' AJMAL MIAN, C.J.---This is an appeal with the leave of this Court against the concurrent judgments of the two Courts below i.e, of the learned VIth Senior Civil Judge/Rent Controller, Karachi (East), dated 8-1-1991 and'of the learned Single Judge dated 17-11-1993 in Rent Case No,3621 of 1979 and in F.R.A. No,85 of 1991 respectively granting ejectment on the ground of default for the payment of property tax amounting to Rs,11,850 and betterment tax amounting to Rs,2,100 for the year 1975- 1976.
2. The brief facts are that the appellant is a tenant in respect of Plot No,674/1, Jamshed Quarters, Clayton Road, Karachi, by virtue of registered Lease Deed dated 7-6-1969, hereinafter referred to as the Lease, executed between the respondent and the appellant's predecessor-in-interest Messrs Pak National Oils Ltd. At Rs,3,500 per month subject to the enhancement of the same as per terms of the Lease. The above rent case was filed by the respondent on 31-9-1979 on the basis of averment that the appellant had committed default by not paying the abovementioned amounts of property and betterment taxes for the above year i.e, 1975-76. The rent case was resisted.
However, the learned Rent Controller after framing issues, recording evidence and hearing the parties, by order dated 16-1-1985, allowed the ejectment application. Thereupon, the appellant filed F.R.A. No, 329 of 1985, which was allowed and the case was remanded through a judgment dated 5-12-1988 to enable the parties to lead evidence on the question, as to whether the appellant had actually received the Bill/PT Form-10 for the payment of taxes.
' After the above remand order, the learned Rent Controller after further recording evidence again allowed the ejectment on the ground of default by his aforesaid judgment dated 8-1-1991. Against the aforementioned judgment, the appellant filed aforestated F.R.A., which was dismissed through the impugned judgment.
' Thereupon the appellant filed a petition for leave to appeal, in which leave was granted to consider the following two questions:--
(1) Whether the question of default in the present case is to be determined with reference to the provisions of the late Ordinance or with reference to the provisions of the Ordinance?
(2) Whether the breach of above clause (2) of the Lease, if any, would be a breach in terms of sub- clause (b) of clause (ii) of subsection (2) of section 13 of the late Ordinance.
' It was also observed that the parties were free to raise whatever pleas were available to them in support of the above questions.
3. In support of the above appeal Mr. Usman Ghani Rashid, learned Advocate Supreme Court appearing for the appellant, has vehemently contended that since the alleged default was relatable to the period when the late Ordinance was in force, which did not contain any definition of the term "rent" as given in clause (i) of section 2 of the Ordinance, the question of default is to be determined with reference to the provisions of the late Ordinance. According to him, the two Courts below have erred in holding that there was default because of the alleged non-payment of certain amount of taxes.
' On the other hand, Mr. Muhammad All Sayeed, learned counsel appearing for the respondent, has urged that in view of subsection (2) of section 27 of the Ordinance, the case in hand was to be adjudicated upon in accordance with the provisions of the Ordinance as the rent application in question was neither fixed for arguments nor for judgment at the time of enforcement of the Ordinance. His further submission was that, in any case, under clause (2) of the lease deed the appellants were liable to pay taxes and, therefore, it was part of the rent as per the general principles of law in view of section 105 of the Transfer of Property Act, 1882, hereinafter referred to as the Act.
' It was lastly contended by Mr. Muhammad All Sayeed that, in any case, non-payment of taxes in question in terms of the lease constitutes infringement of the condition of the lease as per sub- clause (b) of clause (ii) of section 2 of the late Ordinance.
4. There is no doubt that the late Ordinance did not provide any definition of the term "rent".
Whereas clause (i) of section 2 of the Ordinance defines "Rent" as means including water charges, electricity charges and such other charges which are payable by the tenant but are unpaid.
5. Mr. Muhammad Ali Sayeed, learned counsel for the respondent, has referred to para. 20 of the judgment of this Court in the case of Muhammad Hussain Patel v. Habib Wali Muhammad and others (PLD 1981 SC 1 relevant at pages 8-9) in support of his contention that taxes are part of the rent, which reads as follows:-- "20. What is intended to be shown by quoting the above-noted observation is that as early as 1962 the Karachi High Court itself regarded the Transfer of Property Act as a law pari materia to the Karachi Rent Restriction Act and considered the definition of 'rent' given in section 105 of the said Act as relevant for the purpose of construing the same word occurring in the aforementioned Rent Act. From a reading of the definition of the word 'rent' in section 105 of the Transfer of Property Act, it is evident that it includes not only the money agreed to be paid but includes even services of other things to be rendered by the tenant to the landlord. In other words, according to this definition, whatever the tenant agrees or undertakes to render to the landlord in consideration of the enjoyment of his property, whatever it may or by whatever name it may be called, would, be included in the term 'rent'. As such if the tenant agrees to pay any part of the taxes to the landlord in addition to or in lieu of the substantive rent, that additional payment would also be included in the rent due from the tenant."
