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Writ Petition No.1475 of 1983, decided on 27th February, 1984.

--S.13(2)(i)--Agreement of tenancy--Contents of Cl.(i) of subsection (2) of S.13, not providing that agreement of tenancy must be in writing--Agreement of tenancy envisaged in section, includes oral as well as written agreement of tenancy--Contention that covenant to pay rent is necessarily a written agreement and not a verbal agreement, held, not correct--Covenant to pay rent may be oral as well as written.

Mirza Abdul Aziz Beg v. Mushtaq Ahmad Sheikh 1980 SCMR 834; Muhammad Yousaf v. Abdullah P L D 1980 S C 298 and Zahoor Ahmad v. Mehdi Hassan 1982 C L C 623 ref.

---S.13--Rent, tender of--Application for tender of rent for two months made on 10th of third month, held, could not be considered as a valid tender of rent.

Saeed-ud-Din v. Muhammad Saleem P L D 1980 Kar. 92 ref.

---S.13--Default--Cause of action arising during pendency of ejectment petition, held, could also be taken into consideration while considering question of default.

Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan PLD 1981 Lah. 33 ref.

---S.13--Specific period of default not alleged in ejectment petition- Held, tenant could be held defaulter in circumstances.

---Art.9--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 15--Tribunal having jurisdiction to decide a matter, competent to decide same rightly or wrongly--Mere fact that another conclusion could be arrived at from evidence, held, did not make a case for interference in exercise of its constitute teal jurisdiction Jurisdiction of High Court to interfere in matters of ejectment of tenant in exercise of its constitutional jurisdiction very limited and confined to ascertaining whether Appellate Authority had not flouted provisions of relevant statutes or had failed to follow laws relating thereto as laid down by superior Courts.

Muhammad Sharif and another v. Muhammad Afzal Sohail, etc. PLD 1981 S C 246 and Sadiq Hussain Qureshi v. Federation of Pakistan and 2 others P L D 1979 Lah. 1 rel.

Hamid Khan for Petitioner.

Nemo for Respondent No.1.

Muhammad Arif for Respondent No.2.

Date of hearing: 27th February, 1984.

This constitutional petition assails the judgment dated 10-1-1983 passed by the learned District Judge (Appellate Authority, under the Urban Rent Restriction Ordinance; 1959), Sargodha.

2. Mst. Razia Khanum, respondent No.2, is admittedly the owner of house No.2-S-13 Block No.14, Sargodha. The petitioner is in occupation of the said house as tenant under respondent No.2 on a monthly rent of Rs.150. In June, 1978, respondent No.2 filed an ejectment application against the petitioner before the learned Rent Controller, seeking eviction of the petitioner on the grounds of default in payment of rent and bona fide personal need.

3. The learned Rent Controller after considering the evidence adduced before him by the parties dismissed the ejectment application of respondent No.2 on 16-2-1981. The landlady preferred an appeal which has been accepted by the learned District Judge vide his impugned judgment dated 10-1-1983. He has found the petitioner to be defaulter in payment of rent although he has not recorded any clear findings on the question of bona fide personal need.

4. The learned District Judge has found that although it was an oral tenancy but as per terms of the verbal agreement of tenancy, the tenant was required to pay the monthly rent in advance. He further found that the rent for the months of April to July, 1978 was deposited in Court on 12-9-1978 and thus the tenant was proved to be defaulter in payment of rent.

5. It has been contended on behalf of the petitioner that in the absence of the written agreement of tenancy, first part of clause (1) of subsection (2) of section 13 of the Rent Restriction Ordinance requiring the payment/tender of rent within a period of 15 days from the date the rent has become due is not applicable and that in case of oral agreements of tenancy, the second part of the said clause applies under which rent can be paid/tendered within 60 days of the date it has become due.

