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First Rent Appeal No.41 of 1983, decided on 1st October, 1986

‑‑‑Ss. 15 & 21‑‑Ejectment‑‑Default‑‑Agreement of tenancy for a fixed term providing rent in advance of each month‑‑Relationship of parties after expiry of such agreement‑‑After expiry of period of agreement of tenancy, parties, held, would be governed by provisions of S. 15 of Ordinance XVII of 19T9‑‑‑Tenancy being statutory, non‑payment of rent in advance would not amount to default‑‑Rent paid within sixty days of statutory requirement would be protected and no default in payment of rent could be attributed to tenant.

Muhammad Ashraf v. Muhammad Anwar P L D 1975 Pesh. 254; Altaf Hussain v. Talib Hussain P L D 1977 Lah. 110; Muhammad Khawaja v. Abdul Samad Sirajuddin 1986 C L C 1517; National Bank of Pakistan v. Ishtiaq 1986 C L C 1975; Muhammad Baqar Qureshi v. Mst. Razia 1981 ‑S C M R 18; Habib Ahmad v. Liaquat Hussain P L D 1985 Kar.741; Mst. Fatima v. Mat. Hanifa 1986 C L C 1613 and Muhammad Yousaf v. Abdullah P L D 1980 S C 298 ref.

H. A. Rehman for Appellant.

U . Niamat Maulvi for Respondent.

Dates of hearing: 1st, 3rd and 8th September, 1986.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is filed by the appellant /landlord against the order of the Rent Controller, dated 13‑12‑1982, passed in Rent Case No. 5237 of 1980. The Rent Controller by the impugned order dismissed the ejectment application filed by the appellant against the respondent on the ground of default in payment or rent and damage caused to the property which allegedly materially reduced the utility of the premises.

The learned counsel for the appellant has pressed this appeal only on the ground of dafault in payment of rent. It is urged by the learned counsel, that the rent in respect of the premises was payable in advance under the written agreement of tenancy which was by mutual agreement of parties continued to be applicable even after its expiry and as such Rent Controller was in error in holding that the rent could be paid within sixty days of its becoming due after expiry of the written agreement of tenancy, as provided under the Statute.

In the eviction application the appellant alleged default for the months of April and May, 1980. The rent for these months was remitted by money order by the respondent on 31‑5‑1980. The contention of the appellant before the Rent Controller was that the rent for April and May could be paid by the 16th of these months as according to agreement of parties the rent was payable on the 1st of each month according to English calendar. In order to establish that the rent in respect of the premises was payable in advapce on first of each month, the appellant examined himself and produced in evidence the original agreements of lease, dated Ist of October 1975 and 1st of September 1976, copies of the letters, dated 10‑11‑1979 and 29th May, 1980 sent by the appellant to respondent and reply of respondent, dated 28th June 1980. In rebuttal the respondent examined one of his partners and an employee of the Firm. The Rent Controller after analysing the above evidence reached the conclusion that after expiry of lease deed, dated 1‑9‑1976, the relationship between the parties as tenant and landlord was governed under the statute and as such the provisions contained in the expired agreement of lease for payment of rent in advance was no more applicable and as the rent for the defaulted months was sent within sixty days of the same becoming due, there was no default in payment of rent. The learned counsel for the appellant contends that there was enough material on record to establish that the rent in respect of the premises was payable on the first of every month and as such the Rent Controller wrongly held that remittance of rent, on 31‑5‑1980 for the months of April and May was according law The learned counsel for the respondent in reply to the above contentions of appellant, firstly, contended that any stipulation with regard to payment of advance rent cannot be enforced as rent becomes due under the law only after expiry of the month. It is next contended by the learned counsel that there can be no implied agreement of tenancy between the parties after expiry of written agreement and in any case after enforcement of Sind Rent Premises Ordinance XXVII of 1979, there could only be a written agreement of tenancy between the parties, in view of the provisions of section 5 thereof. It is lastly contended that there is no evidence on record to prove that after expiry of agreement of tenarfcy, dated 1st September, 1976, any fresh agreement of lease/tenancy was executed between the parties and as such the tenancy between the appellant and respondent after expiry of the lease, dated 1st September 1976 was a statutory tenancy. The tender of rent of the premises on 31‑5‑1980 for April and May, 1980. It is accordingly contended, was according to law. In support of the contention that where the rent was contemplated to be payable in advance the default in payment of such rent could not be enforced by filing an application under section 13 of the repealed Ordinance VI of 1969, the learned counsel referred to the cases of Muhammad Ashraf v. Muhammad Anwar P L D 1975 Pesh. 254 and Altaf Hussain v. Talib Hussain P L D 1977 Lah. 110.

