P L D 1962 (W (PLP)

MASUD ARMED, J.‑This is a Letteis Patent Appeal against a judgment of Single Judge, who has granted the respondents, Haji Abdul Karim and Haji Muhammad Shall, a decree for Rs. 23,375, on account of rent for a period of 17 months, and also for eject ment of the appellants, Messrs Haji Dawood & Co. from the premises in dispute. A decree for mesne profits, at the rate of Rs. 1,375 per mensem, from June 1954, until the date of delivery of possession has also been granted to the respondents, by same judgment.

2. The facts, briefly stated, are that on the 11th July 1950, a document which is described as receipt, but which, in fact is an agreement of lease, was executed by the appellants in favour of the Karachi Syndicate Ltd. who, at that time, owned the propery in dispute. This document, which was signed by both parties but has not been registered, provided for the creation of a tenancy in favour of the appellants for a period of five years, on a monthly rent of Rs. 1,

250. A sum of Rs. 30,000 was paid as advance rent, which was to be adjusted against the rent payable, at the rate of Rs. 500 per mensem. One of the terms of this lease was that after expiry of the period of five years, if the appellants so desired, they could continue to occupy this property as tenants, on a rent of Rs. 1,375 per mensem. After this term of the lease expired on the 11th of July 1955, the appellants continued to occupy the property in dispute as tenants and paid rent at tire enhanced rate of Rs. 1,375 per mensem, to the landlords. This property changed hands on the 14th February 1957, by reason of sale in favour of the respondents. After the sale, the appellants paid rent to the respondents, at the enhanced rate, until the 31st December 1957. Disputes started between the parties in the year 1958, and on the 29th January of that year, a notice (Exh. 16) was served by the respondents, on the appel lants, calling upon them to pay a sum of Rs. 8,250, on account of rent which was due from them and also intimating them that their tenancy shall stand terminated with effect from the 28th February 1958. This notice was replied to by the appellants on 30th April 1958, by means of their Advocate's letter (Exh. 18) with which was enclosed a cheque for Rs. 6,875, and in which a promise was made that the rent would be maid regularly in future, although according to them, the enhancement of rent was " wholly against law ". On the 24th of April 1959, another notice (Exh. 29), was sent by the respondents' counsel to the appellants, in which a demand for payment of Rs. 22,000, which was due as rent, was made, and the appellants were informed that they had " forfeited their right to remain a tenant of the premises " in dispute and should, therefore, hand over possession to them on the 1st of June 1959. On the 14th July 1959, the appellant sent a letter (Exh. 21) to the respondents, along with a cheque for Rs. 5,000 as a part payment of rent. They also promised to pay Rs. 5,000, each month, until the arrears were cleared off. This letter was replied to by the respondents by means of their Advocate's letter, dated the 16th July 1959 (Exh. 26). The cheque for Rs. 5,000 sent by the appellants was returned to them and they were told that if possession of the premises was not handed over to them, a suit would be filed.

3. The suit, out of which this appeal has arisen, was filed on the 20th July 1959. No mention was made in the plaint of the tenancy which had been created by the predecessor‑in‑interest of the respondents, and was simply stated that the property in dispute had been let out on a monthly rent of Rs. 1,375, and that a sum of Rs. 23,375, on account of arrears of rent, for a period of seventeen months ending the 31st May 1959, was due from the appellants.

