HAMID ALI MIRZA, J.- This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against an order dated 15.12.1994 in Rent Case No. 137/1989 Mst. Perveen Fatima v. Mehfooz Ali passed by IInd Senior Civil Judge and Rent Controller, Karachi East, whereby an application under section 15 of the respondent/landlady was allowed on the ground of default in the payment of rent with the directions to the appellant/tenant to hand over the peaceful vacant possession to the respondent within thirty days from the date of impugned order.
2. Brief facts of the case are that the respondent filed an application under section 15 of the Rent Ordinance against the appellant/tenant on the ground that the appellant/tenant has failed to pay monthly rent since June, 1988 hence he was defaulter in the payment of rent. The appellant/tenant filed written statement wherein he has stated in para 3 that he has paid rent through receipt No. I0O for the sum of Rs. 3550/- on 14.8.1988 and a sum of Rs. 7400/- on 13.11.1988 as per receipts Annexures A and A/l. The respondent/landlady filed affidavit-in-evidence of Tayyab Hussain Ansari who produced photocopy of general power-of-attorney, photocopy of rent agreement dated 1.8.1983, postal registered receipt, photocopy of notice dated 19,10.1988. The appellant/tenant filed affidavits-in-evidence of Mehfooz Ali and Maqsood Hussain Qureshi. The parties' witnesses who filed affidavits-in-evidence were cross examined by the leamed counsel for the respective adverse party. After hearing the leamed counsel for parties, impugned judgment was passed.
3. Contention of the leamed counsel for appellant is that the Rent Controller has erred in holding that the appellant/tenant has committed default in the payment of rent from October, 1988. He has referred fo Annexures A and A/l, photocopies of the rent receipts of Rs. 7400/- dated 13.11.1988 and Rs. 3550/- dated 14/8.1988 making total Rs. 10,950/- and the said total amount is stated by learned counsel for the appellant to be rent till September, 1988 as per said two rent receipts which is also admitted by the leamed counsel for respondent. Leamed counsel for appellant also Contends that after the said payment, further, rent was sent through money order on 14.2.1989 and thereafter rent was deposited with the Rent Controller. Learned counsel further contends that in fact, the appellant/tenant has paid two months rent for the months of October and November, 1988 to the father of the landlady but no rent receipt was issued. He has placed reliance upon Muhammad Yasin v. Ali Muhammad (1996 CLC 221), Muhammad Rafiq and another v. The State (1990 M LD 650), M/s. John Traders and three others v. . Ahmed Ali (1986 CLC 561), Abdul Hakim v. Atiya Sultana (PLD 1995 Kar. 370); Hakim Ali v. Muhammad Salim and another (1992 SCM R 46); Ulfat Ali v. Abdul Shakoor (L992 CLC 744) and Fazal Hussain v. Mst. Bundu Hajjan (1991 M LD 651) in support of his contentions. Leamed counsel for the appellant in the alternative argued that period of tenancy agreement dated 1.8.1983 lapsed as it was not renewed hence the appellant became statutory tenant therefore the appellant could be at the most defaulter in the payment of rent for the month of December, 1988 only and in such case discretion could have been exercised by the leamed Rent Controller in favour of the appellant in view of the case-law.
4. Hafiz Abdul Baqi leamed counsel for respondent in reply has argued that the appellant has not paid rent for the month of October, 1988 till the filing of eviction application and as per his own evidence the appellant/tenant was therefore defaulter in the payment of rent from October, 1988 till the filing of eviction application on 5.2.1989. He has placed reliance upon Mrs. Zarina Khawaja v.
Agha Mahboob Shah (PLD 1988 S.C. 190) in support of his contention that the terms contained in the expired agreement will continue to operate except the terms and conditions which would be inconsistent to the provision of the Rented Premises Ordinance.
5. The respondent/landlady in para 3 of ejectment application has stated about the non-payment of rent since June, 1988 so also as per notice Annexure A' dated 19.10.1988 sent by the respondent's leamed counsel. The attorney Tayyab Hussain of respondent in his affidavit-in-evidence has reiterated the contents of the eviction application and in the cross-examination his veracity so far the nonpayment of rent from October, 1988 could not be shaken. The respondent's attorney in para 4 of the affidavit-in-evidence admitted the receipt of rent as per Annexures 'A' and 'A/l'. There is no reliable and satisfactory rebutting evidence on record that the appellant/tenant has paid rent from October 1988 to the respondent. The appellant in the written statement has also stated that rent for the month of October and November, 1988 was paid to the father of the respondent and no rent receipt was issued but in the said respect no suggestion in the cross- examination of Tayyab Hussain was made by learned counsel for the appellant/tenant. The appellant/tenant Mehfooz Ali in the cross has stated that it was incorrect to suggest that he has not paid the rent for the months of October and November, 1988 due to which he had sent for months' rent through money order. He has also stated that tenancy was month to month as per agreement. In the abovesaid statement of appellant in the cross-examination after the words "it is" a word appears which is stated by leamed counsel for the appellant to be "in" so as to make "incorrect" while according to the learned counsel for respondent the said word could not be "in" so as to read it as "incorrect" considering that if the rent for the months of October and November, 1988 was paid then there was no need of sending rent through money order to the respondent for for months as was the defence of appellant. Accordingly, the word used after the word "it is" could not be "in" but could be "is" which has been used twice un-intentionally considering that it fits in with the sense that as the rent was not paid for the said month therefore rent was sent through money order.
