' This judgment will dispose of F.R.As. Nos. 56, 57, 58, 59, 60 and 61 of 1993. In all these matters appellant is Mrs. Parveen wife of Ali Hamid, while respondents are Mrs. Ameena wife of Abdul Qadir, Mrs. Zubaida wife of Abdul Aziz, Mrs. Ameena wife of Abdul Razzaque, Haji Zikeria son of Muhammad Qasim, Mrs. Rashida Hajira and Sohail Brothers, respectively. The appellant has separately impugned the order dated 24-12-1992 of learned Vth Rent Controller, Karachi, East, whereby six eviction applications of the appellant were dismissed.
2. The appellant is a landlady and the respondents are tenants in respect of six different shops, situated on ground floor of building bearing No,2/172-Q, PECHS, Karachi, hereinafter referred to as the premises, on the basis of an agreement executed in the year 1976 which, inter alia, included a clause that rent was to be paid on first of each month i,e, from 1st March, 1976. It is alleged that rent from 1st February, 1986 was not paid by respondents Haji Zikeria, Mst. Rashida Hajira, and Sohail Brothers while respondents Mrs. Ameena wife of Abdul Qadir, Mrs. Zubaida and Mrs. Ameena wife of Abdul Razzaque had not paid rent from 1st March 1986, as per terms of the agreement, as such, on 15-5-1986 the Eviction Applications were filed against them. It is also the case of the appellant that after institution of rent cases, cheque dated 15-5-1986 was sent by respondents for the months of March, April, and May, 1986 in Appeals Nos. 56, 57 and 58 of 1993, and no cheque was sent by the respondents of Appeals Nos. 59, 60 and 61 of 1993.
3. The case of respondents Mst. Ameena wife of Abdul Qadir, Mst. Zubaida, and Mst. Ameena wife of Abdul Razzaque is that each of them had paid an amount of Rs,1,00,000 as "Pugri" to the appellant.
Respondent Haji Zikeria maintained that he had paid an amount of Rs,2,25,000 as "Pugri". Mst.
Rashida Hajira stated that an amount of Rs,2,00,000 was paid by. Her as "Pugri", while according to respondent Sohail Brother, an amount of Rs,2,35,000 was paid by them as "Pugri". According to respondents Haji Zikeria, Mst. Rashida Hajira and Sohail Brothers, they had paid rent from February to June, 1986 but rent receipts were not issued by the appellant.
4. The appellant and the respondents filed their affidavit-in-evidence and were cross-examined.
5. On assessm ent of the evidence brought on record, learned Rent Controller reached the conclusion that no default was committed by the respondents. He held that rent for the month of March, 1986 could be paid up to 10th June, 1986, as per section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, and, that cheque dated 17-5-1986 presented on behalf of three (3) respondents was within time. It appears that he accepted remaining three (3) respondents' plea that rent was paid by them but receipts were not issued by the appellant to them. Consequently, he dismissed all the eviction applications.
6. Learned counsel for the parties have argued their respective cases and also filed their written arguments.
7. Earlier, the Eviction Applications were allowed by the Rent Controller and Appeals preferred against said orders were dismissed by this Court. The Hon'ble Supreme Court, however, by consent remanded these cases to learned Rent Controller for their disposal of merits.
8. The fate of these appeals hinges upon interpretation of clause (ii), subsection (2) of section 15 of the Ordinance, which is 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 which agreement, within sixty days after the rent has become due for payment."
9. Learned counsel for the appellant contended that rent was not paid to the appellant since February/March, 1986 as mentioned earlier. It is not disputed that the respondents got their respective premises on execution of rent agreement in the year 1976, It is contended on behalf of the respondents that the agreement since beginning was not valid as neither proper stamp duty was paid thereon nor it was attested by Rent Controller or by First Class Magistrate, as is required under section 5 of the Ordinance, and in any case, since it was not renewed it ceased to operate at the most after eleven months. Also, it is urged on their behalf that said agreement being no more a valid document, the respondents could pay rent for the month of March 1986 up to 10th June, 1986, as per clause quoted above.
10. In the case reported as Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, it was examined by the Hon'ble Supreme Court that whether the terms of agreement become irrelevant for regulating tenancy on its expiry while the tenant continues to remain in occupation of the rented premises and the following was observed at page 192: "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 covenants."
11. In view of above authoritative pronouncement, it is clear that the terms and conditions of the agreement with regard to the mode of payment of rent would continue to operate irrespective of the fact that after 11th month, it was not renewed. By mutual agreement, the parties had agreed to pay rent on first of every calender month, as such, the rent for the month of March, 1986 at the most could be paid by 15th March, which was not done. On the contrary, the cheque of Rs,2,385 for three
(3) shops/premises was sent on 17-5-1986 by which time the default for three months viz; March, April and May 1986 was already committed, which was wilful. Learned counsel for the respondents argued that the rent from March to June 1986 was already paid by the respondents and in spite of that said cheque was issued. There is nothing on record to substantiate this plea. As regards, the respondents Haji Zikeria, Mst. Rashida Hajira and Sohail Brothers, they had neither sent any cheque/money order, nor deposited the rent in Court through miscellaneous rent case before committing default. Their plea is that they had paid rent from February to June 1986 but rent receipts were not issued to them. Suffice it to say that no evidence worth mentioning is available on record in support of this contention. They had committed wilful default for the aforesaid period.
12. The respondents have also raised a plea that they had paid 'Pugri' to the appellant, as mentioned earlier. It is significant to note that the respondents had not taken the plea of 'Pugri' when they had filed written statement on 31st July, 1986. However, on 22nd December, 1990, they were permitted to amend their written statements and thereafter the plea of Pugri was taken which was afterthought. The appellant has vehemently denied to have received Pugri from any one of them. The evidence of the respondents on this point is not satisfactory and it is not proved that any Pugri was paid to the appellant.
13. The respondents in the last para. Of written argument submitted that a new situation has arisen in these cases, as the appellant has transferred the leasehold rights of the premises and she is no more owner of these premises. On the strength of above allegations, learned counsel has prayed for remanding these cases to Rent Controller for holding enquiry in that regard. No proof in support of above assertion has been brought on record. Even it is not disclosed that to whom said leasehold rights have been transferred. The plea is vague and there is no justification for remanding these cases.
14. Learned counsel for the respondents in support of his contentions has cited: (11 Mst. Najma v.
Tariq Qadeer Khan 1988 CLC 122; (2) Noor Ahmed and another v. Khawaja Imran Ahmad 1988 CLC 1040; (3) National Bank of Pakistan v. Wadhumal through his Legal Heirs 1985 CLC 1053; (4)
Muhammad Yousuf v. Abdul Latif and 2 others 1982 CLC 398; (5) Syed Anis-ur-Rehman v. Mst. Saira Bai PLD 1985 Kar. 714 and (6) Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar.
16. Suffice it to say that the principles laid down in these cases are not attracted to the facts of these cases.
15. In consequence, I allow these appeals, set aside the impugned orders, allow the eviction applications and direct the respondents to hand over vacant possession of the premises in question to the appellant within four (4) months from now.