' AJMAL MIAN, J.---This is an appeal, with the leave of this Court, against the judgment dated 11-7- 1991 passed by a learned Single Judge of the High Court of Sindh in F.R.A. No,60 of 1984 filed by the appellant against the order of ejectment dated 6-12-1983 passed by the IInd Senior Civil Judge and Rent Controller at Karachi in Rent Case No,175 of 1982 filed by the respondents on the ground of default, dismissing the same and maintaining the above order of ejectment.
2. Leave was granted to consider the following questions:-- "(i) That since no date for the payment of the rent in advance was specified in the expired tenancy agreement, 60 days grace period was available. Reliance in support of the above contention has been placed on the judgment of one of us (Saleem Akhtar, J.) in the case of Syed Bahauddin v. Mst.
Afsar Saeed (1984 CLC 1998).
' Whereas Mr. Rehmani, learned Advocate Supreme Court, appearing for the Caveator, has invited our attention to a Lahore High Court judgment in the case of Khalifa Hussain Alimad v. Mst. Sat Bharai (1980 CLC 648), in which a contrary view was taken to the view taken in the above Karachi case.
(ii) That since the notice about the death of Mst. Jameela Khatoon and vesting of her one-third share in respondent No,3, under section 18 of the Ordinance was received by the petitioner on 5-9- 1981, the petitioner could tender rent within 30 days of the receipt of the above notice and factually he tendered rent on 28-9-1981 hence there was no default. Reliance has been placed br him on the judgment in the case of Sk. Abdul Majid v. Akhtar Muhammad and 2 others (PLD 1974 Quetta 13)."
3. The facts have been briefly stated in the leave granting order. Suffice to reproduce the same:- "The respondents filed the aforementioned rent 'case on the grounds of default for the above period and personal requirement of respondent No,1. The above application was resisted by the petitioner inasmuch as it was pleaded that there was no default as the rent was tendered within the statutory grace period allowed under the provisions of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance'). The personal requirement was also denied. The learned Rent Controller, after framing issues, recording evidence and hearing the parties, by the above order, rejected the ground of personal requirement but allowed the ejectment on the ground of default. Against the above order the petitioner filed the above FRA which has been dismissed by the learned Judge in Chamber in which it has been held that since the rent was payable in advance under the terms of the expired tenancy agreement, the grace period available was 15 days and not 60 days, under section 15 of the Ordinance."
' Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
4. We have heard Mr. Fakhruddin G. Ebrahim, learned counsel for the appellant, and Mr. H.A.
Rehmani, learned counsel for the respondents. We have also heard Mr. Zahoorul Haq, learned counsel who was appearing in Civil. Petition No,21-K of 1992 and in which one of the points involved in the present appeal was also in issue.
5. The first question which requires consideration is, as to whether the appellant is entitled to grace period of 15 days or 60 days under clause (ii) of subsection (2) of section 15 of the Ordinance.
Before proceeding with the above point, it may be pertinent to reproduce clauses 6 and 7 of the lease agreement dated 17-6-1971, hereinafter referred to as 'the agreement', which was initially for a period of 11 months, renewable for ten consecutive periods of 11 months, which read as follows:-- "6. That the rent of the leased premises has been agreed as Rs,1,300 (Rupees one thousand three hundred only) per month, payable by the lessees every month in advance.
7. That the rent for the month of July 1971 amounting to Rs,1,300 (Rupees one thousand three hundred only) is hereby paid by the lessees in advance and the receipt of which is acknowledged by the lessors. Rent for each month will be payable in advance monthly."
6. A perusal of the above-quoted clauses 6 and 7 indicates that clause 6 provides that rent is payable by the lessee every month in advance, whereas, clause 7 reiterates the above proviso by providing that "rent for each month will be payable in advance monthly".
7. The last renewal of the agreement, expired in or about September, 1981. The question, whether the terms of an expired tenancy agreement are binding or not on the parties, stands finally settled inter alia by the judgment of this Court in the case of Mrs. Zarina Khawaja v. Agha Mahbood Shah (PLD 1988 SC 190), wherein Muhammad Afzal Zullah, J. (as his Lordship then was), after referring to the case-law, observed as follows:-- "There is useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SCMR 184. We accordingly answer the 4th question in the negative and hold that 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 unexpired agreement also."
8. There seems to be conflict of view among the learned Judges of the Sindh High Court on the question, whether 15 days grace period, or 60 days grace period, will be available in a case in which relevant clause of the expired, or current, tenancy agreement provides payment of monthly rent in advance without specifying a date for payment inasmuch as 3 Judges in different cases, including in the present appeal, have taken the view that 15 days grace period will be available, and not 60 days. The other two judgments are rendered in the case of Mst. Rashida Begum v.
