' IRSHAD HASAN KHAN, C J.--This appeal with leave of the Court, is directed against the judgment dated 8-6-1999 passed by the High Court of Sindh at Karachi in First Rent Appeal No,31 of 1989.
2. The brief facts of the case and the question arising for consideration therefrom are succinctly stated in the leave granting order, which reads thus:-- ' "Petitioner assails the legality of the judgment of a learned single Judge of the High Court delivered on 8-6-1999; whereby, while accepting the rent appeal, filed by the respondent, set aside the order of the learned Rent Controller dated 5-12-1988, and consequently, accepted the application submitted by the respondent for ejectment of the petitioner from the disputed premises.
2. Factual background of the case is that respondent No,1 submitted an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (henceforth to be called as Ordinance) for eviction of the petitioner from the property being Commercial Plot No,16/17 in Block No,3, Central Commercial Area Karachi, Cooperative Housing. Societies on the sole ground of default in payment of rent for the period from 12-2-1985 till the date of filing of the petition. The learned Rent Controller held that lessee/petitioner had not committed wilful default and accordingly, dismissed the application. The learned Judge in the High Court in appeal reversed the order of the Rent Controller holding that the default in payment of rent has been proved from 11-2-1986, therefore, passed the ejectment order."
3. The learned counsel appearing for the petitioner referred to clause (c) of the lease deed appearing at page 51 of the paper book and argued that the lease deed provides special mode of payment and that the lessee is entitled to a notice of demand if he has defaulted in payment of rent for 60 days and he can be held defaulter only if payment is not made within 30 days from the written demand. It was stressed that no notice of demand had been given. He explained that in view of the terms of the lease deed the condition laid therein would have preference irrespective of the Ordinance. He supported his contention by relying on Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38. The learned counsel was of A the view that the High Court has legally erred in upsetting the legal and well-reasoned order of the Rent Controller. On the other hand that learned counsel appearing for the caveator pointed out that the submissions made by the learned counsel for the petitioner are misconceived and are not relevant as the present case is covered by section 18 of the Ordinance. He referred to Muhammad Yousaf v. Abdullah PLD 1980 SC 298 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, for the proposition that the provision of law would prevail over the stipulations in the lease deed.
4. We grant leave to consider in depth the submissions of both the learned counsel and to determine if in view of the submissions of the learned counsel for the petitioner the High Court has erred in holding that the petitioner has defaulted in payment of rent and in reversing the judgment of the Rent Controller. The ejectment application in this case was filed in 1986 and it is sufficiently an old matter, therefore, we direct that the appeal should be fixed for hearing on 27-10-1999. The interim order dated 7-9-1999, in respect of deposit of monthly rent and status quo regarding possession would remain intact till the disposal of the appeal."
3. Raja Haq Nawaz, learned A.S.C. For the appellant-company vehemently argued that the learned Judge in Chambers has erred in setting aside the well-reasoned order of the Rent Controller to the effect that the appellant had been bona fide and honestly tendering rent to the respondent and that the alleged default, if any, was of technical nature, which could not be treated as 'wilful' in view of the law laid down by this Court in Inayat Ullah v. Zahoor-ud-Din 1987 SCMR 1313. He elaborated that there can be no default if the conduct of the landlord tantamounts to creating/engineering a ground for ejectment. He further contended that during the period of thirty years except the period for which the landlord created ground of default, not a single default has been committed. He also referred to Younus v. Pakistan 'State Oil Co. Ltd. PLD 1988 Karachi 33E, wherein at page 346 of the report, it was observed as under: ' "... ...Reliance is also placed on the case of Inayatullah v. Zahooruddin 1987 SCMR 1313 in which it is held that default was not wilful when record showed that landlord deliberately created difficulties in the way of tenants by not accepting the rent in the hope that some omission or slip on the part of tenants may enable him to carve out the ground for their eviction. It was further held that conduct of tenants indicated no elements of negligence on their part. On refusal of receiving the rent tenants reasonably adopted alternate prescribed mode of tendering the rent by way of depositing the same with the Rent Controller."