4. The appellants, in their written statement, which was filed on the 8th September 1959, did not deny the fact of the tenancy, and stated the circumstances under which the property in dispute had been leased out to them. Their defence, in short, was that not more than Rs. 1,250 per mensem, could be recovered as rent from them, and that as the increase in rent was illegal, and as they had always been ready and willing to pay the original rent of Rs. 1,250 per mensem, their ejectment could not be ordered. It would be useful, at this stage, to reproduce a portion of the written statement, which was in the following words :‑ "The true facts are that the defendants took the premises on lease from the previous owners thereof, viz , Karachi Syndicate Ltd., under a deed of lease date) 15‑8‑1950 on an agreement rent of Rs. 1,250 per month. The defendant paid to the lessor a sum of Rs. 30,000 as advance rent which was to be adjusted against future rents at the rate of Rs. 500 per month. . . . . .On the expiry of the term of 5 years, the defendants continued to occupy the premises and paid rent at the enhanced rate of Rs. 1,375 from 16‑7‑1950 to June 1957 to the previous owners. Thereafter the plaintiffs purchased the building from Karachi Syndicate and the defendants continued paying rent to the plaintiffs from July 1957 to 31‑12‑1957 at the same enhanced rate of Rs. 1,375 per month. It is submitted that the above said agreement for payment of increased rent in consideration of the continuance of tenancy is illegal and not binding on the defendants . . . . . . . . . . . the defendants have all along been ready tend willing to pay rent at the rate pf Rs. 1,250 per month . . . . . . The plaintiffs refused to accept the rent at that rate and demanded rent with illegal increase. This is how the rents accumulated in spite of the readiness and willingness of the defendants to pay the same."

5. The following issues, which arise out of the pleadings of the parties, were framed by the learned Single Judge :‑ (1) What is the rent of the premises in suit? (2) Whether the agreement for increase in rent is illegal and not binding on the defendants ? If so, what is its effect ? (3) What is the amount of arrears against the defendants ? (4) Whether the defendant was not ready and willing to pay the rent ? (5) Whether the tenancy of the defendant has been determined by notice ? (6) Whether the notice is invalid and improper ? If so, what is its effect ? (7) Whether the plaintiff is entitled to a decree for possession (8) To what arrears of rent and mesne profits, if any, are the plaintiffs entitled ?

6. Only two witnesses, Haji Muhammad Shall, one of the two respondents, and Syed Badshah Hussain Rizvi, manager of the appellants, were examined at the trial. A number of documents were also produced, some of which have been referred to above.

7. On the first three issues, the learned Single Judge found that the rent of the premises was Rs. 1,375 per mensem; that the increase in rent was not illegal and was binding on the appellants ; and that the latter owed a sum of Rs. 23,375, on account of the arrears of rent, for the period ending with the 31st of May 1958. On issue No. 4, the finding was that the appel lants were " persistent defaulters " in the matter of payment of rent, and that they "were not ready and willing to pay the rent and were habitual defaulters." On issue No. 7, the finding given was that although the appellants had deposited the whole of the rent due from them after this suit was filed, they had committed breach of one of the conditions of tenancy, and hence they were liable to be ejected in accordance with the provisions of section 10 of the Karachi Rent Restriction Act, 1953. As a result of these findings, the respondents' suit, as stated above, was decreed with costs.

8. The learned counsel for the appellants raised only the following four points before us:- (i) The agreement with regard to the Increase in rent from Rs. 1,250 to Rs. 1,375, per mensem, was void, in view of the provisions of section 9 of the Karachi Rent Restriction Act, 1953. (ii) It had not been proved that the appellants were not ready and willing to pay the rent due from them, and that as the whole of the rent was paid after the suit had been filed, no order for their ejectment could be passed. (iii) The relief against forfeiture of tenancy should be granted to the appellants under section 114 of the Transfer of Property Act. (iv) After the appeal was filed, the Court passed an order, with the consent of the parties, and hence, by reason of that order, a fresh tenancy had been created.

9. So far as the last of the four points is concerned, after this appeal was filed, the appellants applied for stay of execution of the decree, and with the consent of the parties, the Court passed the following order on the 14th June 1960:‑ " By consent, the appellants to pay the decretal amount within the time allowed by the original Court and he should continue to deposit in Court the monthly rent from month to month as the same accrues. On this condition the execution of the decree for ejectment is stayed." This order was, presumably, passed under Order XLI, rule 5 of the Code of Civil Procedure and would remain in operation only during the pendency of the appeal. By no stretch of reasoning can it be held that since the respondents agreed to have the execution of the decree stayed on certain terms, there was a novation of the contract and, hence, a new tenancy between the parties has been created. The contention raised by the appellants' counsel being without force, is, hereby, overruled.

