1984 PLP 969 (CLC)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑‑‑ S. 13‑Registration Act (XVII of 1908), Ss. 17 & 49‑Default in payment of rent‑Lease agreement‑Lease agreement for more than one year remaining unregistered, held, does not create any right, title or interest and cannot be pressed into service for proving such right for period exceeding eleven months‑‑Tenancy after eleven months in such cases continues by virtue of provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and not on basis of expired agreement‑Tenant liable to default only if proved that he has not paid or tendered rent within sixty days from period for which rent was payable. Muhammad Yusuf v. Abdullah P L D 1980 S C 298 rel. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑--S. 13‑Default in payment of rent‑Finding of Additional District Judge that tenant committed default in payment of rent neither based on misreading or non‑reading of evidence nor result of misinterpretation of legal provision‑Tenant also defaulter in respect of water charges for a pretty long period‑Finding of Additional District Judge upheld and interference declined in writ jurisdiction. Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan P L D 1981 Lab. 33 and Saeed‑ud‑Din v. Muhammad Salim P L D 1980 Kar. 92 rel. This Constitutional Petition assails the order, dated 29th July, 1982 passed by a learned Additional District Judge, Lahore in his capacity as appellate authority under the West Pakistan Urban Rent Restriction Ordinance, 1959.

2. Haji Muhammad Umer, the predecessor‑in‑interest of respondents Nos. 1 to 8 filed an ejectment application under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the petitioner, the tenant, seeking his eviction from the tenanted pre mises which form part of the ground floor of 33‑Commercial Zone, Liberty Market, Gulberg‑III, Lahore, which the petitioner had rented for running a Snack Bar in the name and style of Top Capi. The eject ment of the tenant was sought on the grounds of default in payment of rent ; non‑payment of water charges and bona fide personal need.

3. The ejectment application was resisted by the petitioner and the learned Rent Controller framed the necessary issues arising out of the parties' pleadings. After considering the parties' evidence adduced before him, the learned Rent Controller vide his judgment, dated 18th February, 1981 dismissed the ejectment application of the respondents' predecessor. An appeal was preferred before the learned Additional District Judge who accepted the appeal vide his impugned judgment, dated 29th July, 1982 holding that the petitioner was proved to be de faulter in payment of rent, Thus, the ejectment of the petitioner was ordered by the learned Additional District Judge through the impugned order and be was allowed three months' time for vacating the tenanted premises. As regards the plea of personal requirement of the landlord, the learned Additional District Judge found that the said plea vanished with the death of the landlord.

4. The petitioner has now invoked the writ jurisdiction of this Court to challenge the validity of the impugned judgment.

5. It has been argued on behalf of the petitioner that the learned Additional District Judge has held that the rent was payable by the petitioner in advance as per terms of the agreement of lease and that in fact the said lease was for a period of less than one year and, therefore, it expired in 1977. Thereafter, the terms of the said agreement cannot be pressed into service. It has further been contended that the lease agreement has neither been produced before the learned Rent Controller nor got formally proved and its photostat copy cannot be taken into consideration as the same was not legally admissible in evidence.

