1. ' This appeal has been filed by the owner/landlord aggrieved against the judgment dated 20-7- 1988 passed by the llnd Senior Civil Judge/Rent Controller, Karachi, South, in Rent Case No,1578 of 1985 (Old No, 3538/82) thereby dismissing the ejectment application.
2. ' The brief facts are that the respondent is a tenant in respect of shop situated on Plot No, N.P.1/73 Sarafa Bazar, Karachi owned by the appellant/landlord under tenancy agreement dated 31-3-1980 on the monthly rent of Rs,150. The appellant/landlord filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 on the ground of default from 1-41982 to 31-8-1982, subletting thereby violating th term of the tenancy agreement; and also addition and alteration in the premises causing damage to the property and impairing its utility. Notice was issued to the tenant who filed written statement on 6-6-1983 denying all the allegations contained in the application.
3. The appellant/landlord filed his affidavit-in-evidence and was cross-examined so also the tenant Mst. Hawa Bai filed her own affidavit-inevidence and produced Abdul Qadir, Iqbal, Abdul Sattar, lbrabim as witnesses. All of them except Ibrahim were cross-examined. Meanwhile, application under section 16(1) of Sindh Rented Premises Ordinance was filed seeking direction for ieposit of arrears of rent to which objections were filed by the tenant/respondent seeking adjustment of the amount already deposited in Court. Tentative rent order, dated 24-3-1984 was passed by the learned Rent Controller for deposit of rent which was complied with by the tenant/respondent. On the basis of pleadings the learned Rent Controller framed the following issues:-- "(1) Whether opponent is wilful defaulter in payment of rent?
(2) Whether the opponent has caused damage to the demised premises?
(3) Whether the opponent has sublet the demised premises?
(4) What should the order be?"
4. After hearing the parties the learned Rent Controller passed the impugned judgment dated 20-7- 1988 dismissing the application filed by the appellant/landlord. Hence the present appeal.
5. ' The contention of Qazi Wali Muhammad, the learned counsel for the appellant/landlord was that the learned Rent Controller dismissed the application without considering the facts and evidence on the record. It was further contended that the learned Rent Controller did not apply his mind to the relevant evidence as such has committed an error in holding that "there is a tenancy without agreement between the parties" and that all the findings on the three issues raised before the learned Rent Controller are contrary to the facts and evidence on the record as such the impugned judgment is liable to be set aside.
6. ' On the other hand, Mr. Khalid Farooqui, the learned counsel for the respondent/tenant contended that no default was committed by the tenant and the rent was being paid according to the tenancy agreement as such the learned Rent Controller was right in giving the finding on the said issue in negative. His next contention was that ,neither subletting was proved nor addition and alteration in the premises causing damage or impairment to the utility of the property.
7. ' I have heard both the counsel. In regard to the first contention raised by Qazi Wali Muhammad the relevant clauses of the tenancy agreement are: "(2) That the tenancy shall commence from 1st day of April, 1980 and the rent shall be payable to the landlord in beginning of each calender month. Clause (3) is:
(3) The tenant is not entitled to make any addition or alteration in said shop without the prior written consent of the landlord and clause (4) puts restriction on the tenant in regard to subletting."
8. ' Although the respondent/tenant in the written statement admitted the tenancy agreement but took the plea that an amount of Rs,50,000 was paid as Pugri which was denied by the appellant/landlord. The landlord in his cross-examination admitted that tenancy was changed in the name of Hawa Bai in the year 1980 and the rent was enhanced from Rs,115 to Rs,150 per month.
9. However, he denied that neither he had demanded accepted Rs,1,50,000 from husband of Mst.
10. Hawa Bai nor Rs 50,000 from the tenant respondent at the time of change of tenancy. He denied that in the month of April, 1988 he demanded enhanced rent at the rate of Rs, 180 per month and when the same was refused he refuses to accept the rent. He also denied that he refused to accept the money order tendered for the month of April, 1982 and that he had any knowledge that the amount is being deposited in Court. He also denied the suggestion that in the year 1982 when the shop was rented out to the tenant/respondent he was aware that the business of jewellery will be run by the tenant through her agents but admitted that the tenant had filed a case for restoration of electricity in the Court of Senior Civil Judge, Karachi and the same was decided against him. He also admitted that F.R.A. No, 353 of 1984 filed by him was dismissed/withdrawn. He denied the suggestion that in another Rent Case bearing No, 5054 of 1982 he gave a statement that the tenant/respondent could run the shop in question through her agents only. As regard changes in the shop he admitted that the furniture was fixed in the disputed shop at the time when the shop was rented out to the tenant/respondent but according to him it was not fixed in the same position as it is now. According to him, though he gave a notice for inspection of the property by the architect but admitted that he had not obtained signatures of the tenant or her servant on the inspection note. However, the record indicates that copy of the notice as claimed by the appellant/tenant was not filed and the certificate of Patel Associates stated to be a licensed architects does not indicate as to on what date the visit was made and if the tenant/respondent or her servant were found in the shop. The certificate or any other document does not refer to any previous visits or inspection as such the certificate in regard to tampering on the side wall does not create any confidence to be accepted as an authentic piece of evidence.