6. It has also been urged on behalf of the petitioner that the impugned judgment passed by the learned Appellate Authority was based on misreading of evidence inasmuch as the rent for the months of April to July, 1978 was in fact paid on 13-8-1978 vide Annexure N/1 and not on 12-9-1978 as held by the learned District Judge. It has also been argued that in the rent application, it has not been specifically alleged as to for which period the petitioner was defaulter in payment of rent and the issue relating to default also did not specify, such period.

7. As regards the first contention of the learned counsel for the petitioner that in case of verbal agreement of tenancy, the rent can always be paid within a period of 60 days from the date it has become due, it may be observed that the relevant provisions of clause (i) of subsection (2) of section 13 of the Rent Restriction Ordinance, 1959, read as follows:-

"(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within 15 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 60 days from the period for which rent is payable."

8. It manifestly transpires from the contents of clause (i) of subsection (2) of section 13 ibid that it speaks of agreement of tenancy and nowhere provides that such agreement of tenancy must be in writing. It, therefore, follows that agreement of tenancy envisaged in clause (i) of subsection (2) of section 13 above includes oral as well as written agreement of tenancy. The learned counsel for the parties conceded that there was no direct authority on the point. On behalf of the petitioner, however, reliance has been placed) on Mirza Abdul Aziz Beg v. Mushtaq Ahmed Sheikh 1980 S C M R 834, Muhammad Yousaf v. Abdullah P L D 1980 SC 298 and Zahoor Ahmad v. Mehdi Hassan 1982 C L C 623. In Mirza Abdul Aziz Beg's case, it was ruled that question of tenant's default is to be determine6 solely in the light of covenant to pay rent in advance. It has been argued on behalf of the petitioner that the covenant to pay rent is necessarily a written agreement and not a verbal agreement. This Interpretation, I am afraid, is not correct. Covenant to pay rent may be oral as well as written. In Muhammad Yousaf's case, it was held that on expiry of a lease agreement, the terms of the tenancy are governed by the statute and not by those contained in the expired agreement. This authority thus does not draw any distinction between oral or written agreement of tenancy. In Zahoor Ahmad's case also it was found that after the expiry of the lease agreement, the rent is payable within 60 days of its becoming due and not according to the terms of the expired agreement.

In the ejectment application, it has been alleged that the tenant according to the terms of the agreement of tenancy was required to pay the rent of every month in advance. In the written statement, it has been stated in paragraph 3 of the preliminary objections that the landlady had been receiving the rent of every month in advance without issuing receipt through her husband Malik Muhammad Sarwar and after his death, through her sons Malik Dost Muhammad or Malik Farooq. In paragraph 1 (merits) of the written statement, it has further been pleaded that rent of the tenanted house was paid every month in advance. It has thus been admitted by the petitioner in his written statement that as per terms of verbal agreement of tenancy, rent was payable in advance every month. The petitioner admittedly paid the rent for the months of April to July, 1978 amounting to Rs.600 on 13-8-1978 vide Annexure N/1. In this annexure, date under the signatures of Civil judge is recorded as 12-9-1978 on account of clerical error which misled the learned District Judge to consider the date of deposit as 12-9-1978 instead of 13-8-1978. But his mistake does no, advance the case of the petitioner/ tenant in any manner because payment in Court of the rent for the months of April, May, June and July, 1978, on 13-8-1978 is also belated one as he was required to pay the rent for these months in advance.

9. It has been urged that after the refusal of Muhammad Farooq, the son of the landlady, to receive rent, the petitioner approached the learned Rent Controller for permission to deposit the rent in Court. He filed this application on 10-6-1978. The Court permitted him to deposit the rent in Court on 26-7-1978 and in pursuant to that order, he deposited the rent on 13-8-1978. Rent for the month of April, 1978 had become due by 14th April and for May, 1978 by 15th May, 1978, and, therefore, an application for deposit of rent for the said two months made on 10-6-1978 cannot be considered as a valid tender. It is also note-worthy that order for deposit of rent was obtained on 26-7-1978 but the rent was actually paid on 13-8-1978. In Saeed-ud-Din v. Muhammad Saleem P L D 1980 Karachi 92 it was held that in the event of refusal to accept rent tendered in person the tenant was bound in law to tender it by money order either immediately after such refusal, or soon after that date it was due to be paid. Delayed tender of rent would not amount to proper tender and any resultant default can be attributed entirely to the negligence of the tenant in this behalf. Such default would be termed as nothing else but wilful.