' To the same effect are the cases reported as Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Noor Muhammad v. Mehdi PLD 1991 SC 711 and Hasamul Haque Agha v. Mrs. Saeeda Begum 1991 CLC 1121, as also two unreported judgments of this Court passed in Civil Petition No,97-K of 1999 and Civil Petition No,477-K of 1999.
4. Attention of the Court was also drawn to the copies of receipts and registered envelopes at pages 99-102 (Exhs. G, H, I & J), to contend that neither the appellant-Company was in default nor any default was earlier committed during the lifetime of the previous landlady/mother of respondent No,1 herein. He also relied on the evidence of Pirjee Muhammad Naqi who, in paragraph No,6 of his affidavit, deposed: ' ".... ....I entitled to rent of the demised commercial plot as from 12-2-1985. Accordingly, by letter dated 15-2-1986 I informed the opponent company of the change of its ownership and I also called upon it to pay rent thereof to me as from 12-2-1985. My registered letter dated 15-2-1986, despatched under registered No,19 dated 16-2-1986 must have been received by the opponent company next day or on the day following it. As such after receiving my letter dated 15-2-1986 by the opponent company it had no occasion of sending rent for the month of March, 1986 to the account of my deceased mother, which according to it, is said to have despatched on 3-3-1986 and in one and the same breath also claims to be unaware of its fate."
' Paragraph No,7 of the affidavit of Pirjee reads thus:-- "7. That it (is) an admitted position that I never instructed the opponent company to send the rent by cheque and that too by post. As such the opponent company was/is bound to pay/tender the rent of the demised premises to me in cash. I further say that so far I have never received any money order or even cheque from the opponent company towards rent or anything else eversince 15-2-1986. As such the contention of the opponent company that it has been sending the rent to me through cheques, even though cheques have been allegedly refused to be accepted by me and some of them are even untraceable, while none was ever offered to me by the opponent company or even by the postman, is ex facie false. From the Court record it will also be established that nothing has been so far deposited by the opponent company towards my rent dues. From the above facts it is proven beyond any doubt that the opponent company has wilfully defaulted in the payment of rent to me at least from March, 1986 onwards. In view of the above facts and documents relied upon by me heretofore, all contrary contentions raised by the opponent company in their written statement stand belied."
' His precise plea was that appellant-company was not sure about the very nature of the default committed by it, therefore, the Rent Controller was quite right in ruling that default, if committed, was only of technical nature.
5. Raja Haq Nawaz argued that this is a contractual tenancy and the lease deed (at pages 46 onwards of Paper Book Part I) is a registered document; was registered firstly for ten years renewable for two further terms, i.e, for a total period of 30 years; was executed on 11-7-1970; was registered on 28-5-1971 and took effect from 11-7-1970, as per clause (1) thereof. The rent was fixed at Rs,3,000 payable in advance for the first three years. The first owner was Mst. Aisha Bi. He refered to clause (f) of paragraph 3 of the Lease Deed dated 28-5-1971, which is to the following effect: "3(t). That the Lessor will on the written request of the Company made two calendar months before the expiry of the term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants on the part of the Company hereinbefore contained grant to the Company a lease of the said Land for two further terms of 10 years each from the expiration of the said term at a monthly rent of Rs,3,500 per month containing the like covenants and provisos as are herein contained except that no advance rental shall be payable."
' Reference was also made to paragraph 4. "Provided always and it is mutually agreed as follows: "(d) If any rent shall be 60 days in arrears (whether legally demanded or not) or if the Company shall omit to perform or observe covenant or condition on the part of the Company herein contained and shall continue for 30 days after notice thereof to the Company in writing, the Lessor may re-enter forthwith upon the demised Land or upon any part thereof and the lease shall thereupon determine but without prejudice to any claim which either of the parties hereto may have against the other in respect of any breach, non-performance of any of the covenants and conditions herein contained."