Muhammad Mubin (1983 CLC 1458) and in the case of Muhammad Arshad Butt v. Mrs. Abida Salahuddin alias Benish Hassan (1986 MLD 1750). The same view was earlier taken by Aftab Hussain, J., of the Lahore High Court in the case of Khalifa Hussain Ahmad (supra), in which it was held that when the rent was payable in advance every month, it became due on 1st day of the month and that the tenant had become defaulter in payment of rent after expiry of 15 days period.
The above view was reiterated in a subsequent judgment by the Lahore High Court in the case of Muhammad Ali through L. Rs, v. Additional District Judge, Faisalabad and others (1984 CLC 1619).
9. On the other hand, the contrary view was taken by a learned Single Judge of the High Court of Sindh in the case of Jamil Ahmed v. Abdul Karim (1984 CLC 1815) and the case of Syed Bahauddin v. Mst. Afsar Saeed (1984 CLC 1998). It may be advantageous to reproduce the relevant portion of the judgment in the latter case, which reads as follows:-- "If a party wants to limit the period for payment of rent up to 15 days from the date when the rent becomes due, it must specifically establish that there exists a tenancy agreement and under this agreement time for payment of rent has been fixed. The agreement should in clear terms specify a fixed time or date on which the tenant is required. To pay the rent. In the absence of such a clause in the tenancy agreement time limit of 15 days will not be applicable. Mr. Beg has contended that according to the applicant the rent was payable in advance, therefore, time had been fixed. If the rent was payable in advance then it means that either it should be paid before the commencement of the month or before the expiry of the month i.e, up to the last day of the month.
When such wide gap has been given it cannot be said that any time has been fixed. As such clause will entail a penalty on the tenant and a shorter period will be allowed for payment of rent failing which he could be ejected, it is necessary that time fixed for payment of rent should be specifically mentioned and it should not be left to the guesswork of either of the parties. The intention of the Legislature is that where the agreement fixes a 'specific time for payment of rent and the rent is not paid within 15 days from that date, the tenant will be a defaulter because the agreement has put him to notice fixing a specific time for payment of rent and in such case a grace period of 15 days is allowed. But where no time for payment of rent has been fixed a grace period of sixty days is allowed. If any party wants to fix a liability on the basis of a statute or agreement then such statute or agreement should be strictly construed. Unless the provisions are clear and squarely cover a party, he cannot be subjected to any penalty. In the present case mere statement that the rent was payable in advance does not lead to the conclusion that a specific time was fixed for payment of rent. The agreement should have specified the date, for payment of rent."
10. It may be pertinent to point put that in the case of Syed Bahauddin (supra), of which judgment the above extract has been quoted, there was no written agreement between the parties containing any clause as to the payment of monthly rent. In that context it has been held that "if a party wants to limit the period for payment of rent up to 15 days from the date when the rent becomes due, it must specifically establish that there exists a tenancy agreement and under this agreement time for payment of rent has been fixed." It has been further held that in order to eliminate the confusion and to give certainty as to the due date for payment of rent, the clause should specify the date for payment. The above view has been followed by another learned Single Judge of the High Court of Sindh in the judgment, which is the subject-matter of C.P. 21-K/92.
11. The contrary view has been taken by the above five Judges on the basis of the meaning of the words "monthly rent payable in advance". M/s H.A. Rehmani and Zahoorul Haq have referred . The meaning of the words "monthly in advance", "advance" from the following Dictionaries:-- Stroud's Judicial Dictionary of Words and Phrases; 4th Edition, page 73: "(5) If freight is payable "monthly in advance" the charter is bound to pay the full monthly payment at the beginning of each month -- an obligation which applies even to a time when it is probable that the hire will not continue for a whole month."
(ii) Black's Law Dictionary, 5th Edn. "Advance", page 48: ' Advance. To move something forward in position, time or place. To pay money or render other value before it is due; to furnish something before an equivalent is received; to loan; to furnish capital in aid of a projected enterprise, in expectation of return from it. To supply before-hand; to furnish on credit or before goods are delivered or work done; to furnish as a part of a stock or fund; to pay money before it is due; to furnish money for a specific purpose understood between the parties, the money or sum equivalent to be returned; furnishing money or goods for others in expectation of reimbursement; money or commodities furnished on credit. A loan or gift or money advanced ,to be repaid conditionally; may be equivalent to "pay". See also "advances."
