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Letters Patent Appeal No. 2 of 1970, decided on 7th June 1972.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Waiver‑‑Tenancy‑Arrears of rent deposited by occupant found to be mere licensee and not tenant‑Withdrawal of amount by landlord during pendency of appeal with permission of Rent Controller‑Mere acceptance of rent, held, could not lead to conti nuation of tenancy or to any waiver on part of landlord or confer ment of any right on occupant‑Landlord entitled to withdraw rent as compensation for use and occupation.

The appellant was never the tenant of the respondent and, therefore, by mere acceptance of rent there could be no question of the continuation of the tenancy. He was a mere licensee and be voluntarily deposited the rent. The respondent was entitled to withdraw the rent not only as compensation for use and occupation but even under section 13, clause (8) the with drawal of the rent is permitted if the Rent Controller allows the withdrawal. In the present case, when the rents were deposited the respondent had made two applications for the withdrawal of the amount and ft was permitted. There could be no question of any waiver or conferment of any right of tenancy upon the

appellant. [p. 437]A

Clarke v. Grant and another (1949) 1 A E R 7 68 and M. Fazil Zahir v. Begum Jan P L D 1966 Lah. 53 rel.

S. H. Jafri for Appellant.

I. H. B. Hanfi and Munawar Ahmad for Respondent.

Date of hearing: 7th June 1972.

GHULAM RASOOL K. SHAIKH, J.‑This is a certificated appeal under clause 10 of the Letters Patent against the order passed by the learned Single Judge thereby he dismissed the appeal filed by the appellant against the order passed by the District Judge, Quetta The respondent had purchased the property on 7‑3‑66 from Wali Mohd. and Mohd. Saeed who were transferee of the

same from the Settlement Department.

On 21st October 1966 the respondent filed an eviction appli cation under section 13 of the West Pakistan Urban Rent Restriction Ordinance against one Meharban who was said to be his tenant on the ground of non‑payment of rent and subletting. The application was resisted by Meharban. However, the learned Rent Controller passed an order of ejectment. Meharban, aggrieved by that order filed an appeal and it was dismissed by the learned District Judge, Quetta.

On 28th November 1968, the respondent filed an execution application against Meharban in the Court of Senior Civil Judge, Quetta, who issued warrant for the delivery of p,)ssession. On 5th March 1969 the appellant made an application to the learned Senior Civil Judge and Rent Controller seeking permission to deposit the arrears of rent of the portion of the shop which was alleged to be in his occupation on the ground that the respondent had refused to receive the rent from him. This application was resisted by the respondent an the ground that the appellant was a mere licensee and he was not prepared to accept him as his tenant. On 28th June 1969 another person Ghulam Mohd. made an oral complaint that the respondent was wrongfully trying to dispossess them in the execution of the decree which was not

binding upon them. The executing Court recorded the evidence and entertained the view that the order of eviction passed by the Controller was not binding upon the appellant and Ghulam Mohd.

as they were in occupation of the respective portions of the shop and they were entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. He, however, allowed the appellant to deposit the rent in Court.

The respondent, aggrieved by the aforesaid order filed an appeal in the District Court. The appeal was allowed and it was held that the order of eviction passed against Meharban was binding upon the appellant as well as Ghulam Mohd. Against this order the appellant alone filed a second appeal in this Court.

One of the points urged before the learned Single Judge was that during the pendency of the appeal the respondent had withdrawn the rent which had been deposited by the appellant and, therefore, by his conduct he had created a tenancy in favour of the appellant. This plea was rejected. The other grounds which were taken before him were also rejected and appeal was dismissed. An appli cation was made for the grant of certificate to file appeal, and this was granted only with regard to the plea that on account of the withdrawal of the rent by the respondent a tenancy was created in favour of the appellant. The present appal has been filed alleging that ground alone.

It was urged by the learned counsel for the appellant that since the respondent had withdrawn the rent deposited by the appellant in the Court of the Rent Controller this by itself created tenancy in favor of the appellant. The learned Single Judge rejected this contention for good reasons and we also entertain the same view. The learned Single Judge had quoted the follow‑

ing observation from an English authority in the case of Clarke

v. Grant and another (1)

"Therefore, the tenancy having been brought to an end by a

notice to quit, a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties intended that there should be new tenancy."

In the first place, the appellant was never the tenant of the respondent and, therefore, by mere acceptance of rent there could A ,be no question of the continuation of the tenancy. He was a

(1) (1949)1 A E R 768

mere licensee and he voluntarily deposited the rent. The respon dent was entitled to withdraw the rent not only as compensatio for use and occupation but even under section 13, clause (8) the withdrawal of the rent is permitted if the Rent Controller allows the withdrawal. In the present case, when the rents were deposit ed the respondent had made two applications for the withdrawal of the amount and it was permitted. There could be no question of any waiver or conferment of any right of tenancy upon th

appellant. The learned counsel for the appellant placed before us certified copies of the applications made by the respondent for the withdrawal of the amount. These applications even do not implledly suggest that the respondent intended to confer any tenancy right upon the appella :t. In this connection I would also like to refer to the case of M. Fazil Zahir v. Begum Jan (lj wherein it was observed that the liability to ejectment arises on account of the commission of default in payment of rent, and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts the rent for a period, subsequent to that for which default had taken place, on a date subequent to the filing of his application for the tenant's eviction.

Thus there is no force in the plea taken by the appellant. The appeal is, therefore, dismissed with costs.

S. A. H. Appeal dismissed.

(1) P L D 1966 Lah. 53

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