10. So far as the third point is concerned, in our opinion, section 114 of the Transfer of Property Act has no application to this case. That provision of law would be applicable only where the lease had been determined by forfeiture, on account of non -payment of rent, and not where it had been determined by a notice to quit, as in the present case. The agreement to lease did not provide for the forfeiture of the tenancy on account of non‑payment of rent, and although in the notice dated‑the 28th of April 1959, (Exh. 29) the word " forfeiture " has been used in fact, there was no forfeiture of the lease and, hence, this Court cannot giant the appellants any relief under section 114 of the Transfer of Property Act.

11. Before the first of the four points raised by the appellants' counsel is taken up, it would be useful to refer, briefly, to the scheme of the Karachi Rent Restriction Act, 1953. This Act, as its preamble shows, was enacted for " controlling the rents chargeable for such accommodation and for preventing eviction in certain cases ". ` Fair rent ' has been defined in clause (2) of section 2 of the Act, and various standards, for its fixation, have been laid down in this clause. Under section 4 of the Act, the Controller is empowered to entertain applications for determining fair rent. He can also take such action, on his own motion. In both cases, the Controller cannot determine fair rent after the lapse of a period of four months next after the date on which the premises are first occupied. Once fair rent has been determined section 7 of the Act prohibits payment of any rent in excess of fair rent, and any agreement to that effect is null and void Further, any sum paid in excess of fair rent can be refunded to the person by whom it was paid. Section 8 of the Act, which is a sort of an exception to section 7, provides for an increase of rent on account of payment of Municipal rates, taxes, etc. Next comes section 9, which prohibits a landlord, tenant or occupant from charging any fine, premium, etc., in addition to the rent as a consideration for the grant, renewal or continuance of a tenancy. Any payment, so made, can be recover ed by the person by whom it was made. Subsection (1) of section 9, which is relevant for the purpose of deciding the question of the legality of enhanced rent, is worded as follows :‑ "No landlord, tenant, occupant or any person acting on their behalf shall, in consideration of the grant, renewal or continuance of a tenancy of any premises, require the payment of any fine, premium, Pagri or Mithai or any other like sum in addition to the rent." Next comes section 10, which prevents the eviction of a tenant, except under certain circumstances. As this section has an important bearing on the decision of the second question raised by the appellants' counsel, it would be useful to reproduce it. The first two subsections read as under :‑ "(1) Save as hereinafter provided, no order for the recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under this Act and performs the other conditions of the tenancy. (2) Nothing in subsection (1) shall apply where the landlord has obtained a certificate from the Controller certifying‑ (a) that the tenant has committed any act contrary to the provisions of clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to adjoining or neighbour ing occupiers, or (b) that the tenant has sublet the premises without the per mission of the landlord, or (c) that the premises are reasonably and in good faith required by the landlord‑ (i) for the erection or reconstruction of a building, or (ii) for his own use or for the use of any person for whose benefit the premises arc held, or (d) that the tenant has infringed any conditions of the tenure on which the premises are held by the landlord."

12. The validity of the respondents' claim for rent, at the rate of Rs. 1,375, per mensem, is challenged by the appellants on the ground that the increase in rent from Rs. 1,250 to Rs. 1,375, p.m. was made in consideration of renewal of the lease and that this claim is hit by subsection (1) of section 9 of the Act and, therefore, not more titan Rs. 1,250 p.m. could be recovered from the appellants. The learned counsel for the respondents, In reply contended, firstly, that section 9 is con trolled by section 7 of the Act, and only any rent in excess of fair rent is irrecoverable, and secondly, that this provision of law does not prohibit the increase of rent; it only prohibits the recovery of " any fine, premium, Pagri or Mithai, or any other like sum in addition to the rent." lie further contended that as the document, dated the 11th July 1950, had not been registered in accordance with law and as by means of it tenancy for a period of more than one year was created, it could not be used in evidence for the purpose of showing that any increase in the rent was made.