(iii) Ballentine's Law Dictionary, 3rd Edn. "Advance" page 39: "Advance. Noun: A payment made before it is due or by way of a loan. Something supplied as an aid in the performance of a contract or an undertaking such as the growing of a crop on leased premises. 32 Am J 1st L & T 578. To move ahead. To pay before the maturity of the obligation. To make a loan. To supply with goods."
' Webster's New World Dictionary of the American Language, College Edition: "Advance", page 21:-- "Advance.
1. To bring forward, move forward.
2. To suggest.
3. To further, help, promote.
4. To cause to happen earlier.
5. To raise the rate of.
6. To pay (money) before due.
7. To lend. v.i.
1. To go forward; move ahead.
2. To improve, make, progress, develope.
3. To rise in rank, quality, importance, etc. n.
1. a moving forward.
2. An improvement, progress.
3. a rise in value or cost.
4. Pl. Approaches to get favor, become acquainted, etc. Overtures (to someone).
5. a payment made before due, as of wages.
6. a loan. Adj.
1. In front; as, advance guard,
2. Beforehand; as, advance information."
' Mr. Zahoorul Haq has also referred to para. 262 from Halsbury's Laws of England', 4th Edition, Volume 13, which reads as follows:-- "262. Earliest time for distress. A landlord may not distrain until rent is in arrears, that is until it is ascertained, due and unpaid. Rent although previously demandable, is not actually due until the last instant of the due day, so that the earliest period at which a distress for rent may be made is on the day following that on which it falls due. Rent is prima facie not due till the end of each year of a term but in practice the due date is generally provided by agreement and by this means, or by custom rent may be payable in advance, so that in default of payment distress is legitimate at the beginning of each quarter or other period. If rent is only payable on a condition precedent it cannot be distrained for until the condition is fulfilled. Agreement may also postpone the right to distress; but to negative the common law right express words must be inserted; an affirmative special right of distress does not oust the common law right.
' In certain cases the leave of the Court must be obtained before the right of distress can be exercised: namely, in the case of a dwelling house let on a protected tenancy or subject to a statutory tenancy; or, where the landlord is not resident in the same building, a dwelling house let on a protected furnished tenancy or subject to a statutory furnished tenancy, and in certain cases where the tenant is a serviceman not serving under a regular engagement or the dependant of such a serviceman."
' He has also referred to the case of Tonnelier v. Smith and Weatherill & Company (1897) 13 TLR 560)) and the case of French Marine v. Compagnie Napolitaine D' Eclairage Et De Chauffage Park Gaz (1921 LTR Vol. 125 833). In the above cases, the Court of Appeal and the House of Lords, respectively, while construing relevant clauses of the Charter Parties, wherein freight was payable monthly in advance, held that the freight was payable on the first day of the commencement of the month as specified in the Charter party.
12. Reference has also been made to the case of George Dibble v. Thomas Bowater and Issac Morgan (1853) 2.E.B. 564 = 118 E.R. 879, the case of Lee and another, Assignees of J. Pollit, a Bankrupt v. Smith (1854) 9 Exchquer 662 (1854) 156 E.R.284 and the case of London and Westminster Loan and Discount Company v. London and North Western Railway Company (1893) LR 2 Q.B.49, in which the term "rent payable quarterly in advance" has been construed with reference to a landlord's right of distress and it has been held that it means "rent payable at the beginning of each quarter".
13. The expressions "in advance", "monthly rent payable in advance" and "rent payable every month in advance" have definite connotations. They do not suffer from any ambiguity as to cause any difficulty in their interpretation.
' From the above dictionaries meanings and the case-law, it is evident that the expression "in advance" has been judicially construed as means, "something which is to be done before it is due".
In other words, if monthly rent is payable in advance, it means that it is payable before it is due i.e, either on the last day of the preceding month or on the first day of the relevant month. The ratio of the judgments of the Court of Appeal and of the House of Lords in the case of Tenneelier v. Smith and Weatherill & Company and the case of French Marine v. Compagnie Napotitaine Eclairage Et De Chauffage Pule Gaz respectively (supra) wherein it has been held that the clause in the charter party providing that freight is payable monthly in advance means that the freight was payable on the first day of the commencement of the month specified in the charter party, is very much applicable to the present case.
It may be pointed out that the Rent Laws place clog on the rights of landlords inasmuch as they cannot cause ejectment of tenants on any other ground than the grounds specified in the Rent Restriction Ordinance, hereinafter referred to as 'the Ordinance', nor they can increase rent more than what has been provided for in the Ordinance. The above rights they had enjoyed under the Transfer of Property Act, 1882, before the enforcement of the Rent Laws. In consideration of the curtailment or the landlords' above 'rights, the Ordinance ensures payment of rent to them.