' His argument was that section 15(2)(i) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) recognizes the agreement between the parties; the registered lease- deed will prevail over the Statute unless any term thereof is repugnant to the rent laws and that to the extent of repugnancy, the rent deed is not enforceable. According to him, the lease was valid up to 30-6-2000 and the appellant exercised his option twice. In this connection reference was made to page 120 of the Paper Book Part I to the following effect: ' "Accordingly, therefore, the Company hereby exercises its second option to renew the said lease for further period of ten years with effect from 11-7-1990 to 10-7-2000 at the same rent of Rs,3,500 p.m. As stipulated in the aforesaid Lease Deed."
' He also referred to Mrs. Zehra Begum (supra) wherein it was held: ' "The historical background of Rent Laws in Sindh and Karachi is that provisions of Contract Act and Transfer of Property Act apply with full force. The earlier rent laws like the Sindh Rent Restriction Act, 1947 (Act X of 1947) or of 1952 (Act XIX of 1952) and Karachi Rent Restriction Act, 1953 (Act VIII of 1953) regulated the 'supply of accommodation whether residential or non-residential, furnished or unfurnished' and were designed 'in particular to provide for controlling the rents chargeable for such supply of accommodation and for preventing in certain cases eviction from the accommodation supplied.' In 1959 with the West Pakistan Urban Rent Restriction Ordinance the object slightly underwent a change, inasmuch as supply of accommodation no longer remained the object of law. Its purpose was of restricting in public interest 'the increase of rent of certain premises within the limits of the urban areas and the eviction of tenants therefrom.' Unlike its predecessors, the Ordinance has as it object 'making of effective provisions for regulation of relations between landlords and tenants' and 'to protect their interests in respect of rented premises within urban areas'. Section 5 enjoins the tenancy agreements to be in writing, and to be authenticated either by registration of the deed or by its attestation by the signature and seal of the designated authorities. The validity of tenancy agreements has been recognized by section 6 and its expiry or its ceasing to be valid, made a ground independently of every other ground, sufficient to obtain eviction of the tenant. Section 7 authorises the landlord to charge the mutually agreed rent till such time as fair rent is not got fixed from the Controller on an application by either party. The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law, (for arguments sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration.
' The bona fide requirement of the premises by the landlord for 'his own occupation or use or for the occupation or use of his spouse or any of his children' is, to begin with, a need personal to him. He has only to place certain facts before the Controller to make the objective assessment, and review in appeal, of his need and good faith possible. When an owner vacates the only house possessed by him, gets it demolished, lets out the plot for commercial exploitation on best market rent on a long lease giving up his right to recover possession if the rent was paid and the covenants observed be cannot on the ground of same need then existing or one which could then be visualized get the tenant evicted. It would not be a requirement justifying eviction. It would not be in good faith. It would be in repudiation of contract."
' Reliance was also placed on Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 wherein this Court at page 1189 of the report observed: ' "Whereas in the above case of Mrs. Zarina Khawaja, this Court has held that the terms of the expired tenancy agreement will continue to apply except which are repugnant to the Rent Laws or general laws and that the general laws which are not inconsistent with the Rent Laws continued to apply."
' At page 1192 of the above report, it was further observed: ' . However, we may clarify that the ratio of the above judgment of this Court in the case of Mst.
Zehra Begum still holds ground and that the same is distinguishable for the reasons recorded hereinabove in para. (5)."
' To the same effect are the following cases as referred to by the learned counsel for the appellant:
(i) Mirza Jawad Baig v. Pakistan State Oil Co. Ltd. 1985 MLD 536;
(ii) Pakistan Burmah Shell Ltd. v. Khalil Ahmad and another 1988 MLD 210;
(iii) Muhammad Yousuf v. Abdullah PLD 1980 SC 298;
(iv) Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190;
6. The learned counsel relied on Younus and 9 others v. Pakistan State Oil Co. Ltd. PLD 1988 Karachi 338 to contend that payment of rent by cheque is a valid tender as between the parties but not a valid tender in connection with compliance of 'tentative rent order under the West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959). He placed reliance on Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 to contend that the law does not require the production of the postal acknowledgement before the' Court as, in fact, it is very seldom that such acknowledgement reaches the sender and it is a matter of every day occurrence.
