1999 PLP 825 (YLR)

Date of hearing: 6th October, 1998. This first rent appeal is directed against the order, dated 2‑9‑1989 passed by the learned Vth Senior Civil Judge and Rent Controller Karachi East whereby ejectment application under section 15 of Sindh Rented Premises Ordinance 1979 (hereinafter referred to as the Ordinance XVII of 1979) was allowed. The facts giving rise to this appeal are that the respondent obtained on lease plot admeasuring 1736 square yards from the President of Pakistan, at Dadabhoy Noorji Road Karachi and as permitted in the lease, dated 12‑7‑1962, let out the same on rent to the appellant. In the year 1980 the respondent sought ejectment of the appellant on the ground of default in payment of rent. Learned Rent Controller allowed the application and directed appellant's eviction from the demised premises. The appellant challenged the impugned order by filing this appeal which was allowed on the ground that the subject land was owned by the Federal/Government, and as such the Sindh Rented Premises Ordinance, 1979 was not applicable in view of section 3(1) of that Ordinance. It was therefore, held by this Court that the application of the respondent under section 15 of the Ordinance was not competent. The respondent, thereafter, approached the Honourable Supreme Court, which set aside the order of this Court and remanded the appeal for decision on merits. The only question now for consideration before this Court is whether the finding of the Rent Controller that the respondent committed default in payment of rent is according to law. It was contended by the learned counsel for the appellant that there was a compromise between the parties in ejectment proceedings previously instituted by the respondent and one of the terms of the settlement was that the respondent would first pay rent to Government and show the receipt of the rent so paid to the appellant which thereupon would pay the rent to the respondent. The appellant admits that the rent for the period mentioned in the application vas not paid but according to him this non payment was due to the reason that the respondent failed to produce the required receipt in violation of the compromise. The compromise application is on the record but there is no such condition noted therein. On the contrary it is specifically mentioned in clause (2) of the application that the monthly rent would be payable on or before 10th of each calender month. It is further stipulated by the said clause that the appellant would not commit default in the payment of rent. The appellant's counsel referred to clause (4) of the application but that does not support his contention. There is no such condition in that clause to demonstrate that the respondent would not be entitled to receive the rent unless he was able to show to the appellant the receipt of rent paid by him to the Estate Officer, Government of Pakistan. The learned counsel for the respondent on the other hand submitted that there was no question of the respondent entering into such an arrangement with the appellant which as a tenant was liable to pay the rent as and when it fell due. According to him any agreement between the landlord and tenant which is contrary to the provisions of law is void. He also referred to a judgment of the Honourable Supreme Court reported as E.A. Evans v. Muhammad Ashraf PLD 1964 SC

536. The Honourable Supreme Court while considering the validity of a compromise between the landlord and tenant quoted with approval the following para. from Megarry' s Rent Act 9th Edition page 14 stated as under: "Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise; nor can the doctrine of estoppel exclude the Acts. Ail agreement by a tenant to pay more than the rent permitted by the Acts, or obliging him (even indirectly) to give up possession where the Acts do not require him to do so, is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord." The next case relied upon in this behalf by the respondent's learned counsel is reported as Muhammad Yousuf v. Abdullah PLD 1980 SC

298. In that case also certain provisions in the lease agreement were held to be illegal because they were in conflict with the erstwhile West Pakistan Urban Rent Restriction Ordinance, 1959. According to section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 the Rent Controller shall make an order directing the tenant to induct the landlord in possession of the premises if he has failed to pay the same within 15 days after the expiry of the period fixed by mutual agreement between the landlord and tenant for payment of rent or in the absence of such agreement within 60 days after the rent has become due for payment. It is, thus, clear from this provision that it is the liability of the tenant to pay rent to the landlord in the manner indicated in the aforesaid provision to avoid commission of default and to protect himself against the order of ejectment. This being the legal position, the respondent can not seek protec?tion behind such an agreement or practice if at all it was there, although I have already come to the conclusion that there was no such provision applicable for compromise. More?over, I also do not find that any such practice was pleaded or proved by the appellant. The learned counsel for the appellant referred to a judgment of the Honourable Supreme Court reported an Mst. Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190 but that case does not support his contention. On the contrary it has been held in that case that the regulation of the relationship of landlord and tenant particularly vis‑a‑vis the determination and payment of rent as also the eviction shall be governed by the covenants contained in the agreement provided that those covenants do not come in conflict with the provisions of rent laws and in case of conflict provision of that law shall prevail notwithstanding any term of agreement to the contrary. The up shot of the above discussion is that this appeal is without any merit and is hereby dismissed with cost. The appellant is however, allowed sixty (60) days time to vacate the demised premises. Q.M.H./M.A.K./P‑70/K ???????????????????????????????????????????????????????? Appeal dismissed.