Similarly to support his contention that where the original agreement of tenancy had expired, the tenancy between the parties could only be a statutory tenancy, the learned counsel referred to the cases of Muhammad Khawaja v. Abdul Samad Sirajuddin 1986 C L C 1517 and National Bank of Pakistan v. Ishtiaq 1986 C L C 1975.

I will first of all deal with the legal contention raised by the learned counsel for the respondent before examining the case on merits. The first contention of the learned counsel for the respondent is that in view of the dictum laid down in Muhammad Ashraf and Altaf Hussain's cases P L D 1978 Pesh. 254 and P L D 1977 Lah. 110; any stipulation in an agreement providing for payment of advanced rent cannot be enforced in an ejectment case under the Ordinance, I may only mention here that in view of the decision of Supreme Court in the case of Muhammad Baqar Qureshi v. Mst. Razzia 1981 S C M R 18 the decisions relied by the learned counsel stand overruled.

The next submission of the learned counsel for the respondent is that in view of section 5 of Sind Rented Premises Ordinance, 1979, there cannot be any oral tenancy between the parties. To support his contention the learned counsel has relied on the case of Habib Ahmad v. Liaqat Hussain P L D 1985 Kar. 741. Apart from the fact that the decision in the case of Habib Ahmad has been dissented from by another learned Single Judge of this Court in a recently decided case of Mst. Fatima v. Mat. Hanifa 1986 C L C 1613; the case in hand is distinguishable on facts as the alleged agreement of tenancy pleaded in the present case was of a date prior to the enforcement of Ordinance XVII of 1979 and as such is saved under the proviso to section 5 of the Ordinance. The learned counsel for the respondent also contended that in addition to the provisions of section 5 of Ordinance XVII of 1979, there also could not be implied agreement of tenancy between the parties after expiry of the written agreement in this behalf in view of the decision in the case of Muhammad Yousaf v. Abdullah P L D 1980 S C 298; relying on the same decision, the learned counsel for the appellant contended that after expiry of a written agreement of tenency, the parties may either expressly or impliedly agree that their relationship shall continue to be governed under the expired agreement. It is not necessary to decide this contradictory here, as after examining the merits of the case, I am of the view, that there is no evidence on record to establish that the parties had agreed that they shall continue to be governed under the old agreement after its expiry. It is an admitted position that the premises was initially let out under an agreement of tenancy, dated 1st September, 1976 which was for a period of eleven months. After expiry of this agreement, another agreement, dated 1^st September, 1976 was executed between the parties which amongst others provided as follows:‑‑

And whereas on the verbal request of the LESSEE the LESSOR has agreed to continue the lease with effect from 1‑9‑1976 for a further period of eleven months expiring on 31‑7‑1977 of the aforesaid premises on the terms and conditions mentioned herein below

A reading of the above stipulation in the agreement will show that firstly, the lease agreement was renewed at the request of lessee from 1‑9‑1976 and secondly, it was renewed only for a period of eleven months and expired on 31‑7‑1977. There is nothing in the lease agreement, dated Tat September 1976 to show that the parties intended that after its expiry it will he renewed for any further period. On the contrary the lease agreement specifically mentioned its expiry date, namely 31‑7‑1977. The learned counsel for the appellant, contended that after expiry of the above lease the appellant sent letters, dated 10‑11‑1978 and 29th May, 1980 asking the respondent to pay the rent of the premises in advance and agree to continue as tenant of the premises under the expired agreement of tenancy and by his conduct the respondent agreed to it as he sent rent for one month in advance. It is true that in the two letters referred to above, the appellant had asked the respondent to continue as tenant on the terms and condition of expired agreement of tenancy in the premises but respondent refused to agree to the above offer as is evident from his reply, dated 16th June, 1980, written in response to appellants letter, dated 29‑5‑1980. The fact that on one occasion the respondent remitted rent in advance, in these circumstances, cannot be treated as his agreement to continue to be governed under the expired agreement of tenancy. It is not disputed by the learned counsel for the appellant that if the tenancy is found to be a statutory tenancy under the provisions of section 15 of the Ordinance, then there was no default on the part of the respondent C in payment of rent. After going through the evidence of the parties. I am satisfied that the Rent Controller rightly held that after expiry of the agreement of tenancy, dated 1‑9‑1976, the tenancy enjoyed by the respondent was statutory tenancy and as such there was no default in payment of rent.

No case for interference is made out, the appeal is accordingly dismissed but there will be no order as to costs.

A.A Appeal dismissed

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