13. So far as the last mentioned contention is concerned, the same, in our opinion, has no force. It is, no doubt, true that this document, which has been described to be a receipt is, in fact, a lease deed, and required compulsory registration under section 17 of the Registration Act. In spite of non‑registration, this document can be used for a collateral purpose, under the proviso of section 49 of the Registration Act and can be looked at for the purpose of determining whether an increase in rent was made, and if so, for what reason. Moreover, one of the respon dents, who appeared as a witness, did not dare to deny the allegation which had been made by the appellants in the written statement, with regard to the circumstances under which the lease was granted and then renewed. Further Syed Badshah Hussain Rizvi, who appeared as a witness for the appellants at the trial deposed that the rent was increased from its. 1,250 to Rs. 1,375 per mensem " on the expiry of the lease period which was five years". This statement stands unrebutted, and even if the lease deed (Exh. 2.8) is held to be inadmissible for the purpose of showing the circumstances under which the lease was granted, in the presence of the unrebutted testimony of the appellants' witness, it lead to be held that there was in fact, an increase in the rent from Rs. 1.250 to Rs. 1,375 per mensem, after the first period of lease had expired.

14. As to the contention that section 9 is controlled by section 7 of the Act, the same, is our opinion, is without any force. Both these provisions of law are independent of each other, and the mere fact that if "fair rent" is not determined under section 7 of the Act, would not mean that a landlord is entitled to charge any amount of rent from the tenant when renewing, or continuing, a tenancy. If the intention of the Legislature had been that section 9 of the Act would apply only when fair rent of any property has been determined under section 7 of the Act, instead of using the expression "rent" in section 9, the expression "fair rent" would have been used. As this was not done, we are of the opinion, that "rent" within the meaning of section 9 does not mean "fair rent", and even if fair rent of any property has not been determined, a person can take benefit of the provisions of section 9 of the Act, provided all the conditions laid down therein are fulfilled.

15. The second contention of the respondent's counsel, namely, that this provision of lace prohibits the payment of any fine, premium, Pagri or Mithai, or any other like sum, in addition to the rent, but does not prohibit the payment of any rent even if the same be more than the rent previously paid, is also, in our opinion, without any force. If this contention be accepted, it would mean that although a person may not be entitled to charge any fine, premium, Pagri or Mithai, he would be at liberty to charge any amount periodically describing it as rent, although that rent may be much more than that paid before the lease was renewed, or continued. This, in our opinion, could not be the intention of the Legislature, and the expression "rent" mentioned in section 9 of the Act can only mean the rent which was paid at the time when the lease was granted and before it was renewed or continual. In the appellants had agreed from the very, beginning to pay Rs. 1,374 per mensem, as rent of the property in dispute, and if they had not taken any steps, within the period of four months mentioned in section 4 of the Act, for having fair rent of the property determined, they could have had no case, and the rent agreed to be paid by them could be recovered by the respondents. The position here is entirely different, because when the lease was first granted, the rent agreed to be paid was Rs. 1,250, per mensem, and it was only at the time when the appellants exercised the option of having the lease renewed that the rant was increased from Rs. 1,250 to Rs. 1,375, per mensem. As the increase in rent was made in consideration of renewal or continuance of the lease, the case, in our opinion, is hit by section 9 (1) of the Act, and although the increased amount is also shown to be "rent", it is not recoverable by the appellants. In coming to this conclusion, we are fortified by the fact that subsection (3) of section 9 of this Act saves agreements with regard to residential premises which had been entered into prior to the 1st of December 1941, and those with regard to other premises which were entered into prior to the 1st of December 1942. If the intention of the Legislature had been to save all agreements which had been executed prior to the coming into force of this Act, they would have worded subsection (3) differently, and not limited the savings clause only to certain agreements. As the agreement for lease entered into between the appellants and the respondents' predecessors‑in‑interest had not been executed prior to 1st of December 1942, it is not saved by this provision of law and, hence, only the rent which was originally agreed to be paid by the appellants can be recovered from them.