7. As to the question of default, the learned counsel for the appellant referred to the case of Abdul Aziz v. Abdul Ghani 1986 SCMR 1857 wherein it was held, as follows: "3. We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by Mst. Hamida Khanum, wife of the petitioner, the respondent started depositing the rent in the .Court of the concerned Rent Controller and thus, under the circumstances it cannot be said that the respondent is a wilful defaulter."
' To the same effect are the cases of Moizur Rehman v. Mrs. Fakhra Javed ' PLD 1991 Karachi 452 and Muhammad Siddiq v. Abdul Hameed PLD 1976 Karachi 696.
8. Mr. Abdul Hafeez Lakho, learned Senior Advocate Supreme Court appearing on behalf of the Intervenor submitted that the agreement provided that the lessee-PSO will be at liberty to sublet the premises or appoint dealers or licensees and that generally all -the petroleum companies appoint their dealers and licensees themselves. He argued that when the respondent-landlord permits the lessee to sublet the premises, he/she creates a right in the sub-lessee also, in that, where a sub-lessee is operating the petrol-pump and is an affected person if eviction is ordered, he is also to be given a notice for the simple reasons that law does not countenance such an order against persons similarly placed as his client, therefore, it is contended, it was necessary for the parties to inform the Court that there were sub-lessees involved in the cause before it who should be brought on record/impleaded as party. He next submitted that as the sub-lessees also had the requisite locus standi under the agreement, therefore, they should have also been informed and that almost 60/70 persons are working at the Petrol Pump and, in the event of ejectment, all of them will become jobless. He concluded his submissions by arguing that the respondent-landlord accepted the cheques of PSO for the period commencing with service of notice by him and ending with filing of eviction petition.
9. Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing on behalf of respondent-landlord vehemently argued that there are concurrent findings of the Rent Controller and the High Court on two points
(i) that the lease in question could not be renewed after the expiry of first ten years with the result that the remedy of the other side lay either in resorting to arbitration or in filing a suit for specific performance of the contract and
(ii) that there was default in the payment of rent after the receipt of notice under section 18 of the Ordinance. He submitted that the Rent Controller was in error in holding that default was technical and that the High Court came to the right conclusion that it was not technical: He referred to Reckitt & Colman of Pakistan Ltd. v. Saifuddin G. Lotia 2000 SCMR 1924; to contend that in the facts and circumstances of the case default cannot be deemed to be technical in nature. He further contended that the case of Mrs. Zehra Begum (supra) is distinguishable in that the question of personal need/requirement has been held to be a privilege which can be waived but such treatment cannot be meted out to defaulter. He referred to the following passages from the case of Reckitt & Colman of Pakistan Ltd. (supra): "... ....Tenant having failed to honour his commitment and no cogent explanation having been furnished inferring the default was not wilful, such default could not be treated as technical default.
' ... ...Most liberal interpretation that could be given to the word 'technical default' covered only such defaults which were unavoidable or were due to cause for which the defaulter was in no way responsible."
' He submitted that in these circumstances default cannot be deemed to be technical, therefore, the High Court was justified in treating it as a default and ordering ejectment accordingly.
