This second appeal is directed against the concurrent findings of the learned Rent Controller and the learned Additional District Judge by means of their detailed orders/judgments recorded on 15- 5-1993 and 14-6-1994 respectively.
2. The facts giving rise to this second appeal, briefly stated. Are that Muhammad Yaqoob Butt filed an application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 against one Khawaja Maqsood-ul---Hassan as early as on 2-12-1986 alleging therein that the respondent had taken on rent the house in dispute, fully described in the head note thereof vide rent note, dated 26-12-1975 at the rate of Rs.325 per month; but the respondents failed to make the payment of the rent due ever since September, 1986 which obliged him to seek his relief through the Rent Controller on the sole ground of default in the payment of rent.
3. During the pendency of these proceedings both Khawaja Maqsood-ul---Hassan and Muhammad Yaqoob Butt expired one after the other and their legal representatives were brought on record in accordance with law and the pleadings amended accordingly.
4. The tenants so brought on record contested this application and on the pleadings of the parties, the learned Rent Controller then seized of the matter framed the following issues on 23-7-1988:--
(1) Whether the property in dispute is an Industrial concern and the Court has got no jurisdiction to try the matter? O. P.R. 2 to 5.
(2) Whether the petition is frivolous and vexatious, if so, its effect? O.P.R 2 to5.
(3) Whether the respondents Nos.2 to 5 are defaulter since September, 1986, if so, its effect? O.P.A.
(4) Relief.
5. Both the parties then led evidence on these issues consisting of the statements of Mad Ullah A.W.1, Masood Ahmad A.W.2 and Muhammad Yaqoob Butt petitioner. (as he was alive then) as A.W.3. The tenants on the other hand relied on the evidence of Arshad Ali R.W.1; Sajjad Javed R,W.2 and Khawaja Abid Hassan R.W.3. The Rent Controller found Issues Nos.1 and 2 against the tenants and on issue No.3 after holding the respondents/tenants as defaulters accepted the ejectment petition and ordered the eviction of the tenants/appellants but afforded them a period of one month to vacate the premises.
6. The appeal filed by Mst. Maqsooda Begum and other tenants also failed and was accordingly dismissed by the learned Additional District Judge who again afforded 30 days time to the appellants to vacate the premises. Still dissatisfied the tenants have filed this second appeal.
7. The learned counsel for the parties have addressed considerably lengthy arguments and the evidence on record has been carefully and minutely perused with their assistance. It is only issue regarding default on which arguments have been addressed.
8. The claim of the' landlords is that the default in the payment of rent started with effect from September, 1986. On the other hand it has been urged by the tenants that the rent was regularly paid by the original tenant Khawaja Maqsood-ul-Hassan who died on 2-11-1985 whereafter his widow Maqsooda Begum started paying the rent with effect from November, 1985 and it was paid upto December, 1986. On the refusal of the landlords to acknowledge the same thereafter, through money order; they started depositing the rent in the Treasury with the permission of the Court.
9. According to the evidence; Mad Ullah A.W.1 did not state anything with regard to default in payment of rent. Masood Ahmad A.W.2 claimed that he accompanied the landlord in the last days of November, 1986 when he had some dispute with the tenants over the arrears of two months rent.
In his cross---examination, however, he deposed that it was perhaps in November or December, 1986 that he had so accompanied and it was from Masood (obviously the son of the original tenant) that the demand of rent was made. Muhammad Yaqoob Butt whose age is recorded as 83 years (on 11-6-1990) entered the witness-box to claim that the tenants failed to make the payment.
Of rent for October, November, in spite of repeated demands and that he took Masood Ahmad (A.W.2) also with him but no payment of rent was made. He, however, turned down the suggestion that the rent had been paid upto December, 1986 and asserted that rent for the months of September, October and December, 1986 had not been received by him. The respondents/tenants, however, claimed in their evidence that they were not defaulters and the payment of rent was duly made. It is this evidence which has to be appraised in the light of the submissions made by the learned counsel for the parties.