11. ' On the other hand, the tenant/respondent in her statement as well as in the affidavit-in-evidence and cross-examination has stated that her husband had earlier paid Pugri of Rs,1,50,000 in regared to the said shop and when the tenancy changed an amount of Rs,50,000 was paid for the same.
12. She admitted that she is running her own business but through her agents and denied that she has made any subletting. She denied that she allowed Shafi, Abdul Qadir and Ibrahim to run their business in the disputed shop by way of subletting the same. She also denied the removal of the wall and pillars to widen the shop. She produced rent receipts which are dated 19-6-1982 and 27- 6-1982 for Rs,450 per month respectively. The other witness examined on behalf of the tenant/respondent also supported the statement of Mst. Hawa Bai.
13. ' Now coming back to the question of default the appelant/landlord himself has admitted that rent was paid till March, 1982 and-the default is for the period of 1-4-1982 to 31-8-1982. Clause (2) of the tenancy agreement clearly lays down that the rent of the shop was payable in the beginning of calender month. This according to Mr. Qazi Wali Muhammad, counsel for the appellant/landlord means that the rent should be paid by the 10th of every calender month in advance whereas the word 'advance" does not appear at all. Under the circumstances and relying on the case of Shezan Ltd. v. Abdul Ghaffar (1992 SCMR 2410), wherein it was held that "monthly rent is payable in advance means that it is payable before it is due i,e, on the last day of the preceding month or on the first day of the relevant month but since in the present case it is payable in the beginning of every calender month it can be interpreted as beginning of every calendar month when it has became due. The respondent/tenant in her written statement as well as in the affidavit-in-evidence claimed that the rent for the month of April onward was tendered to the appellant/landlord but when refused the same was sent by money order, dated 19-6-1982 and 27-6-1982. Section 15(2) (ii) provides as under:- "(I) .............................................................................
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:
(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 such agreement, within sixty days after the rent has become due for payment."
14. ' While section 10 is as under:-
(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) 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 situate.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller as the case may be, shall be produced and accepted in proof if the payment of the rent: ' Provided that nothing contained in the section shall apply in the cases pending before the Controller, on the commencement of this Ordinance. "
15. ' It has been laid down through various judgments of this Court and Supreme Court that even if tenancy agreement expires the terms shall remain in operation and the parties are bound by the said terms. Reliance can be placed on the case of Mrs. Zama Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190,), wherein a question arose: ' Whether on termination of an agreement of tenancy when the tenant remain in occupation as of right subject to liability under the Rent Law, the term of agreement became irrelevant for regulating the tenancy.
16. ' To answer the above question the Hon'ble Supreme Court 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 and observed that leaving aside theoretical possibilities all of them can be interpreted consistently on the following lines:-- ' ONE: Notwithstanding with 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 covenants of 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'.
17. ' THREE;...........................................................................
18. In the present case keeping in view clause (2) of the said tenancy agreement and the law, the rent should have been remitted within 15 days after the same become due but the postal receipts are dated 19-6-1982 and 27-6-1982 much beyond the period within which rent was due and definitely not according to the term of the tenancy agreement. However, keeping in view that the tenant never defaulted before and first tendered rent, to the landlord and after the refusal remitted it through money order it can be said that the delay was caused due to the obstacles placed by the landlord in tendering the rent. The tenant also' complied with the rent order passed by the Rent Controller and as such she cannot be regarded as wilful defaulter. Reliance can be placed on the case of Amir Ali and two others v. Jon & Company (1987 CLC (k) 442), wherein 'rent was offered by the tenant but was not accepted by Rent Collector of landlord and it was held that case of wilful default not proved against tenant and the Rent Controller was justified in exercising his discretion in favour of tenant in refusing to order his ejectment".
19. ' In the circumstances though I do not agree with the reasons given by the learned Rent Controller in the instant case but agree with the, finding given on this issue that the appellant is not a wilful defaulter. The two other issues are of subletting and alteration/addition causing damage to the property. Nowhere m the evidence it has been established that the tenant has sublet the premises.
20. The entire record clearly indicates that the landlord was aware of the fact that the tenant is running business through her agents/employees. She has not parted with the possession of the rented property not even partly to hold her responsible for subletting. So also is the case in regard to alteration and addition thus. Causing damage to the property and impairing its utility. Reliance can be placed on the case of Khalid Nassim and others v. Asma Yousaf (1993 CLC 127), wherein it was held that 'What transpires from the above discussion is that the ground of eviction available to a landlord under section 15(iii)(a) of the Sindh Rented Premisses Ordinance, 1979, namely, "handing over the possession of the premises' by the tenant to some other reason without his consent, would be available to him only when the tenant consciously and purposely puts another person into possession of the premises or allows him to retain possession thereof with the intention to divest himself thereof".
21. ' I have already observed that the certificates of Architect is not a reliable piece of evidence and there is nothing else on the record not to agree with the findings of the learned Controller on these two issues.
22. ' The upshot of the entire discussion is that appeal having no force is dismissed with no order as to costs.