6. A perusal of the above-quoted para. From the aforesaid judgment indicates that it has been held that whenever a tenant agrees or undertakes to render to the landlord any consideration of the enjoyment of his property, whatever it may be or by whatever name it would be called, would be included in the term "Rent". However, it may be pointed out that a distinction has been drawn between the payment of taxes by a tenant to a landlord and to the authorities concerned directly by the tenant. It has been held that in the latter case, the taxes and other charges cannot be treated as part of the rent as the liability to pay the same is not to the landlord. In this behalf, reference may be made to para. 25 of the above report, which reads as under:- "25. Therefore, if one has to go by what the parties, in the present case, agreed to be between themselves, then it is evident that for the use and occupation of the premises the tenant had agreed to pay a sum of Rs,450 which included some taxes mentioned therein and they also agreed to pay some extra amounts of money towards certain other taxes, including the conservancy charges. In other words these extra amounts mentioned in the Rent Deed, though to be paid in addition to the sum of 450. Would also be due from the tenant. Had the agreement been that the tenant would be responsible to pay certain charges like electricity, water and conservancy charges directly to the concerned authorities, the position would have been different. But in the present case the tenant had specifically agreed that they would also be bound to pay the amounts of charges towards the aforementioned items to the landlord alongwith Rs,450. Therefore, according to the terms of the contract itself they made themselves' liable for the payment not only of Rs,450 described by them specifically as 'rent', but also to pay an extra sum of money, inter alia, towards the conservancy charges which had been calculated at Rs,51.75 per month. Had the term to be interpreted been simply 'rent' then it could have been argued that only the default in payment of that amount which specifically described by the parties as 'rent' would give rise to the liability of ejectment against the tenants and not the failure to pay any additional amount, though mentioned in the deed as payable by the tenants.
' But in the case in hand, the question, as agreed by both sides, is the interpretation of the term 'rent due' the non-payment of which, according to section 13 (2) (i) would render the tenant liable to ejectment."
7. In the *twit case, in para. 8 of the affidavit of Muhammad Naqi Chandakawala; who filed the same on behalf of the respondent/landlord, the following averments have been made:- "During 1969 to 1976 no bill was received from K.M.C. And Excise and Taxation Department and all the bills were received by the Opponent who had been paying the same to the authority directly without any knowledge to the landlord."
8. From the above-quoted portion of the affidavit of Muhammad Naqi Chandakawala, it is evident that the appellant was required to pay the taxes directly to the authorities concerned. However, it was urged by Mr. Muhammad Ali Sayeed that the appellant used to pay taxes on the superstructure directly to the authorities and that the taxes on the value of the land used to be paid by the appellant after receipt of the bill from the respondent/landlord. Be that as it may, it appears that the appellant received a demand notice of Rs,13,951 issued to Mr. Abdul Khaliq Chandakawala. The appellant addressed a registered acknowledgment due letter dated 10-7-1979 to the Excise and Taxation Officer, 'H' Division, Karachi, stating therein that alongwith the above notice they had not receive(' PT-10 Form.
9. It is an admitted position that on account of non-payment of the above amount, the Excise and Taxation Department attached the property and this amount was to be paid by the respondent.
There is nothing on the record to indicate that factually this amount was reimbursed by the appellant to the respondent. In any case, there was default in payment of the above amount.
Nothing has been brought by the appellant on record to indicate that the aforesaid amount of Rs 13,951 was not warranted by law or that this amount was not due and payable. In this view of the matter, it we were to hold that the taxes were payable by the appellant to the respondent, the same were in fact part of the "rent" as held by this Court in the case of Muhammad Hussain Patel v.
Habib Wali Muhammad, etc. (supra). But, if we were to take the view that they were to be paid by the appellant directly to the authorities concerned and the same were not part of rent, the appellant by virtue of clause (b) of para, 2 of the lease deed dated 7-6-1969 were liable to pay the taxes. The above clause (b) of para. 2 reads as follows:-- "2. The Company hereby covenants with Lessor as follows:-- (a)
(b) To pay property tax levied, or leviable by the Municipality or any other competent authority in respect of the said plot of land from the commencing date of this lease."
