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Civil Petition No. 181 of 1979, beard on .8th April, .1979.

(On appeal from the judgment and order dated 28‑2‑1979 of the Lahore High

Court at Lahore in S. A. O. No. 808 of 1976).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

S. 13(2)(i)‑Words "Rent due"‑Meaning.‑‑[Words and phrases].

For proper interpretation the term rent due' has got to be interpreted in the context of clause (i) of subsection (2) of section 13 ‑ of the Ordinance read as a whole. It expressly visualises payment or tender of rent due within fifteen days after expiry of time fixed in agreement of tenancy or in absence of any such agreement within sixty. days from period for. which rent is payable. It expressly recognises agreement of tenancy, if any, between tenant and landlord which is respected. In it in matter of payment or tender of rent emphasis is laid on and prominence is attached to the time fixed for payment of rent in agreement of tenancy with landlord. So agreement, if any; has got to prevail. On a plain meaning time fixed in agreement for payment of rent might as well be in advance.

Muhammad Ashraf v. Muhammad Sharif and 3 others P L 13 1971‑ Lah. 610 and Muhammad Alimullah v. Zia‑ul‑Islam P L D 1973 Kar. 56 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑ S. 13(2)(i)‑Rent due‑May be agreed upon. to be paid in advance but to be paid within period of grace.

A period of grace has been prescribed for payment of rent by tenant to discharge his obligation. He must pay or tender rent within fifteen days after expiry of time fixed in agreement' of tenancy or in absence of any such agreement within sixty days from period for which rent is payable'. This distinction in phraseology employed between time fixed in agreement for payment and period for which rent is payable is quite significant and lends support to the view that the time specified for payment of rent in agreement might as well be in advance.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑ S. 13.(2)(i)‑Words "rent due"‑Meaning and scope‑Whether or not payment of rent fallen due under agreement‑To be ascertained with reference to its own‑A fortiori rent due in context to mean rent due under agreement of tenancy if any, including due under any stipu lation for advance payment of rent‑Rent paid in advance, held, does not lose its character as rent and fact of its being payable in advance in terms of agreement does not mean its being not due and having not accrued.‑[Words and phrases].

Rangayya Apper Raw v. Bobba Seriramulu and others (1904) 27 Mad. 143;‑ Iltaf Hussain v. Talib Hussain P L D 1977 T ah. 110 and Muhammad Ashraf v. Muhammad Anwar P L D 1975 Pesh. 254 distinguished.

S. M. Zafar, Senior Advocate Supreme Court instructed by S. Inayat Hussain Shah, Advocate‑on‑Record for Petitioner.

Mian Nisar Ahmad, Advocate Supreme Court and M. Z. Khalil, Advocate‑on‑Record for Respondent.

Date of hearing: 8th April, 1979.

‑This is a petition for special leave from the judgment dated 28th of February 1979, delivered by the learned Chief Justice of the Lahore High Court at Lahore, whereby, in accepting the appeal of the respondent herein, he restored the order passed by the Rent Controller in directing the ejectment of the present petitioner from the premises in dispute.

The relevant facts in brief are these. On the 21st of January, 1973, the petitioner took on lease from the respondent a portion of Bungalow No. 95‑C‑II, Gulberg III, Lahore; for a period of two years, on a rental of Rs. 1,100 per mensem payable in advance in two six monthly instalments due on the 20th of January; and 20th of July each year. After the expiry of the two years of the lease, on the 12th of May, 1975, the respondent brought an ejectment application against the petitioner, inter alia, on the ground that he had failed to pay the rent due to her from January, 1975. The petitioner admitted the tenancy but denied the allegation that he was a defaulter liable to ejectment from the premises.

The respondent‑landlady in her evidence deposed that the petitioner was a defaulter in the payment of the rent due to her. He failed to pay in time the instalment due from him in June, 1974, until October, 1974, and was in default in the, payment of the rent from January, 1975. In rebuttal the petitioner did not produce any evidence in spite of the adjourn ments allowed to him. He however, appeared as his own witness to deny that he was a defaulter in the payment of any rent due from him.

On the basis of the evidence on the record the learned Rent Controller Lahore held that the petitioner was a defaulter in the payment of the monthly rent to the respondent for the months of January and February, 1975, and was therefore, liable to ejectment. But the order was set aside on appeal of the petitioner accepted by the Additional District Judge, Lahore.

However, the respondent succeeded on further appeal which was accepted by the learned Chief Justice of the High Court who restored the order passed by the Rent Controller in directing the ejectment of the petitioner from the premises.