Keeping in view the above factum, this Court has consistently held that the provisions relating to payment of rent in the Ordinance should be strictly construed in favour of the landlord. In this regard reference may be made to the following observation from the judgment of this Court in the case of Mrs. Alima Ahmad v. Amir All PLD 1984 SC 32 (decided by a Bench of 5 H.J.J. Headed by the then Hon'ble C.J.) at page 37: "The alleged practice of the attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period from October to December, 1970, after receipt of the notice (Exh.P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the, ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of that discretion in second appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance protects the tenants against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protection it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice.
(The above underlining is mine).
' The above observations clearly support the view, which I am inclined to take. The clause relating to payment of rent in a lease deed or tenancy agreement is a very important clause for a landlord which can be equated with a clause in a charter party for payment of freight and the ratio of the above English cases will be very much applicable. Since the above expressions have received judicial interpretation, they are to be given same meaning as it is done, while construing provisions of a statute. In this regard reference may be made to the case of Shamroz Khan and another v.
Muhammad Amin and others PLD 1978 SC 89, wherein the following pertinent observations have been made: "While we agree with the view of the Full Bench we have referred to this judgment because it is not disputed that it has been consistently followed thereafter by the Courts. Now when a Legislature uses in a statute a legal term which has received a judicial interpretation, it is to be presumed that the term has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the statute. There is no intention to the contrary either in Order VII, Rule 19 or in Order XII, Rule 8 and further nothing turns on the fact that Karo's case related to the Penal Code whilst the said words are to be found in the Civil Procedure Code. Accordingly, on this ground also, we agree with the view taken by the High Court."
' The above judgment has been followed inter alia in the case of Syed Zeeshan Akhtar Zaidi v. The State (1988 PCr.LJ 843) and the case of Malik Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah.
49., ' In my view, there seems to be no reason to place a different construction on the expressions, "payable by lessees every month in advance" and "Rent for each month will be payable in advance monthly employed in above-quoted clauses 6 and 7 of the lease agreement in hand.
14. Reverting to the present case, it may be pertinent to refer to section 10 and above clause (ii) of subsection (2) of section 15 of the Ordinance, which read as follows:- "Section 10 of the Ordinance:
10. Payment of rent.--(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the cases pending before the Controller on the commencement of this Ordinance."
' Clause OD of subsection (2) of section 15 of the Ordinance.
"15. --(1)...............................................................
(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- ' 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...."
A perusal of the above-quoted subsection (1) of section 10 of the Ordinance indicates that it lays down that in the absence of any date fixed in this behalf by the mutual agreement between the landlord and the tenant, the rent shall be paid not later than the 10th of the next following the month for which it is due. Whereas, clause (ii) of subsection (2) of section 15 of the Ordinance, deals with the ground of default as a ground for ejectment by providing that the above ground would be available if the tenant has failed to pay rent in respect of the premises in his possession within 15 days after the expiry of the period fixed by mutual agreement between the landlord and the tenant for payment of rent, or, in the absence of such agreement, within 60 days after the rent has become due for payment.
' Both the above provisions of the Ordinance reserve the right of the parties to provide for a date or period for the payment of rent by mutual agreement. The above mutual agreement between the parties may be reflected in a lease deed or in a tenancy agreement or in a rent note.
15. In the present case, the above clauses 6 and 7 of the agreement provide for the payment of monthly rent in advance. The agreement had expired as far back as on 31-5-1972. It was executed on a non-judicial stamp paper of Rs,4. Since it contained a clause for renewal of 10 consecutive periods of 11 months, it needed proper stamping and registration.
' Even if I were to ignore the above technical aspect, it has come on record that the mutual agreed mode of payment of the rent acted upon between the parties was that the respondents used to send bill for the relevant month and in response thereof, the appellant tenant used to pay rent. In this regard, it may be pertinent to reproduce the following extract from respondent No,1's statement in the cross-examination from page 90 of the paper-book: "It is a fact that the opponent used to pay rent through cheques against our bills. Voluntarily says that bills were some times issued in advance and some times were issued at the time when the cheque of the rent was received by us. Some times we used to issue our bills after receipt of cheque of rent."
16. I am inclined to hold that though a clause as to the payment of rent contained in an expired tenancy agreement may remain binding on the parties but the Court may decline to enforce the same if it is ambiguous of from the facts of the case it appears that the parties have modified the same or have acted after the expiry of the tenancy agreement in a manner different than what was provided therein. In such an eventuality grace period of 60 days from the date when rent had become due, in terms of above clause (ii) of subsection (2) of section 15 of the Ordinance, shall be applicable. Since under subsection (1) of section 10 of the Ordinance, in the absence of mutual agreement between the parties, a tenant can pay rent for a month by 10th of the month following the month for which it is due, the tenant will commit no default if he pays rent for a month within 70 days from first day of the following month for which rent is due, i.e, 10 days under above section 10(1) and 60 days under above clause of subsection (2) of section 15 of the Ordinance.