6. Besides the witness Maqsood Hussain in para 2 of his affidavit has stated that father of respondent on receipt of rent did not issue rent receipts for the said amount in respect of months October and November, 1988 whereas in the cross-examination he has stated that he did not know what was the rate of rent in the months of October and November, 1988 and stated that he himself paid rent to the attorney of respondent when the rate of rent was Rs. 1700/- per month and stated the he did remember the number of house where Haji Mushtaq resided and further stated that appellant sent rent through money order for October and November, 1988 and further he did not know Mushtaq Ellahi, father of the respondent.
7. The above statement of appellant's witness made in the cross- examination would show that his evidence is not confidence inspiring. It would also be seen that on one hand he has said that he himself has paid rent to the attorney of the respondent and on the other hand he said that he was not aware of the house of the said attorney Haji Mushtaq. On one hand he has stated that rent for the months of October and November, 1988 was paid by the appellant/tenant in his presence and on the other had he has admitted that rent for the months of October and November, 1988 was sent through money order. How it is possible that when rent is paid for the said months, the same could be tendered again through money order. It is not the case of the appellant that second time rent for said months was sent through money order. In the circumstances, no reliance could be placed upon the evidence of said witness.
8. Next contention of the learned counsel for appellant in the alternative is that as the agreement between the parties though admitted,, was not duly attested either by the Magistrate or by Rent Controller, it could not be looked into therefore rent would be payable after the expiry of sixty days, when the monthly rent is payable hence the rent for the month of October, 1988 would be payable after expiry of sixty days viz by 31st December, 1988 while the rent for the month of November, 1988 would be payable by 31st January, 1989 hence there could be no default in the payment of rent by the appellant. The contention has no merit and substance. Even it is said that the rent for the said that the rent for the said months was payable by the end of December, 1988 and January, 1989 then also as the appellant tendered rent as per money order coupon on 14.2.1989 (though the said fact has also not been proved) the rent for the said months was not tendered in time as required by law, there would be default in payment of rent.
9. Section 10 of Rent Ordinance clearly states that the rent in absence of any fixed date stated in the agreement between the landlord and tenant shall not be paid later than the tenth of month next following the month for which it is due, and such rent shall be paid on the acknowledgment of receipt in writing from the landlord while in case of refusal or avoidance to accept the same shall be sent by postal money order or be deposited with the Rent Controller and such acknowledgment or postal receipt shall be proof of payment of rent.
10. In the instant case tenancy agreement was not renewed between the parties and as per para 4 of the said agreement rent was payable by 10th of each calendar month which in the instant case has not been paid which has been proved by the respondent and the appellant has failed to rebut the respondent's evidence. But in case no rent receipt was issued by the respondent's attorney then appellant should have soon thereafter sent rent through money order to the respondent but no such evidence has been produced that the appellant sent the rent through postal money order soon thereafter. The postal money order coupon sent, is dated 14.2.1989 long after the alleged period of default in payment of rent. Neither postal money order receipt is produced nor postman is examinant to prove the refusal to accept money order, consequently, alleged tender of rent by money order could not be termed to have been made in terms of agreement or in terms of provision of law as contained in section 15 (2) of the Rent Ordinance. So far the said expired rent agreement between the parties, Supreme Court of Pakistan in reported case Mrs. Zarina Khawaja v.
Agha Mahboob Shah (PLD 1988 S.C. 190) at pages 199-200 has observed:- "We have carefully considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy, after its termination.
Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines: ONE: Notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with:-
(a) the general law; and,
(b) the terms of tenancy between the parties. But, subject to a very, important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect: TWO: During the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant, the regulation of that relationship particularly vis-a-vis the determination and payment of rent; as also the eviction, shall be governed by the covenants contained in the agreement; provided that those covenants do not come in conflict with the provisions of the rent law and' in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; THREE: After the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a tenant would include "a tenant continuing in possession after the termination of the tenancy in his favour". The definition of tenant in the present Sindh Law also provides that a tenant would include "any person who continues to be in possession or occupation of the. Premises after the termination of his tenancy". Not only this, the present Sindh Law made it more clear when the provisions contained in sections 6 and 15 (2)(i) of the Sindh Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre-existing law before the re-enactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which, are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed Law. Similar would be the case relating to some other situations, for example, the determination of the fair rent. Similarly, the vice versa position would also be correct. The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate.
For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for re-construction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on this aspect in the case of Muhammad. Yunus Malik v. Mst. Zahida Irshad (1980 SCM R 184) We accordingly answer the 4th and hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also."
In the circumstances, in the light of the above evidence and the case-law it could be concluded that the terms of agreement being not inconsistent to the Rent Ordinance would be operative and binding upon appellant/tenant therefore appellant was bound to pay rent by 10th of each succeeding month but as he failed to pay rent for the months of October, November, 1988 till the filing of eviction application he was rightly held to be defaulter in the payment of rent under the law.
11. Next contention of the leamed counsel for appellant that only one month's default has been committed therefore discretion could have been exercised in favour of appellant. The said contention has no merit as payment of rent for the two months viz. October and November, 1988 was not paid by the appellant/tenant. Even the perusal of Annexures 'A' and 'A/I' would show that rent for the months of July, August and September, 1988 was paid on 14.8.1988 and 13.11.1988 therefore rent for the months of July and August, 1988 was not paid by 10th of succeeding month, in terms of tenancy agreement. This would lead to conclusion that the appellant did not pay rent earlier also in time. The said conduct of making delayed payment sent by the appellant does not entitle him to the discretion to be exercised in his favour by this Court.
12. In the circumstances, I do not find merits in this appeal, consequently, same is hereby dismissed.
However, period of sixty days is given to the appellant/tenant to vacate the disputed premises subject to payment of rent for the said period.