10. The learned counsel for the appellants has asserted with vehemence that the contractual tenancy created under the rent note, dated 26-12-1975 came to an end after the expiry of a period of 11 months and thereafter it shall be presumed that the tenancy was to be governed under the second part of clause (1) of subsection (2) of section 13 which allows tenants a period of sixty days from period for which rent remains payable, as held in Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCM R 18. Relying on Adamjee v. Haji Ghulam Ali 1986 CLC 2376 he developed an argument that in.Absence of any agreement a deed the ordinary implication of tenancy would be that rent was payable monthly and at the end of each calendar month, and the cause of action would only accrue if the tenant had not paid or tendered rent due by him within 60 days from the period for which the rent was payable. According to him, since the respondents made compliance with the direction of this Court and deposited the tentative arrears of rent as directed by the Rent Controller the tenants/appellants cannot be termed as defaulters.
11. The learned counsel for the respondents has, on the other hand, relied on a chain of authorities including Ch. Atta Muhammad Ghumman v. District Judge and another 1987 M LD 2419 (Lahore); Fazal Ahmad Khan Saleemi v. Mrs. Anwar Iqbal 1987 CLC 1638 (Lahore), Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, Haji Jewana v. Nadir Ali and others 1991 CLC 1505, Edoo v. Fida Hussain Tapal 1994 CLC 1915 (Karachi), Mrs. Khursheed Agha v. Mst. Hajra Bi through Legal Heirs and others 1995 M LD 163 (Karachi), Dr. Surayya Matin and others v. Mst. Akhtarunnisa 1995 M LD 456 (Karachi), Zahid Ghafoor v. Mrs. Rehana Rafique 1997 M LD 2719 (Karachi) and Muhammad Luqman Ahmad v. Munir Ahmad and another 1997 CLC 651 (Lahore) and has strongly refuted the claim of the learned counsel for the appellants.
12. After going through the case-law cited at the Bar I have come to the irresistible conclusion that the terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate, as held in the leading judgment Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190. I am further, fortified, in arriving at this conclusion by what has been laid down in Dr. Surayya Matin and others v. Mst. Akhtarunnisa 1995 M LD 456 (Karachi) that agreement of tenancy though expired would continue in force with liability of tenant to pay rent at the same rate and time and the consequences of non--payment of rent would be subject to law in force. Tenant was bound to pay rent within 15 days of expiry of time fixed in the agreement of tenancy as held in Zahid Ghafoor v. Mrs. Rehana Rafique 1997 M LD 2719 (Karachi).
13. The contention that the landlord was not sure as to for what period the tenants had committed default as deposed by him in his cross-examination, is also of no avail to the appellant firstly because Muhammad Yaqoob Butt obviously was a very old person (83 years at the time when he was cross---examined) and could not be expected to immediately follow the import of the questions put to him and secondly because although initially onus to prove default lies on landlord but the same being a negative fact the moment landlord makes a statement on Oath denying having received any -rent onus would shift to tenant who must affirmatively establish that he had paid/tendered rent as held in Muhammad Luqman Ahmad v. Munir Ahmad and another. 1997 CLC 651 (Lahore). The same view had earlier been taken in Fazal Ahmad Khan Saleemiv. Mrs. Anwar Iqbal 1987 CLC 1638 (Lahore) in which it was held that failure on the part of the tenant to prove as to when rent of two successive months was paid/tendered would render him liable to ejectment. The appellants have thus, very badly failed to prove that the rent had regularly been paid as and when due and that they are not the defaulters.
14. The upshot of my discussion above is that this second appeal is without merit and cannot but be dismissed. It is accordingly dismissed with costs throughout. The appellants/tenants must hand over the vacant possession of the premises' in dispute to the landlords positively within a period of 30 days failing which they shall be entitled to get the premises vacated through the process of the Court.