10. Syed Sharifuddin Pirzada, next contended that the case of Mrs. Zehra Begum (supra) is clearly distinguishable, in that, in the precedent case the lease was subsisting, as the same was renewed and that the most important fact therein was that agreement was entered into when the then Rent Laws contained the provisions that during the currency of tenancy agreement, ejectment will not be sought on the ground of personal need/requirement. He argued that so far as personal need/requirement of a landlord is concerned, that has been held by this Court to be a privilege which can be waived. So far as the default is concerned, a five-member Bench of this Court in Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32 has held that default is a serious matter because rent is essential condition of lease and if it abridges the right of the landlord then there can be no equity or waiver and ejectment is to follow. Similar view has been taken in Sheezan Ltd. v. Abdul Ghaffar 1992 SCMR 2400 and Khalid Ghouri v. Mrs. Tazeen Chaudhry 2000 SCMR 1209. He submitted that if promptness in payment of rent with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protection, it cannot be relaxed or diluted on the grounds of economic well-being, fairness or in the name of justice as it is a case of default directly because it abridges the right of the landlord to some extent, therefore, it must be protected. He submitted that there are three kinds of renewals of agreements which are discernible from the causes leading to litigation betwixt the parties. First kind is that which provides for automatic renewal. Second kind of renewal is that which is mutually agreed between the executants of the agreement. The third kind of renewal is the one which is provided in the present case requiring that a notice is given first by the tenant and, thereafter, the landlord is to execute the lease. If the latter fails/does not execute the lease, remedy is open/available to the landlord even if he may have or not a justification in that behalf. He submitted that on 31st March, 1980, request was made for renewal of the lease agreement by the appellant-company, which was replied to by the respondent-landlord on 16-4- 1980 that: "We have been waiting for the expiry of lease as the subject land is required by us for reconstruction purposes. Therefore, the question of renewal of lease for any further period does not arise." Notice of change of ownership was given on 15-2-1986, which was admittedly received by the appellant-company on 18-2-1986 and that, so far as the cheque dated 24-2-1986 is concerned, the same was sent by the appellant-Company on 3rd March, 1986. He then read out section 18 of the Ordinance, which reads thus: "18. Change in ownership.--Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimations should, in normal course, have reached the tenant."
' He also read out the following excerpts from pages 115-116 of the Paper Book Part I: "... ...The cheques amounting to Rs,3,500 used to come from P.S.O. Co. Ltd. The last deposit of 3,500 is on 11-2-1986. The amount deposited in A/C CD-1600-31 was withdrawn through succession certificate. Muhammad Naqi withdrew balance amount from A/c CD-1600-31 through succession certificate. I produce its photo copy alongwith forwarding letter as Exhs.B/2 and B/3 respectively.
We issued pay slip to 'Muhammad Naqi on 20-10-1986. 'The bank has not received cheque through registered post which according to you is sent on 3-3-1986 being cheque No,F2813, dated 24-2- 1986 for Rs,3,500 drawn on CBL Site Branch Karachi. I cannot say whether bank has received the registered letter containing cheque but since the amount is not credited, therefore, I as-per record say that letter containing above cheque has not been received." Cross to Advocate for applicant.
' We have not received cheque dated 24-2-1986 being No,F-2813 through any mode as per record.
Rs,25,000 are still lying as balance in A/C No,1600-31."
' He contended that firstly, the cheque was not received and secondly, appellant's own case is that the said cheque was still sent in the name of Mst. Aisha Bai whereas a cheque in the name of a dead person is not a valid tender at all, therefore, it is a clear case of default in the payment of rent and a violation of section 18 of the Ordinance. He referred to Fazal Elahi v. Tanveer Hussain 1994 MLD 1626, wherein it was held as under:- ' "As regards rent default, it was correct that the rent was deposited in the office of Rent Controller in the name of Sh. Nazir Hussain since deceased. Appellants were cognizant of his death long before. His death took place during the pendency of first appeal instituted by him against the appellants. His heirs were substituted for him on record of the aforesaid appeal and they prosecuted it further. Where was then any legal justification for the appellants to still deposit the rent to the credit of the deceased. Right course for the appellants was to either tender or pay the due rent to his successors or deposit it in their names. The object could be no other but to cause inconvenience to the persons entitled to receive rent. Obviously, the deceased could not receive the deposited rent and the appellants were, therefore, not justified to deposit the rent in his name.