6. Admittedly, a photostat copy of the lease agreement, dated 15th July, 1976 is on the records. As per terms of this lease agreement, the lease commenced on 15th July, 1976. Monthly rent of the tenanted premises was fixed as Rs.1,000 and it was payable in advance. It has further been provided in the agreement that the charges of electricity, sui‑gas and water would be payable by the lessee direct to the authorities concerned. This was, of course, an unregistered agreement of lease. It is true that the lease agreement has not been duly produced before the learned Rent Controller ; no formal proof regarding its execution has been brought on records and merely an uncertified photostat copy of the lease agreement has been placed on the records on behalf of the landlord. Such an uncertified photostat copy is, of course, not legally admissible in evidence. But, we cannot lose sight of the fact that the execution of the lease agreement, dated 15th July, 1976 has been admitted by the petitioner in paragraph 2 of his written statement filed before the learned Rent Controller. He has also admitted the rate of the rent and the fact that the charges of sui‑gas, electricity and water were payable by him. He has claimed the payment of these charges regularly. In view of the admission of the petitioner in his written statement, the objection raised on his behalf to the effect that the execution of the lease agreement has not been got formally proved is rendered as without substance. The lease agreement, dated 15th July, 1976 however, is an unregistered document. Under section 17 of the Registration Act, in case of a lease for one year or more such document required compulsory registration. As it is not a registered document, therefore, it does not create any right, title or interest and cannot be pressed into service for proving such right etc. for the period exceeding eleven months by virtue of the mandatory provisions of section 49 of the Registration Act. This document, therefore, expired before the expiry of one year of its execution. After the said expiry, the tenancy continued by virtue of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, and not on the basis of the expired agreement. It ha,, been held in Muhammad Yusuf v. Abdullah (P L D 1980 S C 298) that the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 are of an overriding nature and they regulate in consi derable detail the rights and liabilities of lessors and lessees, therefore, the proposition that the Ordinance does not seek to introduce new terms and conditions of tenancy except continuing it . beyond the stipulated period is much too wide. It has further been observed that the words ‑the agreement of tenancy" mean an agreement which is in force and not an agreement which has expired and is dead. It was laid down further in the precedent case that after the expiry of the lease agreement, the rights and liabilities of the tenant were governed exclusively by the provisions of the Urban Rent Restriction Ordinance, 1959 and the question of the amount of rent due from him has to be determined in accordance with the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance. Under this clause, a tenant has to pay the rent due from him within 60 days from the period for which the rent is payable.

7. In the circumstances of the present case, the case of the respon dents' predecessor has throughout been that rent was payable in advance and that the tenant committed default with regard to payment of rent for the month of February, 1978 as he did not pay the same within 15 days of the date by which it was payable by him. The learned Addi tional District Judge in his impugned judgment has also found that as per terms of lease agreement, the rent was payable in advance but the tenant failed to fulfil this requirement. As already observed, the lease agreement expired within one year of its execution being an unregistered document. Thereafter, the clause of the lease agreement to the effect that the rent was payable in advance cannot be pressed into service. In this case the tenant can be held liable for default if it is proved that he had not paid or tendered rent within 60 days from the period for which rent was payable as provided in clause (i) of subsection (2) of section 13 ibid.

8. The tenancy, as per contents of the lease agreement, commenced with effect from 15th July, 1976. It has been urged on behalf of the respondents that the tenancy commenced with effect from 3rd July, 1976 as in 1979, the tenant had paid water charges with effect from that day. Besides the date of commencement of tenancy having been specified as 15th July, 1976 in the lease agreement, it has been stated by Muhammad Umer, the deceased predecessor of the respondents, before the learned Rent Controller while appearing as P. W. 3 that the tenanted premises were rented from him by the petitioner on 15th July, 1976 and a lease deed for eleven months was executed. Thus, there is no force in the con tention that the tenancy commenced prior to 15th July, 1976. The default on the basis of which eviction of the petitioner has been ordered admittedly pertains to the month of February, 1978. Keeping in view the date of commencement of tenancy, the rent for the month commenc ing with effect from 15th February, 1978 and ending on 14th March, 1978 could validly be paid within 60 days with effect from 14th March, 1978 i.e. this rent could be paid by 14th May, 1978. In the present case, the ejectment application was filed on 21st February, 1978 on the ground that the tenant had committed default as he failed to pay the rent for the month of February, 1978. Actually, as already held, the rent for the period from 15th February, 1978 to 14th March, 1978 could validly be paid upto 14th May, 1978. In this view of the matter, the ejectment application on the ground of default in payment of rent regarding the month of February, 1978 was premature. It has, however, to be seen that if even after the institution of the ejectment application, the tenant paid or tendered the rent for the month of February, 1978 within the pres cribed period or not. Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan (P L D 1981 Lah. 33) it has been held that if the cause of action for any legal proceedings was not available at the time of initiation of the pro ceedings but became available during the pendency of the proceedings, the proceedings could not be thrown out simply for the reason that there was no cause of action at the time when they were commenced. It can, there fore, be seen as to whether actually there was any default on the part of the tenant with regard to payment of rent for the month of February, 1978. It has been stated by the predecessor of the respondents while coming into witness‑box before the learned Rent Controller as his own witness that the rent for the month of February, 1978 was not paid to him at all and that no money order was sent to him in regard to the rent for that month and on no occasion he refused to receive the remittance through money order. The petitioner i.e. the tenant while appearing as R. W. 4 before the learned Rent Controller has stated that he has deposited the rent for the month of. February, 1978 in the Court as the landlord had refused to receive the rent and filed the ejectment proceedings in February, 1978 for which he has annexed the treasury challan with the relevant records. As per contents of the challan, the rent for the months of February and March, 1978 was deposited in the treasury on 22nd May, 1978 i. e. more than a week after 14th May, 1978 the due date.

