1. ' This appeal is directed against the order, dated 30-10-1986 passed by the learned IVth Senior Civil Judge and Rent Controller, Hyderabad, in the proceedings of Rent Application No,128 of 1982 whereby the eviction application filed against the respondent was dismissed.
2. ' The brief facts relevant for the decision of this appeal are that the appellants are owners of Property bearing No,1725/A-96, Hospital Road, Hyderabad, and the respondent is their tenant in respect thereof at the agreed rental of Rs,1,000 per month. The respondent failed to tender the rent of the case premises since 22-10-1981, hence it was prayed that the respondent be ejected from the case premises and vacant possession of the same be delivered to the appellant.
3. ' In rebuttal of the case of the appellants the respondent on 11-2-1984 filed its written-statement admitting the relationship of landlord and tenant between the parties and the quantum of rent. As to default in payment of rent it is the case of respondent that at the time of execution of Agreement of Lease, dated 22-10-1976 it had paid to one of the co-owners a sum of Rs,60,000 (Rupees sixty thousand) as advance rent for sixty months. It is also the case of respondent that it was put in possession of the case premises at the end of December, 1976 and in fact tenancy commenced from January, 1977 and was to end after 120 months. That the respondent made huge investment for the fittings and fixtures which are usual in case of Banks, though under the agreement landlord was to carry out repairs, colour wash, distemper, paint etc. But on their failure to do so respondent, on oral permission/consent of one Shandad Ali, one of the co-owners of the case premises, carried out the same at their own cost of Rs,5,370 which amount was to be debited to the rent account of the appellants. It was denied that the rent was due from 22-10-1981 and the aforesaid advance payment of rent covered the period upto December, 1991 and the expense of Rs,5,370 was also to be adjusted towards the rent of another period of five months, according to which the rent was deemed to have been paid upto May, 1982. It is also the case of respondent that since the executant of the agreement died in the meanwhile and nobody turned up to collect the rent, therefore, the respondent filed an application under section 10 of the Sindh Rented Premises Ordinance, 1979, before the Controller and deposited the rent of June, 1982 and ever since have regularly been depositing rent in the Court of Rent Controller. Hence it was pleaded that neither the respondent has failed to tender rent due for any month nor is liable to eviction.
4. ' In support of case of the appellants, appellant No,1, Haji Bagh Ali son of Hussain Ali, filed his affidavit-in-evidence wherein he reiterated the statements made in the eviction application and further submitted that neither the respondent had any authority or power to carry out the repairs etc. Of the case premises nor in fact any alleged repairs were carried out and as such respondent was not entitled to the adjustment of the alleged amount of Rs,5,370. He also submitted that Shandad Ali died on 22-7-1979 and the respondent had the knowledge of his death and knew that appellants are the surviving owners of the case premises. That the respondent bank committed deliberate default in payment of rent and it was liable to be evicted from the case premises. The said witness of the appellants was cross-examined by the learned Advocate for respondent on 9- 4-1985. In the cross-examination it was categorically stated that the witness is brother of Shandad Ali, who was a co-owner and had executed the rent agreement, dated 22-10-1976, photo copy of such lease agreement is on record as Exh.31. For want of knowledge it was denied if said Shandad Ali had undertaken to make any changes in the case premises as per requirement of respondent bank. It was voluntarily stated that at the time of Agreement of Lease the case premises was a new building, therefore, question of repair or changes did not arise. It was denied that respondent bank carried out and effected the alleged repairs subject to adjustment of Rs,5,370. It was stated that the fact of death of Shandad Ali was verbally communicated to the bank authorities. The witness denied the receipt of notice, dated 27-6-1982 issued by respondent Bank requiring the appellants to collect the rent. In cross-examination the suggestion that the respondent is not a defaulter was denied.
5. ' On behalf of respondent its two officers, namely, S. Shamim Ahmed and Nizar Ali Khoja, filed their affidavits in evidence and they were cross-examined by the learned counsel for the appellant. In the affidavit-in-evidence of said witnesses the averments made in the written statement of respondent bank were reiterated but in the cross-examination respondent's witness S. Shamim Ahmed admitted the execution of agreement of lease, Exh.31, but he stated that at that time he was not Manager of the respondent bank as he was appointed on the said post from 1-4-1977 to 7-7- 1979. He admitted that as a matter of fact tenancy in respect of the case premises commenced from 22-10-1976 and at that time case premises was a newly constructed building but it was without plaster and fixtures. He also admitted that the respondent bank did not give any notice to Shandad Ali for completing the building with plaster and fixtures. He denied that Shandad Ali had not permitted to carry out the repairs and plaster at his expenses. He denied that the cost of repairs as per Exhs. 24/1 and 24/2 do not pertain to the case premises. He admitted that when the case premises was given on lease to the bank it was already colour washed, distempered and painted. He stated that he is unable to say if rent was offered to the appellants by the respondent bank after the expiry of lease period of five years as according to him he was already transferred from the bank branch in question before the expiry of the lease period.