16. The learned counsel for the respondents, in this con nection, referred to a case decided by the Court of Appeal, Sharp Brothers & Knight v. Chant ((1917) 1 K. B 771). The facts of this case are that in the year 1907, the defendant took on lease some tenement at a rent of 9s. 6d. a week. In the month of March 1915, the rent was raised from 9s. 6d. to 10s. a week. On the 23rd December 1915, the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915 came into force. Subsection (2) of section 1 of that Act, which prohibited payment of any fine, etc. was in the following words: "(2) A person shall not in consideration of the grant, renewal or continuance of a tenancy of any dwelling‑house to which this Act applies, require the payment of any fine, premium, or other like sum in addition to the rent, and where any such payment has been made in respect of any such dwelling‑house after the twenty‑fifth day of November 1915, then the amount shall be recoverable by the tenant, by whom it was made from the landlord . . . . . . . ". The tenant continued to pay rent at the enhanced rate of 10s. a week until the 31st January 1916, i.e., for a period of about five weeks after the Act had come into force, The landlord, however, did not hold out any threat to the tenant that if he did not pay the increased rent, he would be evicted. The tenant, on coming to know of the provisions of this Act, demanded the return of the rent which had been paid in excess of the rate originally payable. The Court held that although, to some extent, the provisions of the Rent Act were retrospective, there was nothing illegal about the agreement to pay enhanced rent, because at the relevant time this law was not in existence, and as there was no provision in the Act that increased rent shall not be received and the Act only made the increase `irrecoverable' by distress or otherwise, the amount paid by the tenant in excess could not be recovered by him from the landlord. In our opinion, the views expressed in this case have no application to the facts of Vie present case for two reasons: firstly, in the reported case it was not held that the increase in rent was made as a consideration for the continuance of the tenancy ; secondly, what that Court held was that the rent paid in excess of the original rate was not recoverable by distress or otherwise, and as the tenant had voluntarily made that payment he could not recover the same from the landlord. In the present case, the tenants, namely, the appellants, were given the option to have the tenancy renewed only if they agreed to pay rent at the enhanced rate of Rs. 1,375 per mensem. It is, therefore, obvious that the increase in rent was made in consideration of the renewal or continuance of the tenancy and hence it is hit by section 9 (1) of the Act.

17. Coming now to the second point, the finding of the learned Single Judge to the effect that the appellants were "persistent defaulters", was not seriously challenged by the appellants' counsel. From the short history of this case, which has been reproduced in an earlier part of this judgment, it would appear that no rent for the period subsequent to the 31st of December 1957, was paid by the appellants. By the 29th of January 1958 a sum of Rs. 8,250 had become due from them, on account of arrears of rent, and by the 24th of April 1959, this amount had increased to Rs. 22,000, although, in the meantime, a cheque for Rs. 6,875 had been sent by them to the landlords. The plea raised by the appellants, in paragraph 3 of the written statement, was that they fell into arrears because although they were prepared to pay rent at the rate of Rs. 1,250, per mensem, the respondents did not accept rent at that rate. There is nothing, however, in any of the letters addressed by the appellants to the respondents to show that, at any stage, they offered to pay the whole of the rent due from them, at the original rate of Rs. 1,250 per mensem ; on the other hand, a reference to the letter of the 14th of July 1959 (Exh. 21) would show that the appellants were short of money and were not in a position to pay the whole of the rent which had become due from them. The learned Single Judge was, therefore, right in coming to the conclusion that the appellants had not been ready and willing to pay the rent as soon as the same had become due. This finding of fact, however, is not sufficient to dispose of the point raised by the appellants' counsel, because his contention was that the deciding date, for the purpose of payment of rent, is the date when the Court is called upon to pass an order for recovery of possession, and is not tire date when the rent had become due. According to the learned counsel, if before such an order is passed, a tenant pays, or is ready and willing to pay, the rent due from him, he cannot be evicted from the property in his occupation and that previous defaults, if any, in the payment of rent, or in his "readiness and willingness" has no effect on the case. The learned counsel contended further that if the intention of the Legislature had been that any previous default committed by the tenant, in payment of the rent, would deprive him of the benefit of subsection (1) of section 10 of the Karachi Rent Restriction Act, 1953, instead of using the present tense in this provision of law and saying "pays or is ready and willing to pay the rent payable" the Legislature would have used the past tense and would have said "has not paid or was not ready and willing to pay the rent payable" or employed some other such language, and as this was not done the intention seems to be quite clear that any previous default committed by the tenant in the payment of rent or in his readiness or willingness to pay the rent would not deprive him of the benefit of this provision of law.