17. In the present case, as pointed out hereinabove, the parties by mutual agreement, introduced the mode of payment of rent, namely, the appellant upon receipt of monthly rent bill from the respondents, used to pay rent. In this view of the matter, the above clauses of the agreement providing for payment of monthly rent in advance stand ceased to operate and the statutory period of 60 days became applicable. However, Mr. Rehmani has referred to the following cases in order to contend that the practice of sending rent bills or acceptance of accumulated rent by a landlord has no legal sanctity:
(i) M/s. Tar Muhammad Janoo & Co. v. Taherali and others (1981 SCMR 93),
(ii) Mrs. Alima Ahmad v. Amir Ali (PLD 1984 SC 32),
(iii) Ali Muhammad v. Mst. Bilques Begum (1982 CLC 261),
(iv) Waqf Muhammad Mehar Elahi v. Abdul Razzak Ltd. (1983 CLC 3285), and
(v) Film Exhibitors Ltd. v. Growel Marine Ltd. (1984 CLC 1837).
18. There is no doubt that in the above cases, it has been held that the practice of accepting accumulated rent or sending of monthly rent bills by a landlord in no way, absolves the tenant from discharging his statutory obligation under the relevant provisions of the rent laws i.e, to pay rent. There cannot be any cavil with the propositions propounded in the above cases. However, the point in controversy in the present case is as to whether the grace period of 15 days is to be allowed to the appellant for payment of monthly rent or 60 days. For the reasons already referred to hereinabove, I have held that the appellant is entitled to the grace period of 60 days. The above view, which I am inclined to take, in no way, is in conflict with the provision of clause (ii) of subsection (2) of section 15 of the Ordinance or with the above judgments relied upon by Mr. Rehmani.
' It was candidly conceded by Mr. Rehmani that if the appellants were to be allowed 60 days grace period there would be no default.
19. Adverting to the question of service of notice under section 18 of the Ordinance, it may be observed that in view of the above finding, it is not necessary to examine the above question.
However, it may be stated that the learned Judge in Chamber has dealt with the above question in para.15 of the impugned judgment as follows: "15. Learned counsel of the appellants also raised an objection that notice of attornment given to the appellants after the death of Mst. Jamila Khatoon, one of the two legal heirs of S.M. Saeed (co- lessor alongwith S.M. Ghaffar) was defective and therefore the appellants could not be held liable if no rent was paid. Copy of such notice dated 5-9-1981 ExhA/4 has been seen. However, I am of the view that there is no need to enter into this controversy as the default in question had occurred long ago and, moreover, rent could be validly tendered to any of the other two co-lessors and death of Jamila Khatoon and the subsequent notice of attornment are of no relevancy."
' The admitted position seems to be that the building in question belonged to three co-owners, one of them was Mrs. Jamila Khatoon, who had expired in March, 1978 as per statement of respondent No,1 in his cross-examination at page 90. The appellant was informed for the first time about the above death of Mrs. Jamila Khatoon and succession of her interest by Mst. Saeeda Begum by the respondents through their Advocate's letter dated 5th September, 1981. It has been admitted by respondent No,1 in his cross-examination that he continued to accept cheques for the rent in the joint names of the three co-owners including Mst. Jamila Khatoon and continued to operate the joint account in the bank, till the above notice was sent through their Advocate on 5th September, 1981, Since two-third of the share in the above building was owned by respondents Nos.1 and 2, the question arises whether there was any heed of serving of a notice under section 18 of the Ordinance. The above section 18 of the Ordinance reads as follows:-- "18. Change of ownership.--Where the ownership of a premises, in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirdy days from the date when the intimation should, in normal course, have reached the tenant.
A plain reading of the above section shows that it provides that where the ownership of a premises in possession of a tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner is obliged to send an intimation of such transfer in writing by registered post to the tenant. It also provides that the tenant shall not be deemed to have defaulted in payment for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance if the rent due is paid within 30 days from the date when the intimation should, in normal course, have reached the tenant. One view can be that a notice under section 18 of the Ordinance is contemplated if there is transfer of entire ownership of the premises through one of the modes mentioned in the above section as it envisages service of notice by the "new owner". The other view can be that even if there is a transfer of ownership in respect of a part of interest, in the premises, a notice under the above provision is mandatory."