6. ' Nizar Ali Khoja, the other witness of respondent bank in his affidavit in evidence admitted the execution of Exh.31 but stated that actual and physical possession was not delivered to the respondent bank till the last week of December, 1976 and that in fact the tenancy commenced from January, 1977 and not from 22-10-1976. In his cross-examination the said witness stated that he has never remained incharge of the branch of Habib Bank Limited in the case premises and that according to the agreement of lease (Exh.31) the tenancy commenced from 22-10-1976 and that newly constructed building was handed over to the respondent Bank. He also stated that it is a fact that building in question did not require any repairs at the time when the respondent bank got its possession. He voluntarily stated that the respondent bank had carried out necessary work of sanitary fittings, colour wash and electricity work in the case premises and that the vouchers produced as Exh.24/1 and Exh.24/2 pertain to the work carried out by the bank in the case premises.
7. ' In order to resolve the controversy with regard to the actual date of commencement of tenancy and the need of repairs, white wash etc. It will be pertinent to refer to the pre-amble and clauses 3, 4 (a) and 4(b) of the agreement of lease which is on record as Exh.31. Admittedly Exh.31, dated 22- 10-1976 was executed between the parties. The clauses 3, 4(a) and 4(b) of Exh.31 (Agreement of Lease) read as under:- "3. The duration of the lease shall be 120 months commenced from the 22nd day of October, 1976 on which date the tenant will be put in possession of the Demised Premises."
(4) The landlord hereby covenants with the Tenant as under:---
(a) To allow the Tenant to carry on its business of banking in the Demised premises and to allow peaceable vacant and uninterrupted use and occupation of the Demised Premise.
(b) To effect such repairs colour wash, distemper, paint on the doors, windows, gates, garage as may be called upon by and to the satisfaction of the Tenant as conveyed to the Landlord by the Manager of the Branch in occupation of the Demised Premises, by way of Tenant."
8. ' From the reading of aforesaid clause (3) of Exh.31 it is amply clear that the tenancy in question commenced with effect from 22-10-1976 and as such the payment of advance rent of Rs,60,000 was upto 21-10-1981 and as such the future rent at the rate of Rs,1,000 per month was payable by the respondent to the appellants with effect from 22-10-1981.
9. ' It will be pertinent to refer to section 10(3) of Sindh Rented Premises Ordinance, 1979. According to which 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.
10. Admittedly, no money order of any amount was sent by respondent Bank to any of the appellants.
11. In view of terms and conditions of lease, said advance rent of Rs,60,000 was adjustable upto 21-10- 1981 whereafter the respondent was bound to pay or tender future rent to the appellant at the rate of Rs,1,000 per month, which has not been done. This fact, even according to the version of the respondent amounts to the deliberate default in payment of rent.
12. ' As to the adjustment of Rs,5,370 allegedly incurred by the respondent in carrying out the repairs etc. I again revert to clause 4(b) of Exh.31, according to which the Manager of the respondent Bank in the first instance had to call upon/convey to the landlord that repairs, colour wash, distemper, paint etc. Was needed to be carried out; but no such demand has been proved to have been made on the landlord. Before dilating upon this controversy I will prefer to make reference to the provisions of section 12 of the Sindh Rented Premises Ordinance, 1979 and for the sake of convenience it is reproduced hereunder:--- "(12) Repairs.---(1) Subject to the agreement if the landlord fails to make such repairs or white- washing as may be necessary to keep the premises in proper shape, the Controller may, on application made to him by the tenant and after such inquiry as the Controller deems fit to make, direct that such repairs or white-washing may be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord.
(2) Where any authority empowered by a law for the time being in force has required landlord to make such repairs within such period as may be specified by such authority and the landlord has made default in this behalf, such authority was require the tenant to make such repairs.
(3) Where the tenant has made the repairs as aforesaid the authority ordering the repairs shall, after the verification of the details of the expenditure incurred by the tenant, certify the cost repairs and tenant may thereupon deduct the amount so certified from the rent payable to the landlord.
13. ' According to the above provisions of law on the failure of the landlord to carry out necessary repairs the tenant has to make an application to the Controller who after the enquiry can direct that such repairs or white-wash may be made by the tenant and the cost thereof be deducted from the rent payable to the landlord. In the instant case, admittedly before carrying out the alleged repairs neither any request was made to the landlord nor the concerned Controller was approached through an application seeking his permission to carry out the repairs and to deduct cost thereof from the rent payable by the tenant to the landlord.