Appellants also knew about the persons entitled to receive rent from them. Yet, they bypassed them and preferred to deposit it in the name of their predecessor-in-interest They could be safely found rent-defaulters and wilful also."
' He also referred to the cases reported as Haji Usman Bhai v. Syed Ali Imam Zaidi 1994 SCMR 1918; Mst. Zubaida Begum and 3 others v. Muhammad Muslim through Legal Heirs PLD 1966 Karachi 357 and Feroz Khan v. Syed Zoha 1996 CLC 949 in support of the case of his clients that appellant- Company is wilful defaulter.
11. Syed Sharifuddin Pirzada also submitted that an expired lease-deed cannot be relied upon and, in any case, section 18 of the Ordinance does not make reference to any lease or any agreement between the parties in it, therefore, the question of conflict between the alleged contents of lease deed dated 28-5-1971 and the 'rent laws' simply does not arise. Reliance was placed on Muhammad Yousaf v. Abdullah PLD 1980 SC 298, wherein it has been observed thus: ' " Under this clause, a tenant has to pay the rent due from him 'within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within sixty days from the period for which the rent is payable.' The words 'the agreement of tenancy' mean an agreement which is in force, and not an agreement which has expired and is dead. Therefore, in the instant case, when the respondent filed his eviction application on the 9th of May, 1970, the appellant was in default in the payment of rent for the month of December, 1969, and for the months of January and February, 1970. The rent thus due from him was Rs,600. But, as against this, the respondent had failed to return to the appellant the 'security deposit' of Rs,1,000 despite the expiry of the lease agreement. The respondent was no doubt entitled to deduct the electricity charges before returning this amount, but even after deducting these charges, the amount lying with him far exceeded Rs,600."
12. Syed Sharifuddin Pirzada submitted that if any person is 'inducted' into the tenanted premises by a tenant then such person is a mere licensee and has to quit the premises in question alongwith the tenant, in case of latter's ejectment therefrom . In support of his plea he placed reliance on Khawaja Muhammad Yaqub Khan v. Sh. Abdur Rahim 1968 SCMR 734 and also referred to Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638 wherein this Court held: "6 It is well-settled that an .Order of ejectment can be executed against a person having come into possession Of subject property through the tenant. Be that as it may be the respondent having obtained an order of eviction from competent forum was not required to seek the relief of possession afresh in the suit filed by him on the plea that the petitioner was in occupation of the same house through the original tenant."
' He concluded his arguments by submitting that similar view was taken in Messrs Pakistan Burmah Shell Ltd. v. Khalil Ahmad PLD 1996 Karachi 467.
13. We have perused the case law cited at the Bar and the material available on record. The ratio laid down in the cases cited by Raja Haq Nawaz loses significance in the context of the controversy raised herein, in that the sole question which arises for consideration is whether the lessee/appellant-company had committed default for one month for the period from 12-2-1985 till the date of filing of ejectment petition. The learned Rent Controller, vide judgment dated 5th December, 1988 took the view that the default committed by the appellant-Company was technical in nature, which does not fall within the purview of 'wilful default' within the contemplation of clause (ii) of subsection (2) of section 15 of the Ordinance. The rent application was accordingly dismissed. The learned Judge in Chambers of the High Court reversed the judgment of the Rent Controller by recording a definite finding that default in the payment of rent stood proved from 11- 2-1986 and was not technical in nature. Syed Sharifuddin Pirzada was right in contending that in the facts and circumstances of the case, the High Court was justified in treating it as a wilful default and not a technical default. The case of Rackett & Colman (supra) cited by him supports his contention.
14. Syed Sharifuddin Pirzada is also right in contending that the case of Zehra Begum (supra) was distinguishable and the finding recorded by this Court in the cases of Alima Ahmed, Shezan Ltd., and Khalid Ghouri (supra) that default is a serious matter because it abridges the right of the landlord and to some extent it must be protected, is attracted here as well. The cases of Suleman, Haji Usman Bhai, Feroz Khan and Muhammad Yousaf (supra) are also instructive on the point. Also refer Pakistan Food Manufacturers v. Sadiq Ishaque and others 1992 CLC 482; Munawar Hassan v.