10. In the light of what has been said above, it is concluded that there is no merit in the petitioner's contention that in the absence of written agreement of tenancy, no effect could be given to the terms of tenancy relating to payment of monthly rent in advance. It is further held that the petitioner in this case has been rightly found to be default in payment of rent by the learned District Judge in regard to months in April, and May, 1978.

11. It has also been argued on behalf of the petitioner that in the ejectment application default was alleged with regard to the period from July, 1974 till the filing of the ejectment application which was actually instituted on 15-6-1978. The default with regard to the alleged period not been proved and for the months for which the petitioner has been held to be defaulter, the application was premature. This argument in fallacious. It has already been held that the petitioner has been rightly held to be a defaulter with regard to the months of April and May, 1978. Ejectment application which has been filed on 15-6-1978 cannot be considered as premature so far as default for the months of April and May, 1978 is concerned. Moreover, cause of action which has arisen during the pendency of ejectment application can also be taken into consideration while considering the question of default. It has been held in Muhammad Ashraf and others v. Muhammad Abdullah Khan P L D 1981 Lahore 33 that if the cause of action for any legal proceedings is not available at the time of initiation of the proceedings but becomes available during the pendency of the proceedings, the proceedings cannot be thrown out simply for the reason that there was no cause of action at the time when proceedings were commenced.

12. No misreading of evidence has been pointed out on behalf the petitioner except that the learned District Judge has found that the rent for the months of April to July, 1978, was paid on 12-8-1978 although actually it was paid on 12-9-1978. As already explained, date under signatures of the Civil Judge is recorded as 12-9-1978 on account of clerical error. Due to this mistake the learned District Judge held the date of deposit as 12-9-1978. The Bank has, however, certified that actually this amount of Rs.600 was paid on 13-8-1978. In these circumstances, it cannot be said that the learned District Judge has misread the evidence. There is also no force in the contention that a person can be held to be a defaulter unless a specific period of default was mentioned in the ejectment application. The landlady alleged the period of default from July, 1974 till the filing of the ejectment application but actually the petitioner has been found to be defaulter for the months of April and May, 1978.

13. The findings of the learned District Judge to the effect that the petitioner/ tenant was found to be defaulter in payment of rent cannot be interfered with in the exercise of writ jurisdiction. It has been held in Muhammad Sharif and another v. Muhammad Afzal Sohail, etc. PLD 1981 S C 246 that the Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction. It was further ruled in this case, that jurisdiction of the High Court to interfere in matters of ejectment of tenants in exercise of its constitutional jurisdiction was very limited and confined to ascertaining whether District Judge (Appellate Authority) had not flouted provisions of relevant statute or had failed to follow law relating thereto as laid down by superior Courts.

14. In Sadiq Hussain Qureshi v. Federation of Pakistan and 2 others P L D 1979 Lahore 1 it was found that in exercise of writ jurisdiction High Court has to confine itself to determine if the Tribunal had jurisdiction to go into the question before it and if in doing so it has transgressed the limits of its lawful authority, but the High Court has not to sit as a Court of appeal and decide whether the evidence before the Tribunal was sufficient for upholding the conclusions it has arrived at.

15. In the light of the above discussion, it is further concluded that in the circumstances of the under consideration case, there is no justification to interfere with the impugned judgment in exercise of the constitutional jurisdiction of this Court.

16. For the foregoing conclusions, the present constitutional petition is- dismissed with costs but the petitioner is allowed one month's time from today for vacating the tenanted premises.

M.A.K./3045/L Petition dismissed.

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