18. To support these contentions the learned counsel for the appellants referred to S. K. Shaw & Brothers v. Brij Raj Krishna and another (A I R 1949 Pat. 474), in which it was held that: "Where a tenant offers to pay all the rent due from him before the date of the eviction order, he is not in arrear and there is no non‑payment of rent. Eviction order, if passed in such circumstances, will be in excess of the special jurisdiction conferred by the Act on the Controller." In this case the relevant law was contained in section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act of 1947. Subsection (1) of this section prevented the eviction of a tenant on the expiration of the period of tenancy, or for non‑payment of rent, or for breach of any of the conditions of tenancy. Subsection (2) of this section which empowered the Controller to order eviction of a tenant, on the application of a landlord, was in the following words: "A landlord who seeks to evict his tenant under subsection (1) shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable oppor tunity of showing cause against the application, is satisfied that the tenant is liable to be evicted under the provisions of subsection (1), he shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application." This provision of law did not specify the circumstances under which a tenant was liable to be evicted and in deciding this question the Court came to the conclusion that the Legislature, undoubtedly, had intended to give effect to the express provisions of section 13 of the Bihar House Rent Control Order, 1942, when enacting section 11 of the Act of 1947. The first mentioned provision of law was in the following words: "No order for recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy." The words italicised by us above are similar to those employed in subsection (1) of section 10 of the Karachi Rent Restriction Act 1953, and, if the reasoning of their Lordships is accepted as correct, it would mean that a tenant who pays rent or is ready and willing to pay rent before an order for eviction is passed, cannot be evicted from the property in his occupation. The relevant section of the Bihar House Rent Control Order, 1942, had not been made a part of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, but on the basis of the language employed in the Order of 1942, it was held that the tenant could not be evicted, because he had paid all the rent due from him before the Controller was called upon to pass the order of eviction.

19. The second authority relied upon by the learned counsel is reported as I. J. Cohen v. S. E. Hottinger (A I R 1922 Cal. 380). The facts of this case are that the relevant statute (Calcutta Rent Act, 1920) gave to a mere monthly tenant considerable fixity of tenure upon a condition, namely, that he was a rent paying‑tenant and was not a defaulting‑tenant. Section 11 of the Act laid down that: "No order or decree for the recovery of possession shall be made so long as the tenant pays rent to the full extent allow able by this Act and performs the conditions of the tenancy." This provision of law was, however, qualified by a subsequent clause which laid down that no tenant shall be entitled to the benefit of this section "Unless he pays the rent due by him to the full extent allowable by this Act within the time fixed in the contract with his landlord, or, in the absence of any such contract, by the 15th day of the month next following." It was held that as the tenant was in arrear and had not paid rent in time he was not entitled to the benefit of the provisions of section 11 of the Act. This decision was based on the ground that the relevant law had fixed the period within which the tenant was required to pay the rent due from him and it was only then that he could claim the benefit of the section which prevented his eviction. Although in the relevant clause which has been reproduced above, the present tense had been used, the language employed indicated clearly that any default committed by the tenant In the payment of rent, when it became due, disqualified him from seeking the benefit of the section. It was, therefore, not surprising that eviction of the tenant from the property occupied by him was held to be justified. The views expressed in this case are relevant only for the purpose of showing that if the intention of the Legislature, in the present case, had been that any default committed by the tenant, in the payment of rent, should deprive him of the benefit of the eviction clause, the Legislature would nave either used the past tense In the relevant clause, or would nave worded it differently, as was done in the Calcutta case, and since as neither the past tense has been used in section 10 (1) of the Karachi Rent Restriction Act, 1953, nor the language indicates that the previous default, if any, committed by the tenant, would deprive him of the benefit of this provision of law, his eviction can be ordered only if he does not pay, or is not ready or willing to pay the rent due from him, at the time when the Court is called upon to pass an order of eviction.

