1. ' This Appeal under section 24 of the Cantonments Rent Restriction Act, 1963, hereinafter called the Act, is directed against the order dated 16-6-1992, passed by learned Additional Controller Rent, Clifton Cantonment Karachi whereby he directed the appellant to hand over the vacant possession of the premises in question to the respondent within 60 days from the date of said order. The facts relevant for decision of this appeal are as follows:-- ' Respondent Shirin Arif on 28-6-1989 filed this case against the appellant-Company for its eviction from the premises bearing Sub-Plot No,11, Plot No,28-G-29-G, Kehkashan Scheme No,5, Khaliq- Uzaman Clifton Road, Karachi on the grounds of default in payment of rent, materially impairing the value and utility of the premises by making addition and alteration in it and its conversion from residential to commercial one. It is her case that the premises in question is in possession of the appellant since 3-6-1984 and since then till First May, 1989 several tenancy agreements, each being of 11 months were executed between the parties and last one was executed on 1st May, 1989 by virtue of which the appellant was to pay Rs,7,000 per month as rent and the rent for the entire period viz. From 1st May, 1989 to 31st March, 1990 was to be paid in advance. It is alleged that pursuance to above agreement, the appellant issued the cheque bearing No,3281127 dated 7-6- 1989 for Rs,77,000 of BCCI Karachi to the respondent, which on presentation, was dishonoured. The case of the appellant is that the respondent in fact, wants increase in rent and for this purpose she had filed R.C. No,29/85 and fraudulently obtained an order in her favour from the Court and also started execution proceedings No,3/86, but subsequently when the rent was enhanced she executed a fresh agreement. The appellant has claimed that when the aforesaid cheque was issued it was with an understanding between the parties that it would be presented in the last week of June, 1989 but the respondent presented it earlier. It is alleged that when the Managing Director of the appellant came to know about the dishonouring of said cheque, he immediately issued the pay order dated 26-6-1989, drawn on Habib Bank Limited, for the said amount and handed it over to Mr. I.H. Hamidi, the attorney of the respondent, on the same date, and that only on filing of this application it came to the knowledge of the appellant that said pay order was not en cashed. The appellant has denied all the allegations of the respondent.
2. ' From the pleadings of the parties, learned Rent Controller settled the following issues:--
(1) Whether in terms of lease agreement dated 2-5-1989 the Opponent is liable to pay rent in advance to the applicant for the period from 1-5-1989 to 31-3-1990?
(2) Whether the Opponent committed wilful default in payment of rent for the period from 1-5-1989 to 30-3-1990?
3. (3)Whether the Opponent has carried out any unauthorised alteration and addition in the demised premises?
(4) Whether the residerial premises has been converted into commercial premises without permission of the applicant?
(5) What should the order be?
4. ' At trial, the respondent filed the affidavit in evidence of her attorney I.H. Hamidi and the appellant filed the affidavit in evidence of Nafees Ahmed Siddiqui. Both were cross-examined. On assessm ent of evidence brought on record, learned Rent Controller decided issues Nos.1 and 2 in affirmative and issues Nos. 3 and 4 in negative. Consequently, the eviction of the appellant was ordered from the premises in question, which order has been impugned in this appeal.
5. ' It is contended on behalf of the appellant that learned Rent Controller failed to appreciate the evidence and reached wrong conclusion. Learned counsel argued that in the tenancy agreement no date was fixed for payment of monthly rent, as such, the rent was not at all payable from month to month and in absence of such date it could not be said that the appellant had committed any default in payment of rent. He also argued that provisions of section 9 of the Act were not taken into consideration in its true perspective and the agreement in question was against the public policy. He submitted that default, if any, was only technical and the Controller should have exercised discretion in favour of the Appellant. In support of these contentions he cited (1) E.A.
6. Evans v. Muhammad Ashraf PLD 1964 SC 536, (2) Muhammad Ashraf v. Muhammad Anwar PLD 1975 Peshawar 254, (3) Younus and 9 others v. Pakistan State Oil Co. Ltd. PLD 1988 Karachi 338, (4)
7. Muhammad Yamin v. Mashroofullah Khan 1980 CLC (Karachi) 848, (5) Abdul Rasheed v. Saleem Muhammad 1980 SCMR 506.
8. In E.A. Evans' case, the following was observed:-- "The position is well recognized that any right or benefit conferred on a party can be waived for a person is entitled to do anything with what is his, but if the provision be based on public policy it cannot be waived. The question, therefore, to be determined in each case would be whether the particular provision in dispute is based on public policy. When we say that a rule is based on public policy we mean it has been framed not for the benefit of the individual whom it actually benefits (or not for his benefit alone) but for the benefit of the public or the society. That the question as to whether a provision can be waived is to be determined on the basis of public good or public benefit or avoidance of injury to the public will be clear on a reference to commentaries and decided cases."