Badiul Hasan 1992 CLC 2495; Kala Khan through Legal Heirs v. Anjuman Musalmananne Mashriaqui Punjab, Karachi 1993 CLC 250. wherein it was held by the High Courts that in case a landlord refuses to accept rent, before a tenant could deposit rent in a Miscellaneous Rent case, it is mandatory for the tenant first to remit the rent through postal money order and if this is not done, deposit of rent in a Miscellaneous Rent case would not absolve the tenant from being a defaulter for the concerned period. The same view as taken by a two-member Bench of his Court in unreported judgment in Abdul Rasheed v. Mst. Shah Jahan Begum Civil Appeal No, 1234 of 1999, decided on 28- 2-2001 wherein one of us (Irshad Hasan Khan, C.J.) as authored the judgment. It is true that where the default is not deliberate or contumacious and is purely technical in nature and no mala fide has been attributed to the tenant, ejectment in such cases on ground of default is not warranted.
Here the default is proved to have been wilful, deliberate, contumacious and not technical in nature.
15. There appears to be force in the submissions of Syed Sharifuddin Pirzada noted in the preceding paragraphs, which are precise, lucid, cogent and self-explanatory and go a long way in rebutting the pleas raised by Raja Haq Nawaz. We are entirely in agreement with Syed Sharifuddin Pirzada.
Suffice it to say that linking of the exemption of a tenant under section 18 of the Ordinance with the above clause (ii) of subsection (2) of section 15 of the Ordinance makes a complete whole for not transgressing the statutory provision regarding default in that anything not done by the concerned party to absolve itself of the responsibility under the statute will surely lead to the specified results, i.e, making of an order of ejectment on the ground of default. It is not the case of the appellant- Company that they made the payment of the rental for the month of March, 1986 within 30 days of the receipt of letter dated 19-11-1986 from respondent No,1/Pirjee Muhammad Naqi. The learned Judge in Chambers was within his jurisdiction in recording a finding of fact that the material available on record in the case did point out that default on the part of, the appellant-Company was wilful and was wrongly dubbed as technical by the Rent Controller.
16. Mr: Murtaza Hussain Senior Legal Executive of the appellant-Company, himself stated during cross-examination: '. " It is correct the lease agreement was for 10 years only but with the two options of ten years each.
It is correct that no lease for option was executed. Mst. Aisha Bi expired but we have no intimation. It is correct Annexure 'E' to my affidavit are record intimation about death. It is a fact that no rents were paid to the legal heirs after intimation nor in the Court "
17. We are also of the view that the findings recorded by the High Court are duly supported by the evidence on record and in the absence of any misreading and/or failure to consider the same, the impugned judgment does not warrant interference in these proceedings. On this ground alone the appeal is liable to be dismissed.
18. As regards the plea on behalf of the Intervenors raised by Mr. Abdul Hafeez Lakho, we suffice by observing that they have to sail and sink with the appellant company as they have got no independent legal right to stick to the position of their own creation without any permission from the landlords to overstep the lawful results of the litigation between the landlords and the tenants under the Ordinance. Presently, they have no right whatsoever to ask for any relief in these proceedings from this Court.
19. It is common ground between the parties that although even the overall period of 30 years in relation to the contractual obligations between the parties has come to an end, yet the appellant- Company will have to make arrangements for shifting their installations etc. From the site in question, therefore, we grant them six months' time to vacate the premises. During this period, the appellant-Company shall continue making payment of rental as heretofore for use and occupation thereof. It has been made clear that in the event of any default on the part of the appellant-Company, they shall be evicted summarily and with police help, if necessary.
20. With the above observations, the appeal stands dismissed with no order as to costs.