14. ' On the basis of the foregoing, I am not inclined to allow the respondent to deduct the alleged amount of Rs,5,370 which comes to be the rent of more than five months of the case premises at the agreed rate of Rs,1,000 per month. It is also pertinent to mention here that the respondent has failed to examine the person who carried out the alleged repairs in the case premises and to whom the said sum of Rs,5,370 was paid.
15. ' In support of his case the learned Advocate for the appellant has relied upon the reported cases of (1) Muhammad Ali v. Mst. Madina and 2 others 1986 CLC 955 (2) A.R. Umer v. Haji Abdul Karim, 1993 M LD 2215 (3) Messrs Bamboat & Co. v. Messrs G.B. Construction Co. 1995 M LD 816.
16. ' On behalf of the respondent its learned Advocate contended that there is no document of delivery of possession of the case premises from the appellants to the respondent showing that the possession of the case premises was in fact delivered on 22-10-1976 and as such he contended that the deposition of witnesses of respondent should be believed that the possession of the case premises was delivered to the respondent in January, 1977 from which date the tenancy commenced and as such the advance payment of Rs,60,000 was to be treated as rent for the period from 1-1-1997 to 31-12-1981. He further contended that in view of Exh.24/1 and Exh.24/2 there was no need to examine the person who had carried out the repairs in the case premises and to whom the said sum of Rs,5,370 was paid. The learned Advocate for respondent contended that after the death Shandad Ali, the executant of Exh.31, the respondent bank vide letter, dated 27-6- 1987 (Exh.26 on record) had required M/s. Haji Bagh Ali, Feroz Ali and Ashraf Ali to disclose the bank as to who are the legal heirs of the case property and that the bank should have been informed as to who was authorised person to whom the rent could be paid. It is pertinent to mention here that no rent was tendered to all or any one of the three above-named persons and subsequently vide Exh.28/1 and Exh.28/2 rent was deposited in Court in favour of Bagh Ali.
17. ' During the course of his arguments learned Advocate for respondent submitted that the above- referred citations made by the learned counsel for the appellants are not attracted to the case in hand and on his own part the learned counsel has relied on the reported cases of (1) Sh. Fazalur Rehman v. Muhammad Yousuf 1986 CLC 702 (2) Muhammad Yasin v. Ali Muhammad 1996 CLC 221 and (3) Haji Ahmad Haji Abdur Rehman v. A.H. Sherazai 1987 CLC 378.
18. In the circumstances of the case and the law applicable to the matter, I am of the considered view that the appellants have established through their oral and documentary evidence that the date of commencement of tenancy was 22-10-1976 and in the absence of any requisition or demand, in terms of clause 4(b) of Exh.31 and without adverting to the provisions of section 12 of the Sindh Rented Premises Ordinance, 1979, the respondent had no authority either to carry out any repair etc. Or to claim deduction of Rs,5,370 allegedly spent by it on the repairs of the case premises.
19. Hence, from the record it is amply clear that the respondent has committed flagrant, deliberate and wilful default in payment of rent of the case premises as submitted by the appellants in their pleadings and evidence. I am of the opinion that the aforesaid citations referred to by the learned Advocate for the appellants are aptly applicable to the case in hand whereas the citations made by the learned Advocate for the respondent are not attracted to the facts and circumstances of the case.
20. I have carefully perused the impugned order, dated 30-10-1996 and find that the learned Controller in passing the said order has failed to interpret the agreement of lease, dated 22-10-1976 Exh.31 in its proper perspective and has erred in ignoring the evidence of appellants and has further erred in believing the respondent whose witnesses themselves have admitted that the tenancy commenced w,e,f, 22-10-1976 and that for carrying out the alleged repairs that did not obtain any permission of the appellants or the competent authority or of the concerned Rent Controller and as such he should not have dismissed the eviction application of the appellant.
21. ' For the foregoing reasons I set aside the impugned order, dated 30-10-1986 and allow this appeal with costs and keeping in view that the case premises is a commercial premises allow to the respondent a period of six months for vacating and handing over peaceful possession thereof to the appellants subject, however, to the continuance of payment of due rent by the respondent to the appellant and/or deposit of such rent in Court. In case the respondent fails to pay or deposit the due rent, as aforesaid, then the appellants would be free to move appropriate execution proceedings against the respondent forthwith.
22. ' Above are the reasons by my short order, dated 6-2-1998 whereby this Rent Appeal has been allowed with costs.
23. ' The appeal is allowed with costs.