20. The learned counsel for the respondents contended that the appellants could take benefit of the provisions of section 10 (1) of the Karachi Rent Restriction Act, 1953, only If they had paid or were ready and willing to pay the rent due from them, as soon as it became payable, and since they persistently made default in the payment of rent they are liable to be evicted from the property in their possession. He contended further that the payment of rent made after the suit had been filed against the appellants could not prevent their eviction. To support these contentions the learned counsel referred to Mathuradas Maganlal v. Nathubhai Vithaldas (A I R 1923 Bom. 387), Ismail Dada Bhamani v. Bai Zuleikhabai (A I R 1944 Bom. 181) and Alibhoy Adamjl Sheikh Jiwanji v. Gordhandas Jeenabhoy (A I R 1929 Sind 13) and an unreported judgment of the Sind Chief Court, in Execution Application No. 518 of 1946 decided on the 7th January 1947. In the first mentioned case, which was dealt with by a Single Judge, the question requiring decision was as to whether payment of arrears of rent before a suit for ejectment was filed was a condition precedent to claim the protection under the Bombay Rent (War Restrictions) Act, 1918. Section 9 (1) of the said Act, which was similar to section 10 (1) of the Karachi Rent Restriction Act, 1953, was in the following words: "No order for the recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Act and performs the conditions of the tenancy." Relying on Bevis v. Carman ((1920) XXXVI T L R 396), it was held that if a tenant has made any default in paying the rent and was in arrears the Court can make an order for recovery of possession, even if he brings arrears of rent into the Court. In the other three cases, referred to above, on the basis of this very decision, similar views were expressed. As the decision in Mathuradas's case was based primarily on the reasoning employed in Bevis v. Carman it would be necessary to examine this case fully, for finding out whether the views expressed therein were correctly understood by the learned Single Judge who decided Mathuradas's case and whether those views are applicable to the facts of the present case. The facts of this case were that the defendant was a tenant of a dwelling house, within the meaning of Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, and had not paid the rent due under the tenancy agreement. Upon being served with a writ for recovery of possession of the premises be tendered the rent in arrears. The plaintiff's case was that the tenancy was duly determined by notice to quit expiring on the 25th December 1919, and also by reason of non‑payment of the quarterly rent. The writ in the action was issued on the 3rd February 1920. The defence was that the rent due on the 8th February 1920, was tendered to the agent of the plaintiff who refused to take it. It was claimed that by reason of the provisions of the Increase of Rent and Mortgage Interest (War Restrictions) Acts, 1915 to 1919, the landlord was entitled to an order for possession of the premises. The relevant section of this Act, namely, 1(3), was in the following words: "No order for the recovery of possession of a dwelling house to which this Act applies for the ejectment of a tenant there from shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and performs the other conditions of the tenancy." The Court held that because the tenant was in arrears the landlord was entitled to an order for recovery of possession. The following observations at pages 396 and 397 of the reported judgment are very significant: "It seemed to him (his Lordship) that if the defendant wanted to put himself within the protection of the Acts he should, on receiving the notice, have paid his arrears of rent forthwith, and he would have paid rent for the last quarter duly according to the agreement. But he did not pay the balance of his June rent till much later, and he did not pay his September rent till December 29 ; that is not until after the tenancy had expired by effluxion of time in pursuance of the notice. Then he did not tender the December rent until after the writ in the action had been served. Was it possible to say that, in these circumstances, he had continued to pay his rent, and perform the other conditions of the tenancy, so as to bring himself within the protection of section 1 (3) of this Act 7" As under the relevant provision of law the tenant was given protection against the eviction only so long as he "continues to pay the rent", it was not surprising that the Court came to the conclusion that the tenant was not protected, as he had not so "continued to pay rent." Although the Legislature had not used the past tense in the relevant provision of law the employment of the word "continues" made it absolutely clear that only a tenant who paid the rent regularly was to be given protection and not a tenant who offered the rent after he had committed default and an action had been brought against him.