9. It has been contended on behalf of the petitioner that in fact he sent crossed cheque, dated 2nd March, 1978 to the landlord on account of the rent for the month of February, 1978 through registered post but the landlord refused to receive the delivery of the letter and thereafter he (the tenant) deposited the rent in Court. Mark `C' is the copy of the envelope alleged to contain the cheque in question. Annexure `I' is the photo copy of the said cheque. The landlord vie. the predecessor of the respondents while appearing as his own witness before the learned Rent Controller has categorically denied of having refused to receive any cheque or such registered letter. The petitioner has failed to produce the postal receipt to prove the factum of having posted a registered letter to the landlord or the postman who could say that he approach the land lord for the delivery of the registered letter in question to him but he refused to receive the delivery. May be, that after the institution of the ejectment application, the tenant prepared the cheque as an afterthought concoction and kept the same with him. It is also to be seen that if actually the landlord had refused to receive the cheque sent per registered post on or about 2nd March, 1978 the tenant should have tried to remit the rent by money order or to deposit the rent in Court soon thereafter. But in the present case, the rent was deposited in Court as late as 22nd May, 1978. In Saeed‑ud‑Din v. Muhammad Salim (P L D 1980 Kar. 92), it was observed "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 for the month of February, 1972 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 substance in the contention that the findings of the learned Additional District Judge on the question of default were based on mis reading or non‑reading of evidence or were the result of mis‑interpretation of the relevant legal provisions. It is further observed that even it the liability to pay the rent under the provisions of the West Pakistan Rent Restriction Ordinance, 1959 was within a period of 60 days from the period for which rent was due and the tenancy commenced on 15th July, 1976 and not earlier, the petitioner committed default regarding payment of rent for the period from 15th February, 1978 to 14th. March, 1978 which he paid as late as 22nd May, 1978.

11. It has also been noticed that the water charges amounting to Rs.6,000 relating to the tenanted premises were paid by the petitioner (the tenant) to the landlord on 2nd March, 1979, This is true that by virtue of the provisions of explanation under subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, water charges payable by the tenant to the landlord can be deemed as rent and in t' ‑is case it is a common ground between the parties that the water charges were payable directly by the tenant to the authorities concerned and not to the landlord. It is, however, not denied that there was a joint water connection of the entire building bearing No. 33‑C, Com mercial Zone, Liberty Market, Gulberg‑111, Lahore, of which the tenanted premises form a part. The tenant obtained independent connection for the tenanted premises after 2nd March, 1979. He even did not pay water charges to the authorities concerned during the period of more than 30 months i.e. from July, 1976 to February, 1979. It has been pleaded on behalf of the petitioner that he could not pay the water charges earlier because no bill was provided to him by the landlord. As observed earlier, there could not have been any independent bill for water charges in regard to the premises under tenancy with the petitioner because there was no independent connection for the said premises, till March, 1979. He was, therefore, under obligation to pay the water charges at the rate of 20Y. of the rent at which rate he ultimately paid to the landlord for the period from July, 1976 to March, 1979 vide receipt, exhibit R. 1., In the circumstances, the petitioner has rightly been held as defaulter on account of non‑payment of water charges for a pretty long period of more than 30 months.

12. In view of the above conclusions, there is no merit in the under consideration Constitutional Petition which is, therefore, dismissed leaving the parties to bear their own cots. M. Y. H. Petition dismissed.