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Second Appeal No. 11 of 1974, decided on 15th October, 1981

‑‑ S. 13 and Registration Act (XVI of 1908 , Ss. 17 & 49‑Unregistered agreement of lease held, could be looked into by Court for collateral purposes of finding out rent and mode of payment of rent.

Abdullah Bhai v. Ahmed Din P L. D 1964 S C 106 ; Muhammad Ishaque v. Messrs Erose Theatre P L D 1977 S C 109 and Muhammad Ashraf v. Muhammad Sharif P L D 1971 Lah. 610 ref.

‑‑ S. 13‑Ejectment‑Default‑Contention as to rent being payable only on receipt of bill‑Appellant failing to establish existence of any such agreement between parties‑Appellant tenant being bound under law to tender rent every month, Courts below, held, justified in holding appellant having committed default in payment of rent.

Khalid Anwar for Appellant.

Hasan Akbar for Respondent.

Date of hearing : 15th October, 1981.

The appellant has challenged in this appeal the concurrent findings of the two courts below holding him a defaulter in payment of rent for the months of July and August, 1970 and ordering his ejectment from the premises.

2. Mr. Khalid Anwar, the learned counsel for the appellant very candidly, at the hearing of this appeal, stated before me that in view of the concurrent findings of fact by the two Courts below that the appellant has defaulted in payment of rent for the months of July and August, 1970, he would not challenge this finding of fact and will confine his arguments only with regard to the legal aspect of the case which relates, to the admissi bility of the rent deed dated 27‑5‑1970, Exh. 6, produced in evidence before the Controller. It is contended by the learned counsel that the lease agreement which is the basis for, filing of the ejectment case against the appellant is a document evidencing lease in excess of one year and therefore it required compulsory registration both under section 107 of the Transfer f of Property Act as well as under section 17 of the Registration Act. It is urged by the learned counsel that although the document is described as a lease for a period of 11 months but in reality it was a lease for an indefinite period as would appear from paragraphs 4 and 5 of the document. It is alternatively contended by the learned counsel that even if the document is held to be a lease for a period of 11 months only, it still required registration under section 107 of the Transfer of Properties Act and therefore, in the absence of registration, the respondent could not assert a right under this document to enforce the term with regard to payment of rent on a specified date contained in the document. To support his contention that even a lease for a period of l I months required registration under section 107 of the Transfer of Property Act, the learned counsel has referred to the case of Abdullah Bhai v. Ahmed Din (PLD1964S C106). In reply to the above contentions of Mr. Khalid Anwar, the learned counsel for respondent urged that even if the contention of the learned counsel for the appellant is accepted the lace; of registration will not render the document inadmissible in evidence and it can be looked into by the Court for collateral purposes of finding out the rate of rent, mode of payment etc. To support his contention, the learned counsel for the respondent relied upon the case of Muhammad Ishaque v. Messrs Erose Theatre (P L D 1977 S C 109) and Muhammad Ashraf v. Muhammad Sharif (P L D 1971 Lah, 610). In the case of Muhammad Ishaque, the learned counsel for respondent relied upon the following passage at page 125 of the report

"It may be added that the argument based on the requirement of compulsory registration of the partnership deed has really lost its rele vance in view of the replacement of the original section 49 of the Registration Act by a new section by the Registration (Amendment) Ordinance, 1962. the former provision that an unregistered document creating declaring or transferring a right in immovable property could not be received in evidence is no longer the law of the land, and the only penalty for non‑registration is that the document in question shall not be operative in respect of rights in immovable property."

In Muhammad Ashraf's case the Division Bench of the Lahore High Court, while dealing with the objection regarding admissibility of a document which is not registered and the use of such document for collateral purpose held as follows

"The objection as regards the admissibility in evidence of the rent deed is misconceived, for the reason that on the appellant's own showing the tenancy was for a period of eleven months ending with the 31st of August, 1968. The law does not require such an agreement of lease to be registered. Further, the document was being used, if at all, for the collateral purpose of ascertain the mode of payment, and not as the basis of the tenancy which has been found to be statutory tenancy in terms of clause (i) of section 2 of the Ordinance. Finally, the two essential terms of the previous tenancy namely, the rate of rent and mode of payment stand admitted by the present appellant, and, therefore, the exclusion of the agreement from evidence would make no difference to the decision of this case."

In view of the above discussed legal position I am in no doubt that even if, the agreement of lease required registration as contended by Mr. Khalid Anwar it was admissible in evidence in view of section 49 of the registration Act and it could be looked into by the Court for the collateral purposes of finding out the rate of rent and mode of payment of rent. The respondent) in his ejectment application in paragraph 3 made a categorical statement that the agreed monthly rent was Rs.150 exclusive of electricity and other charges and that this rent was payable within first five days of the succeeding month. In the written statement the appellant admitted the rate of rent but denied rest of the allegations made in paragraph 3 and further contended that the agreement is not legal and maintainable. There is however, no specific denial that the rent was not payable within the period of first 5 days of the succeeding month. The respondent witness when appeared in the witness‑box also categorically stated on oath before the Rent Controller that the rent for the months of July, 1970 and August, 1970 which was to be paid by the appellant within five days of the succeeding months was not so paid. No question was suggested to the contrary in the cross‑exami nation to the witness. In view of this state of evidence and the legal position that the lease agreement was admissible in evidence for collateral purposes, I am of the view, that the Courts below were justified in holding that the rent in respect of the months of July and August was to be paid within 5 days of the succeeding month in terms of the lease agreement. It is not disputed that under section 13 (2) (1) of the Ordinance, if the rent was payable by a specified date, then the rent should have been paid or tendered within 15 days of that date. The finding of the two Courts below that the rent was not so paid or tendered is not assailed before me. Mr. Khalid Anwar, the learned counsel for the appellant, however, urged that it was admitted by the appellant's witness in his cross‑examination that no bill for the month of August, 1970, was sent and even for the month of July, 1970 they failed to produce the copy of the bill. It is therefore, contended that as rent was payable only on receipt of the bill there was no default on the part of appellant. This argument of the learned counsel did not find favour with the Courts below and has also not impressed me. Firstly the appellant failed to establish on record existence of any such agreement between the parties and secondly under the law the appellant was bound to tender the rent to the respondent within 15 days of the rent becoming due. The rent for the month of July, 1970 and August, 1970 was to be paid tendered on or before 20th of August, 1970 and 20th September, 1970 respectively. No rent was paid or tendered on the above dates. The ejectment application was instituted against the appellant on 25‑9‑1970 and the Courts below were therefore justified in these circumstances, to hold that the appellant had committed default in payment of rent for the month of July and August, 1970. No other point was raised. I accordingly dismiss this appeal with costs. The appellant is however, allowed four months' time to vacate the premises subject to their depositing monthly rent in Court for this period.

M. Y. H. Appeal dismissed.