9. ' In Muhammad Ashra Ps case, PLD 1975 Peshawar 254, it was held that an application before Rent Controller would be competent only if the claim of landlord is for recovery of "due rent" and not rent in advance. In Younus's case, it was observed that the tenant made consist efforts to tender rent but it was not accepted by landlady, who on the other hand kept tenant in dark about filing of ejectment case. The tenant was not defaulter in such circumstances. In Muhammad Yamin's case, it was held that if a tenant is found to have technically committed default the Rent Controller has discretion to refuse ejectment if the default was not wilful. In Abdul Rashid's case, it was held that parties cannot contract themselves out of provisions of law and nor can any party plead a practice contrary to law.
10. ' As against this, learned counsel for the respondent cited (1) Dr. Ghulam Rasool v. Muhammad Idress Qureshi 1989 CLC (Karachi) 279, (2) Lal Muhammad v. Ghulam Muhammad Dosal 1989 CLC (Karachi) 673, (3) Tariq Niaz v. Masooda Begum 1991 CLC (Karachi) 1733 to contend that once it is established that wilful default was committed in payment of rent it cannot be wiped out or erased by subsequent payment.
11. ' Coming back to the facts of this case, it is noted that material facts of this case are not in dispute.
12. The real controversy is about pay order dated 26-6-1989. The appellant has claimed that on said date the pay order was handed over to Mr. I.H. Hamidi attorney of the respondent, while the latter categorically denied to have received it. On 13-1-1990, Rent Controller had directed to deposit the amount of said pay order in Court. On 25-1-1990, the appellant was granted time up to 15th February, 1990, for depositing the amount of Rs,77,000 after withdrawing it from bank. The case diary dated 17-2-1990 shows that the appellant had deposited said amount through pay order dated 15-2-1990. It is an admitted fact that the cheque, dated 7th June, 1989 was dishonoured.
13. There is nothing on record to substantiate the plea that pay order, dated 26th June, 1989 was ever handed over to the respondent's attorney. It being so, the factual position is that the rent first time was deposited by the appellant in Court by pay order dated 15-2-1990. Admittedly, as per terms of tenancy agreement, dated 2nd May, 1989 the entire rent for 11 months was to be paid in advance and the appellant, in fact, had issued a cheque for it, which was dishonoured. The contention of learned counsel for appellant that advance rent was contrary to the provisions of section 9 of the Act, and also against the public policy, is completely misconceived. It is true that under said section payment of advance rent exceeding 3 months is not permissible. It is, however, to be noted that advance rent for 3 months could be stipulated and it being so it is neither against the provisions of said section and nor against the public policy. On this point reference can be made to the case of Muhammad Younus Malik v. Mst. Zahida Irshad reported in 1980 SCMR 184, wherein the following was laid down by the Hon'ble Supreme Court:-- "A fortiori, in our opinion, the term 'rent due' in the context would mean rent due under the agreement of tenancy, if any, and this would also include rent due under any stipulation for the advance payment of the rent. In fact, thereby the rent thus paid in advance does not lose its character as rent and the fact that it was payable in advance in terms of the agreement does not mean that it was not due and had not accrued. In Rangayya Apper Raw v. Bobba Seriranulu and others (1904) 27 Mad. 143, their Lordships of the Privy Council had observed that in most cases no doubt, the point of time at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily always the case in India. Legislation, custom or express contract or special circumstances of any case may make rent become due at a point of time different from the close of the period in respect of which is to be paid."
14. Keeping in view the above observations of the Supreme Court and section 9 of the Act, there can be no doubt that advance rent for 3 months could be stipulated and this advance rent was to be paid by the appellant in view of clause (1) subsection (2) of section 17 of the Act, within 15 days of the signing of the said agreement. Admittedly, this was not done and on the contrary the rent was paid through pay order dated 15-2-1990. The default is there and it is evident that it was wilful. The finding of the Rent Controller is perfectly correct and no exception can be taken to it. The cases cited by the learned counsel for the appellant and the principles enunciated therein arc not attracted to this case.
15. ' Learned counsel for the respondents argued that appellant is also liable for eviction on the ground unauthorized addition and alteration and also for converting the premises from residential to commercial. The respondent's attorney, in his affidavit in evidence, laid stress on the point of default and in casual manner mentioned about above grounds. It is significant to note that appellant is in possession of the premises since 3-6-1984 and was using it as such. Since then several agreements were executed between the parties and in those agreements main conditions were the same, but rate of rent was gradually increased. Nothing material has been brought on record to substantiate these allegations. The finding of learned Rent Controller on this point is also correct and is in consonance with the evidence brought on record. Accordingly, I hold that the plea of unauthorized addition, alteration, and conversion is not proved.
16. ' In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs, the appellant is directed to hand over vacant possession of the premises to the respondent within 3 months from now.