' Mr. Fakhruddin G. Ebrahim has referred to the case of Sk. Abdul Majid v. Akhtar Muhammad and others PLD 1974 Quetta 13, in which Dorab Patel, J. (as his Lordship then was), while construing section 13-A of the late West Pakistan Rent Restriction Ordinance, 1959, which provision was couched more or less in the same language as section 18 of the Ordinance, has held, that "even in case of transfer_ of interest by a co-owner in favour of other co-owner notice is mandatory". The relevant portion of the judgment reads as follows : "6. Additionally ; the obligation of giving a notice has been imposed on change of ownership by transfer, therefore, the question also is of the meaning of the word "transfer", and as it has neither been defined in section 13-A nor in the said Ordinance, it follows that it should have the same meaning as in section 5 of the Transfer of Property Act, 1882. A transfer under section 5 of this Act includes a transfer of an interest in immovable property, so that it necessarily includes the transfer by a co-owner of his share in immovable property, whether the transfer be to a stranger or the co- owne:s. And as word "transfer" in section 13-A has the same meaning it follows that the words "where the ownership of a building ...Has been transferred..." are wide enough to include the transfer of any interest in that building and not merely as submitted by Mr.Azizullah Memon, the transfer of the building. This is also clear from the obligation of giving a notice of transfers by inheritance. This is because; for example a building owned by a person passes on his death to his heirs who acquire shares in it and in turn on death of any heir it would pass to the heirs of that deceased. The obligation of giving a notice in the event of transfers by inheritance, therefore necessarily implies that a notice is required when there is a change in'the ownership of an interest in a building. That is obvious, and it is also obvious that the property owned by a person passed on his legal heirs, therefore I cannot understand the reason given by the learned District Judge for his view that section 13-A was not attracted because "the applicants are the surviving heirs of deceased Muhammad Rafiq", who else could have inherited the share of Muhammad Rafiq except his legal heirs? And if the section was not attracted "on this score" as stated by the learned District Judge the section would not be applicable at all to transfers by inheritance, but that would be contrary to the express language of the section."
' The above view has been followed by one of us (Saleem Akhtar, J.) in the case of Sohail v. Shafiqur Rahman, F.R .A. No,88 of 1988, decided on 2-4-1989 (1989 ALD 229).
20. The object of above section 18 of the Ordinance seems to provide protection to a tenant against the ground of default if he is unable to pay rent because of any change in the ownership of the rented premises on account of sale, gift, inheritance or by any other recognized mode of transfer. It is not uncommon that formalities to complete transfer of ownership in respect of an immovable property takes quite long period and sometime nobody accepts rent from the tenant during the inter-regnum till the completion of formalities. So -above section makes it mandatory on the part of the new owner to serve a notice under registered post upon his tenant and if the latter, upon the receipt of such notice, pays rent due within thirty days from the date when the intimation should, in normal course, have reached the tenant he shall not be deemed to have defaulted. Since it is a beneficial provision, designed and intended for the benefit of tenants, it is to be construed liberally so that it may suppress the mischief aimed at, and may advance remedy. I am, therefore, of the view that a notice in terms of above section is mandatory even When a transfer of ownership pertains to a partial interest. I may also observe that if a new owner of a premises fails to serve above notice on his tenant and if the latter, without having knowledge of the transfer of ownership continues to pay rent to his previous landlord, he shall not be liable to pay rent to the new owner for the period, for which the tenant might have paid rent to the previous owner.
' In the instant case, transfer of ownership of 1/3rd share of Mst. Jamila Khatoon was on account of her death, in other words, because of inheritance and, therefore, a notice under the aforesaid section was mandatory.
21. It may again-be observed that though Mst. Jamila Khatoon expired in March, 1978. The respondents sent intimation about it first time through their Advocate's letter dated 5-9-1981 but they continued to accept cheques for the rent including in the name of the above deceased co- owner. The respondents have not brought any evidence, either oral or documentary, on record to indicate as to when this letter was posted in order to enable the Court to compute the period of 30 days in terms of above section 18 of the Ordinance. The burden to prove the date of posting was on the respondents, which they failed to discharge. The appellants, through their letter dated 28-4- 1981, pointed out to the respondents that they did not send monthly bills contrary to their usual practice. It was also stated that the appellants were enclosing cheque of Rs,5,248.50 in favour of M/s. S.A. Ghaffar, Jamila Khatoon and Shakila Khatoon for the period from July, 1981 to September, 1981. According to the appellant, by the above date, they had not received the respondents'
Advocate's above letter dated 5-9-1981. The appellants acknowledged the respondents' Advocate's above letter dated 5-9-1981 through their Advocate's letter dated 29-9-1981. If we count 30 days period from 29-9-1981, or even from 10th September, 1981, on the assumption that the above letter dated 5-9-1981 might have been posted on 6-9-1981 or on 7-9-1981, the appellant had tendered rent within 30 days, and even the name of Mst. Jamila Khatoon in the cheque was substituted by the name of Mst. Saeeda Begum by 7-10-1981 as indicated in the appellants' Advocate's letter dated 7-10-1981. It is, therefore, evident that there was no default on that account as well.
