1. This is an appeal under section 24(1) of the Cantonments Rent Restriction Act, 1963 directed against the order dated 10-5-1994 passed by learned Rent Controller, Clifton Cantonment, Karachi in Rent Case No.86 of 1993, Mst. Rehana Refique v. Zahid Ghafoor whereby an application under section 17 of Cantonments Rent Restriction Act, 1963 for ejectment was allowed, hence the present appeal.
2. Brief facts of the case as stated are that respondent /applicant is the landlady while appellant/opponent is the tenant in respect of ground floor premises situated on Plot No.7-B/1 First Central Lane, Defence Housing Authority at the rate of Rs.5,000 per month excluding water, conservancy, betterment taxes as well as excluding electricity, Sui gas and telephone charges. The water conservancy taxes are also payable by appellant on the yearly basis to the extent of 50 % of the main bill received from the Clifton Cantonment Board. It has been stated that premises in question was initially rested out to appellant/opponent's father vide written tenancy agreement dated 5-8-1985 whereunder rent for premises was agreed to be paid in advance on six months basis i.e. The rent of the months of January to June was payable in the first week of January.
3. Similarly, for the months of July to December the rent was payable in the beginning of July of the year. It has been further stated that after expiry of the period of agreement executed between the respondent and appellant's father, it was mutually agreed by the respondent, the appellant and the appellant's father that from October, 1987 onwards the appellant would continue to be tenant of the respondent who shall be liable to pay rent and other charges in respect of the rented premises for which an agreement was reduced in writing but the appellant avoided to sign the same. It is also stated that since 1987 onward appellant used to pay and respondent used to receive the rent in respect of the premises in question in advance every six months as per mutual verbal agreement and the appellant paid rent from 1-7-1990 to 31-12-1990 on 10-7-1990 through pay-order and rent for the period from 1-1-1991 to 30-6-1991 was paid on 14-1-1991 through pay- order and rent from the period from 1-7-1991 to 31-12-1991 was paid on 3-9-1991 through pay-order and rent for the period from 1-7-1992 to 31-12-1992 was paid on 19-7-1992 through pay-order and rent for the period from 1-1-1993 to 30-6-1993 was paid on 3-2-1993 .But thereafter appellant/opponent deliberately and intentionally failed to pay or tender rent for the premises in question for the period from 1-7-1993 onwards despite the repeated requests and demands made to the appellant/opponent who also failed" to pay water conservancy charges for the same period amounting to Rs.1,612 being 50% of the bill issued by the Clifton Cantonment Board. The respondent served the appellant with a notice dated 31-10-1993 requesting him to clear the arrears and so also to vacate the rented premises on the ground of default in payment of rent which was replied by the appellant/opponent through his advocate as per letter dated 30-10-1993 and also sent pay order dated 27-10-1993 for the sum of Rs.30,000 being rent for six months excluding the water and conservancy charges as per his share which rent was in fact payable by the appellant/opponent in the beginning of July, 1993.
4. The appellant/opponent filed written statement admitting to be tenant and his liability to pay water and conservancy charges according to his share but denied to have committed default or made any delay in payment of rent. The appellant/opponent denied about the execution of rent agreement and started that Annexure 'B' was forged one. Appellant opponent stated that the respondent-was demanding 100% increase in rent to which he did not agree and on 20th October, 1993 he offered an increase of Rs.1,000 but the respondent/landlady did not agree, therefore, he sent rent at the old rate of Rs.5,000 per month through pay order amounting to Rs.30,000 being six months rent for the period from 1-7-1993 to 31-12-1993. So far the payment of water conservancy charges, the appellant stated that the respondent did not supply copy of water and conservancy charges bill and did not make any demand for the payment of same, therefore, question of non- payment of the same would not arise. In the end the appellant/opponent has said that there has been no wilful default on his part.
5. Respondent/applicant filed affidavit-in-evidence of Mrs. Rehana Rafique who produced lease agreement Exh.A/1, lease agreement Exh.A./2 which is unsigned, photocopy of notice dated 21-10- 1993 as Exh.A./3 alongwith an acknowledgement due card, reply of the notice dated 30-10-1993 Exh.A./4, notice dated 6-11-1993 as Exh.A./5 sent by respondent's Advocate, notice dated 24-11-1993 Exh.A./6 sent by appellant's advocate, notice dated 29-11-1993 alognwith A.D. Sent by respondent's Advocate. Appellant filed affidavit-in-evidence of appellant Zahid Ghafoor and all the witnesses examined by the parties were cross-examined at length by the respective counsel for the parties.
