent Appeal is directed against the order of IV-Sr. Civil Judge/Rent Controller, Karachi,(East), dated 29-9-1981, whereby he dismissed the ejectment application filed by the appellant.
2. The appellant is the owner of the residential premises bearing No.l25-B/2, Khalid Bin Valid Road, P.E.C.H.S., Karachi. The respondent is the tenant of southern portion of the ground floor of the said premises which consists of three rooms, RS.l,000/-per month payable in advance. The rent was being paid through money-order. For the month of April, 1984, a sum of Rs.900/- was remitted by the respondent by money-order towards the rent after deducting Rs.l00/-as for charges repairs of water-pumping-machine. The appellant received the said money-order and wrote to him two letters, asking him to pay the balance amount of Rs.l00/-as he was not entitled to deduct the same without his consent or without permission of the Controller. The respondent did not pay the balance amount of Rs.100/- so deducted by him. Hence prayer for ejectment.
3. The respondent filed written-statement wherein he admitted all the facts pleaded by the appellant. He, however, contended that the appellant had orally consented to the deduction of repair charges. Hence respondent had done the same.
4. The learned Controller embarked upon the adjudication of issue as to whether the deduction of Rs.100/- from the rent of April, 1984, by the respondent on account of repairs of water-pumping- machine, was lawful or unlawful.
5. It appears that the learned Controller has not specifically given a finding on the point as to whether this amount could have been deducted or not perhaps for the obvious reason that the Settled law on the point is that the tenant cannot withhold the rent or any part thereof by adjusting the same towards the cost of repairs without the consent of the land-lord or with out the permission of the Controller or otherwise/than in the circumstances mentioned in subsections (2)and (3) of Section l2 of the Sind Rented Premises Ordinance, 1979.
6. The learned Controller, however, relying upon the decision reported in 1987 C.L.C.76, (Muhammad Yousuf V. Muhammad Saghiruddin Qureshi, wherein it is held that/where the contractual tenancy between the parties had expired the terms and conditions would be regulated by the relevant rent laws and not by the terms and conditions incorporated in expired tenancy agreement and, therefore, the tenant could pay rent within sixty days from the period for which the same was due!
In the present case as the rent of the month preceding filing of this ejectment application was paid by the tenant in advance though it could be paid within such period, therefore, it was lying to the credit of the respondent, hence it cannot be said that the respondent had defaulted in payment of rent.
The above ruling referred to by the learned Controller is based on the principle of law laid down by the Supreme Court in the case of Muhammad Yousuf V. Muhammad Abdullah reported in P.L.D.1980 S.C.291, which is to the effect that the words"agreement of tenancy" in the West Pakistan Urban Rent Restrictions Ordinance, 1959, would mean an agreement in force and not an agreement which has expired or was dead. In such a situation the terms and conditions would be regulated by law i.e. The tenant would be entitled to pay rent within sixty days from the period for which rent remained payable and not within fifteen days of the expiry of the time fixed in the agreement of tenancy.
8. The above principle of law was reviewed by the Supreme Court in the case of Zarina Khawaja v.
Mehboob Shah reported in P.L.D.1988 S.C.190, and the following principles were laid down in answer to a question formulated by it which, for the sake of convenience, I would like to reproduce as under: - "ONE: notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with-
(a) the general law; and
(b) the terms of tenancy between the parties- But, subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the later shall prevail; meaning thereby that the provisions of the general law and/or the covenants in the agreement to the contrary, shall have no effect: TWO: during the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant, the regulation of that relationship particularly vis-a-vis the determination and payment of rent; as' also the eviction, shall be governed by the covenants contained in the agreement; provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; THREE: after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Restriction Ordinance,1959 that a tenant would include a tenant continuing in possession after the termination of the tenancy in his favour. The definition of tenant in the present Sind Law also provides that a tenant would include"any person who continues to be in possession or occupation of the premises after the termination of his tenancy".
9. Therefore, the honourable Supreme Court further elucidated this point by observing and under:- "Not only this, the present Sindh Law made it more clear when the provisions contained in section 6 and 15(2)(i) of the Sindh Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre-existing law before the re-enactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of the tenant holding over. However notwithstanding the continued operation of the terms of the agreement after the termination of the agreement, by process of law as aforesaid its provisions whenever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed law. Similar would be the case relating to some other situations, for example, the determination of the fair rent. Similarly the vice versa position would also be correct. The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment of deposit, provision for agreed in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for ire-construction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and covenats. There is useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SGMR 1984. The terms of an expired agreement as such continue in operation to the extent they are not repugnant to the rent law. Indeed same would be the position with an unexpied agreement also."