18. The upshot of the above discussion is that the appeal is allowed and the two judgments of the Courts below are set aside. The respondent's application is dismissed. However, there will be no order as to costs.
' SALEEM AKHTAR, J.--- I had the advantage of reading the judgment proposed by my learned brother Ajmal Mian, J. While agreeing that the appeal should be allowed, with profound respect I have not been able to concur with the view that where the rent is to be paid in advance the time when it should be paid should be the first of the month for which rent is to be paid. In this regard I had expressed my view as a Judge of the High Court which has been reproduced by my learned brother in paragraph 9 of the proposed judgment.
2. It is not necessary to state the facts as the same have been dealt with by my learned brother.
The only fact which requires emphasis is that under the tenancy agreement duration of tenancy was 11 months which was extendable with mutual consent. The rent was agreed as Rs,1,300 per month payable by the tenant every month in advance. The tenancy was, thus, a monthly tenancy and rent was to be paid in advance. No date for payment of advance rent was fixed in the agreement. The question which requires consideration is whether the appellant was required to pay rent in advance on the first day of the month or on any date before the expiry of the month for which rent was to be paid. If the parties would have agreed to any particular fixed date for payment of rent in advance then there was no difficulty in solving the controversy. The date as fixed by the parties would have been taken for the purposes of determining whether default has been committed by the appellant. My learned brother seems to be of the view that the rent should have been paid on the first of each month in advance. Such conclusion has been drawn by referring to various judgments of English Courts, a passage from the Halsbury's Laws of England and the meaning of the word 'advance' as stated in the legal dictionaries. So far the legal dictionaries are concerned, they all seem to interpret the word `advance' as 'to pay money before it is due', `to pay before the maturity of the obligation', `to make payment before it is due'. In Stroud's Judicial Dictionary the words 'freight payable monthly in advance' contained in a charter party have been interpreted to mean to pay full monthly payment at the beginning of each month. In the passage quoted above from Halsbury's Laws of England it was stated.That 'rent is prima facie not due till the end of each year of a term but in practice the due date is generally provided by agreement and by this mean, or by the custom rent may be payable in advance, so that in default of payment distress is legitimate at the beginning of each quarter or other period'. This passage also emphasises the time which is fixed by agreement or practice, for payment of advance rent. It will be pertinent to point out that the dictionary and literal meaning of the term is to pay before it is due or before maturity. Reference has been made to several judgments in which term of charter party viz. 'hire payable in advance' quarterly has been interpreted as payable at the beginning of each quarter. In my view no reliance can be placed on the judgments relating to interpretation of charter parties as such terms in the charter party are interpreted keeping in view the shipping practice and also the specific terms and conditions of the charter party. In French Marine (1921) 125 LTR 833 quoted in the judgment of my learned brother the object of payment in advance in shipping business has been stated as follows:-- "Payment in advance is highly expedient, for in many cases if the money be not paid in advance it may be very difficult to enforce payment by the charterer, who may belong to a foreign country, and not be amenable to Eng,lish law. The payment in advance is really intended to secure the owner. "
Therefore, in my view the interpretation relating to hire reserved under charter parties cannot be a safe guide for interpreting the words 'rent in advance' in tenancy matters. In London and Westminster Loan & District Company (1893) LR ,2 QB 49, the term 'rent payable quarterly in advance' was considered as 'rent payable at the beginning of each quarter'. It is significant to note that it does not say that it shall be payable on the first of the first month of the quarter. The beginning of each quarter cannot specifically be interpreted to mean that it is the first date of the first month of the quarter. The word 'beginning' has its own significance and meaning and should be interpreted according to the facts and circumstances of each case.
