2003 PLP 466 (YLR)

(ii) that there is no bar in depositing rent in through cheque; the cheque was deposited on 25th of July, as ordered by the Controller on 9‑7‑2001 which was encashed on 27th July, it has not been brought on record to show that if on 25th the appellant had not sufficient funds for the encashment of the cheque; if any delay in presenting the cheque is caused by the office of the Controller, the appellant is not to be blamed; (iii) that there was no illegality in extending the time for compliance of the Court order which was expiring on 9‑7‑2001; (iv) there is no direction in the order, dated 19‑6‑2001 for depositing in advance' the yearly rent.

9. In reply Mr. Hussain for the respondents contended as under: (i) that in spite of expiry of the tenancy agreement terms thereof which are not in contravention of the Act. will remain in force and the appellant would be liable to pay rent in advance on yearly basis and also the electricity charges thus the rent order dated 19‑6‑2001 does not suffer from any illegality; (ii) the trial Court had no jurisdiction to extend time for deposit of rent as was done by it on 9‑7‑2001; (iii) the appellant has committed default in payment of arrears as well as future rent and in that the appellant should have deposited rent in advance for the whole year of 2002 on or before 5th of January, 2002, but they deposited only Rs.1,50,000 for the months of April, 2001 to March, 2002 on 22nd Junuary, 2002; (iv) the payment of rent under the tentative order through cheque was not good payment; the cheque was deposited on 25th but it was encashed on 27th it amounts another default.

10. I have considered the submissions of both the sides. Number of case‑law has been referred by them. From the contentions of the parties following points for determination arose: (i) Whether the Controller committed illegality in directing the appellants on 19‑6‑2001 under section 17(8) of the Act to deposit rent as agreed in the tenancy agreement? (ii) Whether the payment through cheque in compliance of the Court order was illegal? (iii) Whether the Controller was authorized to extend the time for compliance of the Court order dated 19‑6‑2001 up to 25th July, 2001?

11. A tenancy agreement was executed between the parties on 10‑1‑1994, which expired in 9th January, 1999. The rent application was filed on the basis of the said agreement, the clauses (3) and (12) whereof are reproduced as under: (3) That the agreement shall remain in force for a period of 5 years. The tenant will pay advance yearly rent on the first year's of each year during subsistence of tenancy. " "(12) That the landlord will provide electricity through a Meter and Three Phase Electricity connection for the illumination of the said Neon Sign and the tenant shall pay the electricity charges, according to the meter reading on the rates payable by other tenant/occupiers of the building."

12. The factum of agreement, dated 10‑1‑1994 is not denied by the parties. It, appears that the Controller, keeping in view the pleadings of the parties and the contents of the said agreement passed the order dated 19‑6‑2001 under section 17(8) (ibid).

13. In the case of Mrs. Zarina Khawaja v. Agha Mehboob Shah (PLD 1988 SC 190) as many as seven questions were framed by the Hon'ble Court and on page 195 question No.4 was to the following effect: 1. 2. 3. .

4. Whether on termination of an agreement of tenancy when the tenant remains in occupation as of right subject to liability under the Rent Restriction Law, the terms of agreement become irrelevant for regulating the tenancy? 5. . 6. . 7. .

14. At page 201, while answering the question No.4 the Hon'ble Court observed as under:‑‑ "Thus it can safely be said that the rent taws hermit all covenants in agreements, alive or expired; which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under the law. In addition, they also remain operative for other purposes permitted by the general law. The fourth question is answered in negative. "

15. The above view is supported by the cases of Shujauddin Qureshi v. Mst. Husan Ara Begum (PLD 1964 (W.P.) Lahore 292 and Mst. Akhter Jehan Begum v. Muhammad Azam Khan (PLD 1983 SC 1). The tentative rent order is to be passed on tentative assessment by seeing documents and pleading of the parties and obedience could not be shelved on any reason. The tenancy was on a yearly basis, which is not denied by the appellants either in their written statement or before this Court. In these circumstances, there is no illegality in the order dated 19‑6‑2001. The contention of Mr. Pirzada, that since the agreement had expired, therefore, its terms and conditions are not applicable is without force.

16. As to the extension of time, the Hon'ble Supreme Court in the case of M/s. Ansari Brothers v. Holy Trinity Church (PLD 1971 SC 700) while dealing with its own observation made in another case of Ghulam Muhammad Khan Lundkhoor v. Safdar Ali (PLD 1967 SC 530) came to the conclusion that the Rent Controller had no discretion to extend time to enforce default and was under duty to strike off the defence and put the landlord into possession. It was further held that since the Rent Controller had no alternate but to strike off the defence of the tenant on account of default an his part, the second order permitting the tenant to deposit arrears of rent and future rent was unauthorized. In view of the above, in the present case second order dated 9‑7‑2001 of the Controller extending the time for compliance of the first order dated 9‑6‑2001 was without lawful authority. It is an admitted position that the order dated 19‑6‑2001 was not complied with by the tenant and therefore, he committed default in payment of arrears of rent.

15. As to the payment through cheque in compliance of the tentative order in case of Misbaullah Khan v. Mahmoona Taskinuddin (1995 SCMR 287) at page 292, following was observed:‑‑ " .. Rent law allows tender of rent by tenant to the landlord by payment through cheque if so agreed between the parties but such mode is not allowed at the time of passing of tentative rent order for which it is specifically stated that the Controller shall direct the tenant to deposit in his office before the specific date the rent due from him. In support of the proposition reference can be made to the cases of Messers Peoples Steel Mills Ltd., Karachi v. Hafizuddin and 7 others (PLD 1981 Karachi 739) and Younus Rizwani Sheikh etc. v. Pakistan State Oil Co. Ltd. (PLD 1988 Kar. 338). "

17. With respect and in addition to the findings of the Hon'ble Supreme Court it may not be out of place to mention here that in the prevailing law and order situation it is almost difficult to move with heavy amounts of cash from one place to another, in these circumstances, the safest mode of payment could be through pay order or bank draft. The pay order and bank draft are as good as cash as their payment is guaranteed by the bank to the payee. In case of cheque there is no guarantee for its encashment. What the Legislature wants is that the amount ordered in the tentative order should be deposited with the office within the prescribed period. Perhaps this purpose can be achieved either by depositing the pay order/bank draft or cash within the prescribed period. In the instant case the appellant deposited the cheque on the last date 25‑7‑2001 and was encashed on 27‑7‑2001 after two days. In view of the dictum laid down by the Hon'ble Supreme Court the appellant also committed default in depositing the rent.

18. The appellant also committed default in depositing future rent as under the terms of the agreement he was directed to pay in advance rent for 2002, on or before 5th of January, 2002. The contention of Mr. Pirzada that the Controller ordered for depositing future rent after expiry of rental year is not correct. The wording of the order dated 19‑6‑2001 to that effect are clear and it is in consonance with clause (3) of the Tenancy Agreement dated 10‑1‑1994. Under the order dated 19‑6‑2001 the appellant. deposited the future rent in advance, which was not done admittedly.

19. The upshot of the above discussion is that the impugned order of the Controller is legal and does not require interference.

20. The appeal being without merits is, therefore, dismissed in limine with no order as to costs.

21. The appellant is directed to hand over vacant possession of the property in case to the respondent within a period of three months. S.A.K./U‑27/K Appeal dismissed.