The dispute in this case before us is confined within a narrow scope. According to respondent the petitioner has failed to pay or tender the rent to her in respect of the premises from January, 1975, after the expiry of the initial period of two years of the lease. The allegation was denied by the petitioner in his evidence and he stated that he had already paid the rent claimed by the respondent. According to him he had paid the rent to her in the manner stated below:

(i) Rent due for one month from 26‑1‑1975 to 25‑2‑1975 was orally paid to her in cash;

(ii) Afterwards on 31‑3‑1975 he remitted the rent by money order (Exh. R. 4 and R. 4/1) for one month from 26‑2‑1975 to 25‑3‑1975, which she refused to receive;

(iii) Thereafter in pursuance to a compromise arrived at between parties he orally made the payment of rent in cash to her for the period of six months from January, 1975, to June, 1975. In proof of this payment he relied on a letter Exh. R. 2 from the respondent addressed to his wife promising to give a receipt.

In this connection the learned Rent Controller observed that in case the petitioner had already paid the rent to the respondent for the period from 26‑1‑1975 to 25‑2‑1975 before the sending of the money orders; then there was no reason for him to have allegedly paid the rent for the entire period of six months from January, 1975, to June, 1975. The learned Rent Controller in arriving at the conclusion that no rent for the period from 26‑1‑1975 to 25‑2‑1975 was at all paid by the petitioner, was further fortified by the fact that on all occasions, except for one, the tenant had been paying the rent by cheques and not in cash. As such there was hardly any reason for him to have paid this rent in cash.

In dealing with the aforementioned undated letter Exh. R.2, the learned Rent Controller observed that, according to the respondent, it was relatable to period at the commencement of the tenancy when the payment of rent was made in cash. In support of her stand she produced a statement (Exh. P.3) from the Bank showing that rent from July, 1973, to October, 1974, was paid to her by cheque. Even otherwise, it was not believable that after the relationship between the parties had become strained, after the petitioner had remitted the rent by money orders (Exhs. R. 4 to R. 4/1) to the respondent which she had refused to accept, the petitioner should have orally made the payment of the rent for a period of six months from January, 1975 to June. 1975, without any receipt.

The learned Rent Controller pointed out that petitioner in his reply to the ejectment application has alleged that the respondent had received the advance rent for six months from January, 1975. He further submitted that respondent did not issue any receipt from January, 1975, and on this he remitted the rent to her by money order for the period from 26‑2‑1975 to 28‑3‑1975. But contrary to this in his evidence he deposed that the payment of the rent for the six months, was made only after 31‑3‑1975 after the money orders had been returned unpaid.

In conclusion the learned Rent Controller was not satisfied with the evidence of petitioner in support of the oral payments of the rent allegedly made by him. In his opinion after the expiry of the term of the lease the petitioner was relegated to the position of a monthly tenant holding over under the respondent. Therefore, in accordance with section 13(2)(i) of the Urban Rent Restriction Ordinance, 1959, he was liable to pay or tender the monthly rent due to the respondent within sixty days from the period for which the rent was payable. In this manner the learned Rent Controller concluded that the petitioner was a defaulter in the payment of the rent due from him for the months of January, and February, 1975. He was therefore, ordered to be ejected from the premises.

In second appeal the learned Chief Justice observed that the Additional District Judge had disposed of the first appeal before him in an extremely slip shod manner completely ignoring all facts and circumstances, and had instead tried to substitute analysis of the evidence by some sort of rehtoric which had no bearing on the facts of this case at all. In these circumstances the learned Chief Justice had no option but to make his own appraisal of the evidence on the record. In doing so he agreed with the Rent Controller that the petitioner had failed to pay or tender the rent due from him in respect of the premises from January, 1975.

But in the opinion of the High Court, after the expiry of the period of two years of the lease, the petitioner continued to hold over as a tenant under the respondent on , he old terms and conditions and that thereafter he was not relegated to the position of a monthly tenant only. In this connec tion reliance was placed on the reported case of Muhammad Ashraf v. Muhammad Sharif and 3 others (P L D 1971 Lah. 610). As such according to the High Court the petitioner was bound to have paid the six monthly rent in advance on the 20th of January, 1975, and for his failure to do so he committed the default. In the circumstances of this case, the default thus committed by him was nothing but wilful and the Court therefore had no difficulty in agreeing with the Rent Controller in ordering his ejectment from the premises.

After hearing the learned counsel for the petitioner at considerable length we are of the opinion that the finding recorded by the learned Rent Controller that the petitioner was a defaulter in the payment of the rent due from him from January, 1975, is fully borne out from the evidence. The High Court has also, on a reappraisal of the evidence, concurred with the Rent Controller in this conclusion. The two Courts have further concurred in holding that default on the part of the tenant was wilful. Indeed he had contumaciously put forward a false plea of the payment of the rent which he failed to substantiate. In Muhammad Alimullah v. Zia‑ul‑Islam (P L D 1973 Kar. 56), cited before us it was observed that the tenant can invoke the discretion of the Court under section 13 of the Ordinance only if he can establish that he was ready and willing to fulfil his obligation to pay the rent.

