' SALEEM AKHTAR, J.---The appellant by leave of the Court has challenged the judgment dated 3-11- 1991 passed by a learned Single Judge of the High Court of Sindh, whereby order of ejectment granted by the Rent Controller was set aside.
' The appellant filed ejectment case against the respondents on the ground of default in payment of rent for the months of November and December, 1975 and January, 1976 and subletting. It was pleaded that the rent was payable in advance every month. The respondents denied the claim and disputed that the rent was payable in advance. It was also pleaded that there was practice between the parties that the appellant used to send a bill for payment of rent due and it was after receipt of such bill that the rent was payable by respondent No,1. It was pleaded that the respondents had paid a sum of Rs,1,000 being rent for the months of November and December, 1975 through a cheque dated 6-1-1976 which was duly received by the appellant. However, the same was returned to the respondents by letter dated 9-1-1976. Again rent was tendered through post under registered cover which was returned and therefore the respondent No,1 started depositing rent in Court. The allegation regarding subletting was also denied. The learned Rent Controller framed one issue namely whether the respondents have committed default in payment of rent but no issue was framed with regard to subletting. The finding of the Rent Controller was that in view of the agreement between the parties to pay rent in advance every month the respondents having paid rent in January, 1976 for the months of November and December, 1975 were in default; the vacation order was passed.
' In the First Rent Appeal by the impugned judgment the ejectment order was set aside holding that as no date for payment of rent was fixed by the agreement, the period of 60 days being the grace time should be allowed and therefore no default in payment of rent was committed. On question of subletting the finding was against the appellants.
' Mr. Zahoorul Haq, learned A.S.C. For the appellants has contended that in view of the agreement between the parties the rent was payable in advance commencing from first of January 1%7 and therefore time and date having been fixed the respondents were not entitled to the grace period of 60 days. Reliance has been placed on the observation made in paragraphs 8 and 13 of Shezan's case reported in 1992 SCM R 2400. Mr. Iqbal Kazi the learned A.S.C. For the respondent relying on para. 16 the same judgment pointed out that Musharaf Hussain Zubaidi, the Chief Accountant of the appellants admitted in his cross-examination that according to the arrangement between the parties the appellants used to issue bill upon which tenants used to make payment and thereafter receipts were issued to the tenants. In view of this admission it was contended that the time allegedly fixed by agreement of tenancy was modified and could not be made basis for computing the grace period. The learned A.S.C. Has relied on the following observation made in Shezan's case (supra):-- "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 or 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.
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 grade period there would be no default."
The above observations fully apply to the facts of this case. The respondent No,1 cannot be held to be a defaulter.
' On the question of subletting the learned A.S.C. For the appellant has contended that the agreement of tenancy was between the appellants and Sultan Karam Ali, the respondent No,1 and having sold his share in Skyline Travels Ltd. To Sadarudding Ganji has inducted him in possession of the premises without the knowledge and consent of the appellants therefore, subletting has been proved. Respondent No,1 had entered in the agreement of tenancy describing himself as Director, Skyline Travels Ltd. The respondents have referred to various bills filed additionally in this appeal issued by the appellants in the name of respondent No,2 and contended that the appellants had accepted it (respondent No,2) as tenant. The rent receipt filed before the Controller dated 23-10- 1975 recites as follows:-- "Received with thanks from Sky Travels Ltd. A/C Sultan Karam All the sum of This shows that Sultan Karam All respondent No,1 was treated as tenant. It seems that previously as Sultan Karam Ali was director and holding the share of the Company, the bills were issued in the name of the Company but the moment the appellants came to know of the transfer of shareholding to Sadarudding Ganji, receipt was issued in the A/c of Sultan Karam Ali. The shares were sold in the year 1974 but the appellants were not informed about it. As the Company was not the tenant, by transferring his share the respondent No,1 parted with the possession of the disputed premises and inducted it in possession of the disputed premises without the knowledge, consent or written permission of the appellants. The subletting thus stands proved and the appellants are liable to be ejected. The appeal is allowed on the ground of subletting. The respondents are permitted to vacate and hand over vacant possession of the disputed premises to the appellants on or before the expiry of one year and shall continue to pay rent regularly. In case the respondents fail to vacate on expiry of one year writ of ejectment shall be issued without notice to them. Parties to bear their own costs.