It may be observed that the non-payment of above tax amount would attract sub-clause (b) of clause (ii) of subsection (2) of section 13 of the late Ordinance, which reads as under:-- "13. Eviction of Tenant.- -(1) ......................................................................
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that -- (i)
(ii)
(a) .................................................................................................
(b) used the building or rented land for a purpose other than that for winch it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord."
10. It was then contended by Mr. Usman Ghani Rashid that since the period of 30 days had not expired after the receipt of the demand of the above amount of tax, namely, Rs,13,951, there could not have been any default as the liability to pay rent was within the period of 30 days as per lease.
Since we have held that the taxes were payable directly by the appellant to the authorities concerned, the same were not part of the rent. Secondly, under clause (b) of para. 2 of the lease deed, which provides for the payment of property lax by the appellant, no such period is provided.
Payment of taxes is to be made as required by the authorities concerned.
11. Adverting to the question, as to whether by virtue of subsection (2) of section 27 of the Ordinance the case in hand is to be adjudicated upon as per provisions of the Ordinance or in terms of the late Ordinance. Mr. Usman Ghani Rashid has relied upon the case of Idrees Ahmed and others v.
Hafiz Fida Ahmad Khan and 4 others (PLO 1985 SC 376), wherein the following observations have been made:-- "5-A. This brings us to the consideration of the Sindh Rented Premises Ordinance, 1979, in order to examine whether there is such curtailment or if any to what extent. Now this Ordinance 1979 is prospective in operation and does not, therefore, over-reach and destroy rights of the parties accrued under the repealed Ordinance by any such effect, However, section 27 expressly deals with the effect of repeal of the previous Ordinance on the pending proceedings. On a careful analysis of this section it would appear that two categories of pending proceedings were separately dealt with. In the first category were placed all appeals and such cases before a Controller as are fixed for argument or judgment and it was laid down that, notwithstanding the repeal of the old Ordinance under which such appeals and cases may have been instituted, shall be disposed of in accordance with the said Ordinance. The other category was of the residual cases instituted under the old Ordinance, which were pending before a Controller immediately before the commencement of the new Ordinance, which were to be continued and disposed of in accordance with the provisions of the new Ordinance. Orders made and proceedings taken in any such cases were given effect as ordered and proceedings under the new Ordinance. This residual category apparently related to pending proceedings before the Controller in which arguments were not heard or cases not fixed for judgment. This intention clearly was not to interfere with the rights of the parties in regard to appeals which would include first appeals pending before the Appellate Authority under the old Ordinance and cases pending in the Court of Controller which had reached a stage after the hearing of the arguments. All such cases were left to be governed by the provisions of the repealed law, but in regard to cases other than those mentioned above a different intention was manifested and the application of the old law was excluded, with the result that all rights to remedy existing under the repealed law were wiped off.
' In our opinion the clear effect of subsection (2) of section 27 was to leave all the right of appeal intact in regard to cases falling in the categories dealt with by that subsection and it would be anomalous to construe subsection (4) in the manner contended for, because that would leave a particular class of cases namely, first appeals disposed of by the Appellate Authority to be final and conclusive without reaching the High Court. The obvious intention under the scheme envisaged in the new Ordinance was that the proceedings would attain finality with the orders passed in appeal by the High Court."
12. It is true that in the above report the cases have been categorized in two categories, namely, the cases which were fixed before the Rent Controller for arguments or judgment at the time of the enforcement of the Ordinance, were to be determined as per provisions of the late Ordinance; and the other cases which were pending and in which the above stage had not reached, were to be adjudicated upon in terms of the Ordinance.
13. However, we may observe that we are not inclined to hold that if an act of the tenant was not a breach of the terms of tenancy at the time when the rent application was filed, the same cannot be treated as a breach by virtue of the provisions of the Ordinance. The rights of the parties as to the ground for ejectment are to be decided on the basis, what was the law obtaining when the alleged cause of action accrued and not on the basis of the new law. In our view, this question is not germane to the controversy in issue as we are not invoking the definition of the term "rent" as given in clause (i) of section 2 of the Ordinance.
14. Since there is a concurrent finding of the two Courts below on the question of default which is sustainable for the reasons we have recorded hereinabove, we are not inclined to interfere with the same. The appeal is, therefore, dismissed with no order as to costs. However, the appellants are allowed one year's time from today on the condition that they shall pay rent regularly to the respondent during the above period. Additionally, in case they fail to hand over the vacant possession of the plot on the expiry of the aforesaid period of one year, the learned Rent Controller shall issue a writ of ejectment with police aid without any further notice to the appellants.