It was also argued before us on behalf of the petitioner that under section 13(2)(i) of the Ordinance the tenant is liable for ejectment in case he has not paid or tendered "rent due" by him, within fifteen days after 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. In this connection the learned counsel for the petitioners laid emphasis on the term "rent due" in the context and submitted that the rent can be said to have fallen due only after the expiry of the period for which it was payable and not in advance. According to the learned counsel a payment of the rent in advance and any stipulation to that effect in the terms of the tenancy merely operates as a permissive mode of payment of the rent but that under the law any failure to pay the rent in advance dots not entail any forfeiture of the tenancy with all its penal consequences.

But on a careful scrutiny we are unable to accept this narrower interpreta tion sought to be placed on the term. For a proper appreciation the term "rent due" has got to be interpreted in the context of clause (1) of subsec tion (2) of section 13 of the Ordinance read as a whole. It express visualises the payment or tender of rent due within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement within sixty days from the period for which the rent is payable. It expressly recognises the agreement of tenancy, if any, between the tenant and landlord, which is respected. In it in the matter of the payment or tender of rent emphasis is laid on and prominence is attached to the time fixed for

the payment of rent in the agreement of tenancy with the landlord. So that the agreement, if any, has got to prevail. Now on a plain meaning the time fixed in the agreement for the payment of rent might as well be in advance.

Under section 13(2)(i) of the Ordinance a period of grace has been prescribed for the payment of the rent by the tenant to discharge his obliga tion. He must pay or tender the rent within fifteen days after the expire of the "time fixed in the agreement" of tenancy, or in the absence of any such agreement within sixty days from the period for which the rent is payable. This distinction in the phraseology employed between the time fixed in the agreement for the payment and the period for which the rent is payable is quite significant and lends support to the view that the time specified for the payment of the rent in the agreement might as well be in advance.

In general the tenancies are created by statute or as is usual by agreement between landlord and tenant and their terms and conditions are also regulated by the statute or the agreement between the parties according as the case may be. Whether or not a payment has fallen due under an agreement can be ascertained with reference to its own terms. A fortiori, in our opinion, the term "rent due" in the context would mean rent due under the G agreement of tenancy, if any and this would also include due under any stipulation for the advance payment of the rent. In fact thereby the rent thus paid in advance does not lose its character as rent and the fact that it was payable in advance in terms of the agreement does not mean that it was not due and had not accrued. In Rangayya Apper Raw v. Bobba Seriramulu and others ((1904) 27 Mad. 143), their Lordships of the Privy Council had observed that in most cases no doubt, the point of time at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily always the case in India. Legislation, custom or express contract or special circumstances of any case may make rent become due at a point of time different from the close of the period in respect of which it is to be paid.

In this connection before us our attention was drawn to a Single Bench case reported as Iltaf Hussain v. Talib Hussain (P L D 1977 Lah. 110). In that case according to the rent not executed between the parties the rent was payable in advance on the first of every calendar month. But the rent for the months of November, and December, 1974, had been tendered by money order on 13‑1‑1975. In that connection the learned Judge in Chambers observed that there was no bar in the Rent Restriction Ordinance for stipulating payment of monthly rent in advance. He further observed as under:

"The positive question of stipulation and receipt of advance rent is, separate and detachable from the punitive provision relating to consequence of default in payment of the rent. Sub‑clause (i) of subsection (2) of section 13 requires the Rent Controller, before directing eviction, to be satisfied that the tenant had not paid or tendered rent "due by him" in respect of the property within the period specified in the said provision; but "after the expiry of the time for which the rent is payable. The rent payable on monthly basis, on general principle, also, would become due ort the completion of occupancy of the property by the tenant for full month. Thus, it would become "due" from the tenant at the end of the month.

Unless the rent is due, the tenant on the same principle cannot be evicted for supposed non‑payment. Thus looked at, the rent for the month of November, 1974, would become due after the last clay of the said month, i.e. on Ist of December, 1974. This being a monthly tenancy, in accordance with the agreement, fifteen days' time is by law ' ''' allowed to the tenant to clear the same. He could clear it till the 15^th of December. 1974. The appellant failed to do so. Therefore, he was in default qua the month of November, 1974. The rent of December, 1974, was due on 1st of January, 1975. The appellant could clear it on or before 15th of January. He sent the money order on 13‑I‑1975. Therefore, he was not in default qua the month of December, 1974. Similarly, the rent for the month of January, 1975, would become due on 1st. of February, 1975. It was deposited on 17‑1‑1975. Therefore, there is no question of default in that behalf."

But for the reasons fully discussed above we regret that we are unable to subscribe to this view formed by the learned Judge in Chambers. With due deference he seems to have assigned a narrower interpretation to the terms "rent due" not warranted on a cumulative reading of the clause in ques tion and without attaching due weight to the agreement between the parties. In that connection the learned Judge in Chambers has also relied on another Single Bench reported case of Muhammad Ashraf v. Muhammad Anwar (P L D 1975 Pesh. 254), which is, however, distinguishable on its own facts.

For the foregoing reasons this petition has no force and is dismissed.

But at the request of the learned counsel the petitioner is allowed three months time to vacate the premises in dispute.

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