6. I have heard learned counsel for the parties and perused the record and proceedings and the case-law cited by the respective counsel for the parties. Leaned counsel Mr. Sheikh Muhammad Mushtaq contends that there is neither wilful nor deliberate default in the payment of rent for the months from July, 1993 to December, 1993 as the payment was made for the said period on 30-10- 1993 by pay order while ejectment application was filed on 10-11-1993. He further contends that the rent as per lease agreement dated 5-8-1985 was payable by the appellant/opponent on six months' advance basis and that the respondent/landlady wanted 100% enhancement of rent but he was inclined to enhance Rs.1,000 per month which was declined by the respondent/landlady, hence there was delay in sending six months' rent in advance. He has placed reliance upon (i)
7. Abdul Latif v. Munir Ahmad (PLD 1987 Karachi 460), (ii) Tahir A.I and 2 others (1989 SCMR 403) in support of his contention. Learned counsel for the respondent, Mr. Iftikhar Javed Qazi has argued that the appellant/tenant had admitted the tenancy and the rate of rent and the period of default and has further admitted that he was supposed to pay rent in advance on six months basis and rent for the period from July, 1993 to December, 1993 was to be paid in the first or second week of July, 1993 but he paid rent through pay order on 30-10-1993, therefore, there was clear default in the payment of rent.
8. He has placed reliance upon Rahmat Khan v. Abdul Razzaque (1993 CLC 412), Shezan Limited v.
9. Abdul Ghaffar (1993 SCMR 2400), Qazi Zahir Ahmad v. Amjad A.I (1984 MLD 1080), Ghulam Abbas v.
10. Sultan Ahmad (1987 MLD 704), Fayyaz Ahmad Khan v. Dr. Aqeel Ahmad (1987 CLC 364), Arshad Khan v. Messrs Swiss Bakery and others (1983 SCMR 216), Salim Ahmad Khan v. Mst. Jamila Latif (1990 CLC 340), Messrs Razaq Mill Stores v. Messrs 1Vlian Chambers (1993 MLD 1557), Muhammad Yousuf v. Hakeem Muhammad Ahmed (PLD 1978 Lah.815) and A.R. Umer v. Haji Abdul Karim (1993 MLD 2215). In support of his contentions.
11. The only point for consideration is as to whether appellant/tenant has committed default in payment of rent for the period from July 1993, till December, 1993 in terms of the agreement dated 5-8-1985 entered into between the respondent/landlady and the father of the appellant under section 17(2)(i) of the Cantonments Rent Restriction Act, 1963. The respondent in her affidavit has corroborated and reiterated the contents of the ejectment application and she has been also corroborated by her husband in his affidavit. The appellant/tenant's learned counsel has cross- examined both the witnesses at length and learned, counsel has suggested a question in affirmative that the appellant has been paying rent at the rate of Rs.5,000 per month in advance for six months till June, 1993. There is even no suggestion from the side of the learned counsel for the appellant that the rent was not to be paid in advance for six months. In fact, the respondent has admitted the payment of rent to be made in advance for six months. Learned counsel for the appellant has also suggested a question in affirmative that after he was served' with legal notice by the respondent's counsel, an amount of Rs.30,000 being rent for the months of July, 1993 to December, 1993 was sent to her by pay order on 11-10-1993. Learned counsel for the appellant has also suggested in the affirmative to the respondent's husband that after the filing of the case pay order for Rs.1,612 was sent to the respondent being amount of water and conservancy charges.
12. Appellant's counsel while cross-examining the landlady has also admitted that there has been a tenancy agreement in writing between the previous tenant, i.e. The appellant's father and the respondent from the above trend of cross-examination it can conveniently be concluded that in fact the appellant/tenant has admitted the case of the respondent/landlady regarding non- payment of rent for the period from July, 1993 to December, 1993 and has also admitted that .There has been a written tenancy between the respondent and the appellant's father which was enforceable between the parties. It is not the case of the appellant that he was tenant on month to month basis. In the circumstances, appellant was bound to pay rent within fifteen days of the expiry of the time fixed in the agreement dated 5-8-1985 and under section 17(2) (i) of the Cantonments Rent Restriction Act. The case-law on the point is quite clear, therefore, it can conveniently be said that the appellant/tenant who stepped in the shoes of his father failed to pay rent in terms of agreement dated 5-8-1985 under the law on the basis of holding over of tenancy in the terms of aforementioned agreement, the terms of which being not repugnant to the rent laws as held in Zarina Khawaja v. Agha Mehboob Shah reported in PLD 1988 SC 190 at page 201 wherein it was observed:-- "Thus, it can safely be said that rent laws permit all covenants in agreements, alive or expired; which, are permissible under general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law. In addition, that also remains operative for other purposes permitted by general law. " '
13. There is no substance in the contention of the learned counsel for the appellant that there has been no wilful default. On the contrary the respondent has successfully proved that there has been deliberate and wilful default in the payment of rent for the abovesaid period in terms of agreement and under section 17(2) (i) of Cantonments Rent Restriction Act and nothing has been shown whereby discretion could be exercised in favour of the appellant. Accordingly, there is nothing to interfere with the impugned judgment of Rent Controller, hence the appeal is dismissed with no order as to costs.