3. Now coming to the controversy in the present case the term 'rent payable each month in advance' has to be interpreted with reference to the provisions of the Sindh Rented Premises Ordinance and also the terms and conditions of the tenancy agreement. In this regard it is the literal meaning of the word 'advance' which is to be taken into consideration. As observed the tenancy agreement does not fix a date for payment of rent in advance. It merely says that the appellant shall pay in advance. Section 10 of the Ordinance provides that in the absence of any date fixed by mutual agreement between the parties, the rent shall be payable not later than 10th of the month next following the month for which it is due. Therefore, here again the emphasis is on the fixation of a specific date for payment of rent. This seems to be reasonable as any breach in payment of rent as agreed is bound to entail ejectment as provided by section 15(2)(ii) of the Ordinance. It also provides that the rent can be paid within 15 days if the period is fixed by mutual agreement otherwise within 60 days after the rent has become due. While interpreting these provisions one has to keep in mind that they entail severe penalty of ejectment and, therefore, it is to be considered in a manner which reflects the intention of the parties as well as the intention of the legislature. If the parties do not fix any date for payment of advance rent and merely state that it is payable in advance then to restrict it to the first of the month will not be in accordance with the intention of the parties or the legislative intent. The advance rent can be paid before it is due. In the absence of any date having been fixed the tenant can pay this rent on any date before the expiry of the month. In this regard reference can be made to Muhammad Baqar Qureshi v. Razia Begum 1981 SCMR 18 where referring to section 13(2)(i) of West Pakistan Urban Rent Restriction Ordinance it was observed as follows:-- "In the first part it stipulates a situation where a time is fixed in the agreement of tenancy for the payment of rent, and in such case the phrase 'rent due by him' means the rent which has become due according to the terms of the tenancy; and if it is not paid within 15 days after the expiry of the time fixed in the agreement, then the tenant becomes liable to ejectment. In other words, the intention of the law clearly is to preserve the sanctity of the mutual contract as to the time agreed upon for the payment of rent, which becomes due on the date stipulated in the agreement. If the agreement stipulates the payment of advance rent by a certain date, then rent becomes due on that day, and the law allows a period of fifteen days for its payment after the expiry of the specified date, which is in the nature of a grace period for the benefit of tenants.
' The second part of the clause deals with a situation where there is no agreement between the parties as to the date or time by which the rent is to be paid; and in such a case the law allows the tenant a period of sixty days from the period for which the rent is payable. We are unable to accept the contention that the second part of the clause also governs the first part, as such a proposition would amount to negating the first part of the clause, which is expressed in clear and unambiguous language".
4. This judgment also emphasises on the fixation of date and time for payment of rent. Unless the date and time is fixed for payment of rent it will be difficult to determine the terminus a qua for calculating the grace period allowed under the Statute on expiry of which a tenant is treated as a defaulter. As the rent deed has not fixed any time and date for payment of advance rent and has left its determination completely open, the implied meaning cannot be given to this clause for the purposes of fixing the liability which is penal in nature. It would, therefore, be reasonable if the tenant pays the advance rent before the expiry of the month for which it is payable. The criterion should be that a date/time has been fixed specifically for payment of advance rent. Here I may refer to the following passage from Woodfall's Law of Landlord and Tenant, Volume 1, 27th Edition at page 301:-- "Rent payable in advance.---Sometimes rent is made payable from quarter to quarter or otherwise in advance. Such rent could not of course be recovered in advance in an action for use and occupation, but a distress may be made, or an action maintained for such rent, as soon as it becomes payable according to the terms of the demise. The reservation should be clearly expressed so as to make the rent payable from time to time in advance; otherwise it may perhaps be construed as applicable to the first quarter only. Where premises were let, 'the yearly rent to be L 110 and to be payable in advance if the landlord required the same', nothing being said as to the days of payment, and after a quarter had expired the landlord demanded a quarter's rent only; it was held that he was not entitled to distrain for the whole L 110. But where it was a condition .In a lease that the tenant should pay the last half year's rent in advance, 'which last half year's rent should be considered as reserved and due on September 29 preceding, if the landlord should see cause for such demand, it was held that the landlord was entitled to demand the last half year's rent and to distrain for it at any time between September, 29 and the expiration of the tenancy, without demand previous to September 29. Where the words were that 'the rent was to be paid quarterly on the usual quarter days and always if required a quarter in advance', it was held that a quarter rent was due on demand at any time during the currency of a quarter."
5. As no fixed date has been fixed by the agreement the appellant was entitled to sixty days from the last date of the month for which rent is payable. In cases where for breach of any term of agreement any penalty is imposed, it should be specific, certain and definite. In case of vagueness or uncertainty the benefit should go to the tenant. There is nothing in the evidence that the appellant had agreed to pay rent in advance on the first of the month for which rent was payable.
Such meaning is imposed by interpreting a term which is subject to agreement. This agreement not having been established by means of interpretation liability of ejectment cannot be fixed on a tenant. I affirm my view expressed in Syed Bahauddin v. Mst. Afsar Saeed 1984 CLC 1998.
' The appeal should be allowed.