JUDGMENT KAMAL MANSUR ALAM, J.- This appeal is directed against the order dated 9-5-1991 passed by the IIIrd-Rent Controller, Karachi (West) in Rent Case No. 578/88 directing the appellant's eviction from the premises in question.
2. The above rent case was filed by the respondent landlord for the eviction of the appellant tenant from the rented premises measuring about 2464 sq. Feet situated on the first floor of the building known as Hakim sons, West Wharf Road, Karachi, on the ground of default in the payment of rent.
Earlier too the respondent had filed a rent case for the eviction of the appellant on the ground of default in payment of rent, being Rent Case No. 16/85, but, during the pendency of that case, the parties entered into new tenancy agreement dated 31.12.1986 whereby the rate of rent was revised, w.e.f. 1.1.1987, from Rs. 3,500/- per month to Rs. 4, 250/- per month (inclusive of service charges) payable in advance before 5th of each month. In view of the new agreement, the respondent withdrew the aforesaid rent case (No. 16/85). Prior to and during the pendency of that rent case the appellant had deposited rent in Rent Controller's Court at the rate of Rs. 3,500/- per month, which was withdrawn by the respondent and by letter dated 15.7.1987 the respondent called upon the appellant to pay the difference in rent from January, 1987 together with arrears of electricity charges. However, in its reply to the said letter, the appellant took the position that the said tenancy agreement was not binding on it and insisted on paying rent at the old rate of Rs. 3,500/-. The respondent then approached the Senior Civil Judge and Rent Controller (South) Karachi for the eviction of the appellant. In its written statement filed in the rent case the appellant admitted the execution of the new agreement, the increase in the monthly rent from Rs. 3,500/- to Rs. 4250/- thereunder and the fact that despite such increase it continued to pay rent at the old rate of Rs.
3,500/-, but disputed the validity of the new agreement on the ground that it was not in accordance with section 5 of the Sindh Rented Premises Ordinance, 1979 and therefore not binding on the parties. Later, it seems that the appellant and it counsel did not appear in Court with the result that neither respondent's witness was cross-examined nor any evidence produced on behalf of the appellant.
3. I will first take up the preliminary objection raised by the learned counsel for the respondent to the effect that the appeal was time-barred having been filed on 5-8-1991 when the impugned order was passed on 9.5.1991. Contention of the learned counsel for the appellant, however, is that the appeal having been filed on the opening day after the summer vacation was within time.
Enquiry from the concerned officer reveals that in the year 1991 the offices of this Court observed summer vacation from 2.6.1991 to 4.8.1991 and reopened on 5-8- 1991 the date on which the appeal was presented. As such, by reason of the intervening summer vacation the appeal is not barred by limitation.
4. On merits, the only point requiring consideration is as to whether the appellant was liable to pay monthly rent at the enhanced rate of Rs. 4,250/- under the new agreement as claimed by the respondent. Relying on the case of Mst. Najma v. Tariq Qadeer Khan (1988 CLC 1312) appellant's counsel submits that the new agreement having neither been registered nor signed and attested by any Rent Controller, Civil Judge or Magistrate as provided .Under section 5 of the Sindh Rented Premises Ordinance, 1979, had no evidentiary value and could not be relied upon for determining the rent and other terms of tenancy.
5. It is true that sub-section (1) of section 5 of the said Ordinance provides for written agreement of tenancy which if not compulsorily registerable under any law, should be get attested and signed by and sealed with the seal of the Rent Controller or Civil Judge or First Class Magistrate, however, the provision is merely directory. No penalty is provided under the Ordinance in case of noncompliance of the said sub-section. Had the intention been to make the execution of a tenancy agreement in the manner provided under that sub-section mandatory and consequently a condition precedent to the application of the said Ordinance or for the filing of eviction application, such intention would have undoubtedly been spelt out by specific provision. It would appear fr6m sub-section (2) of that section that the procedure provided under sub-section (1) for the execution of the tenancy agreement, is primarily with a view to avoid controversy on the question of relationship of landlord and tenant. Sub-section (2) reads as follows:- "(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant.''
In the said Ordinance there is no provision similar to that of section 35 of the Stamp Act which places restriction on the admission in evidence of such documents as are not duly stamped, but, there too exception is provided under section 36 whereby an instrument even though not duly stamped, if admitted in evidence such admission cannot be called into question.
6. It is significant that there is also nothing in section 15 of the said Ordinance to suggest that its provisions could be invoked only in the case of a tenancy based on an agreement complying with provisions of the aforesaid section 5(1). On the contrary clause (ii) of sub-section (2) thereof clearly contemplates instance of tenancy and application of the said Ordinance even in cases where no agreement in the manner provided under section 5(1) has been executed. The clause reads as follows:- "(ii) 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."
7. In the instant case copy of the new tenancy agreement was produced alongwith the affidavit- in-evidence of respondent's witness, In his affidavit-in- evidence the witness deposed about the terms of the tenancy as agreed under the new agreement as also about the appellant's default in the payment of rent. He inter alia stated that effective from 1.1.1987 the monthly rent had been increased by mutual agreement from Rs. 3500/- to Rs. 42500/- and that in accordance with the terms of the new agreement respondent withdrew its Rent Case No. I6 of 1985, then pending in the Court of Rent Controller, for the eviction of the appellant. Thus here not only the new agreement was admitted in evidence without any objection from the appellant but the statement of respondent's witness also remained un-challenged. The appellant by its conduct having made the respondent act upon the new agreement not now be heard saying that the said agreement was not binding on it. It may be mentioned that under the agreement it was the obligation of the appellant to have the proper lease deed prepared, stamped and registered at its cost and for this reason too the appellant cannot be allowed to take advantage of its on. Non-compliance of the agreement.
8. As regards default in payment of rent, it is not denied that even after 1.1.1987 the appellant had paid rent at the old rate of Rs. 3,500/- per month instead of the enhanced monthly rent of Rs.
4250/-. As such the default in payment of rent is apparent.
9. Accordingly, I find no merit in this appeal which is dismissed. As the premises in question is being used for commercial purposes, I allow 90 days time to the appellant to vacate the same and handover vacant possession thereof to the respondent, subject to its continuing to deposit with the Nazir of this Court the monthly rent of Rs. 4250/- as is being done by it presently, and in case of any delay or default in depositing the rent or vacating the premises within the lime allowed above, writ of ejectment to issue without notice.