10. Elaborating the Honourable Supreme Court referred to its earlier view and observed as follows:- "It needs to be clarified that the four judgments of the Supreme Court reported in 1980 Law Journals and one in 1985, though seemingly containing some elements requiring further explanation, are not mutually exclusive. They are in the cases of (i) Muhammad Yusuf P.L.D. 1980 S.C.298; (ii)
Muhammad Yunus Malik 1980 SCMR 184; (iii) Alif Din 1980 SGMR 767, (iv) Mina Abdul Aziz Beg 1980 SCMR 834; and (v) Sikh Abdus Sattar PLD 1985 SC 148. One case of 1981 viz. (vi) Muhammad Baqar Qureshi v. Mst. Razia Begum holding over in the general law of Transfer of Property Act (No.IV of 1882) was accepted, as lawful vehicle of keeping the terms of an expired agreement alive subject of course to repugnancy with any provision of the rent law to the contrary. In particular the covenants as to advance rent and date of payment in the expired agreement were enforced and thus, the agreement was continued. Same is the position in the third case. In both of them, Muhammad Ashraf v. Muhammad Sharif PLD 1971 Lah. 619, a case of Lahore high Court was approved. In the second case though the tenancy after expiry of the agreement was termed as'statutory' and holding over concept was kept excluded but the terms of tenancy as to rate of rent were nevertheless taken from the so-called expected agreement. Its naming as "statutory rent was not meant to obliterate its source being the same agreement. And, it is important to emphasise, that at page 306 having terms not inconsistent with the rent law, has been visualised, though stated to be exceptional. Thus, such terms would continue to operate. In the ultimate analysis such tenancies which are controlled by rent law are in any case composite; having both statutory and this composite natured does not change, though law of holding over is added to the rent law and the agreement. The fourth cases recognises advance rent and security deposit as possible subjects of an agreement enforced by the rent law. The fifth case goes in line with the third case and not beyond it but in a different context. The remaining cases also do not change the position."
11. Finally it was held by the Honourable Supreme Court as under:- "Thus it can safely be said that the rent laws permit all covenant in agreements, alive or expired; which, are permissible special law; and enforces the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law."
12. This view was re-iterated by the Supreme Court in the case of Asghar Ali Imam v. Muhammad Ali reported in P.L.D. 1988 SC 228. In this reported case one of :the covenants of the agreement was that the tenant would pay another Rs.600/- as rent in advance 15 days before commencing of another term of six months and in case of non-compliance the tenancy would be terminable. It was held that this term in the agreement would continue to operate notwithstanding the expiry of the period of the agreement.
13. Mr. Muhammad Yousuf Kharti, learned advocate for the respondent attempted to reply to the above contentions, by contending that the above two decisions of the Supreme Court were inconsistent with the decision in the case of Muhammad Yousuf given in 1980. Since decision in muhammad Yusufs' case was given by the Bench of four Judges, which was larger in number than the Bench which gave the two decisions of 1988, therefore, the former decision will have precedence over the latter decision. In this connection he has relied upon AIR 1974 SC 1596 (Maqtoo Lai v. Radhey Lai), wherein it was held, that a decision given by a larger Bench of Supreme Court which is contradictory to a decision given by a smaller Bench of it, though earlier in time, will have precedence over the latter. Without entering into controversy as to whether this view of the Indian Supreme Court would apply to the Supreme Court of Pakistan or hot it is sufficient to point out that the decision which was given in PLD 1980 SC 298 (Muhammad Yusuf v. Muhammad Abdullah) was so given by three Honourable Judges and the fourth Honourable judge Mr. Nasim Hassan Shah had taken a contrary view.
14. Hence the decision in the case of Muhammad Yusuf (Supra) cannot have precedence over the decision in the cases of Zarina Khawaja and Asghar Ali Imam where as the later decision will have precedence over the former. Finally it was contended by Mr. Muhammad Yusuf khatri, that default was trivial, technical and bonafide and, therefore, should be condoned. I am afraid that in view of mandatory provision of section 15(2) of the Sindh Rented Premises ordinance, 1979, ejectment in case of default being no more optional this contention cannot be accepted. Similar view was expressed in the case of Asghar Imam Ali that in case of a wilful default, the tenant will not be entitled to any discretionary benefit.
15. The appeal is, therefore, allowed and the impugned order is set aside. However, the respondent is allowed six months time to vacate the premises.