21. The position in the Bombay case was entirely different, because the word "continues" did not find any place in the relevant section and, with all due respect to the learned Judge who decided that case, the employment of the present tense in the section was not without significance. If the intention of the Legislature had been that any default committed by the tenant, in the payment of rent, as soon as it became due, would have the result of depriving him of the protection afforded by this law against eviction, the relevant section would have been differently worded and either the Legislature would have used the past tense, or would have, at least, made it clear by using words like "continues" that a tenant who did not pay the rent regularly would not be afforded any protection. This aspect of the matter was brought to the notice of the learned Judge, who rejected the contention by making the following observations: "Mr. Campbell contends that there is a distinction between section 9 (I) of the Bombay Act and the English section in that the English section uses the words "continues to pay" the rent, instead of the word "pays" which is used in the Indian section. But I do not think that the words "continues to pay" import any distinction. Whether the words are "continues to pay" or "pays," the real question is whether they refer to the time anterior to the filing of the suit or the time subsequent thereto. I think that in both the English and the Indian sections the words "continues to pay" and the word "pays", respectively, refer to the time anterior to the filing of the suit."

22. With all due respect to the learned Judge, we are unable to accept his reasoning and are of opinion that there is a world of difference between the words "continues to pay" and "pays"; the first indicate some kind of continuity of action, while the second indicates something which is to be done pat a particular time. In the present case, the words "pays or is ready and willing to pay" refer, in our opinion to the date when the Court is called upon to pass an order for recovery of possession and doff not refer to any anterior period and, hence, if at that time the tenant pays the rent due from him, or is ready and willing to pay it the Court cannot pass an order for his eviction.

23. It may here be pointed out that section 10 (1) of the Karachi Rent Restriction Act, 1953, is an exact copy of sec tion 9 (1) of the Sind Rent Restriction Act, 1947, which, in its turn, was based on section 10 (1) of the Punjab Urban Rent Restriction Act, 1941. In all these provisions of law the words used are "so long as the tenant pays or is ready and willing to pay the rent." The Punjab Act of 1941 had been repealed by a similar Act of 1943, and the latter by another Act which came into force with effect from the 14th April 1947, i.e., about a fortnight before the Sind Act of 1947 was promulgated. The framers of the last mentioned Act, however, failed to take note of the fact that the Punjab Act of 1941 had been drastically modified when, in that Province, the Act of 1947 was promulgated. Section 13 of that Act, which replaced section 10 of the earlier Act was altogether differently worded. This provision of law was in the following words:‑ "13 (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that‑ (i) the tenant has not paid or tendered the rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or, in the absence of any such agreement, by the last day of the month next following that for which the rent is payable . . . . . . . . . . . . . . the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reason able time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate." This provision of law differed from section 10 (1) of the Act of 1941 in several respects : Firstly, the words "the tenant pays or is ready and willing to pay" were replaced by the words "the tenant has not paid or tendered the rent due by him". In other words the present tense was replaced by the past tense. Secondly, the provision regarding "readiness and willingness" was omitted, instead an obligation was placed on the tenant to tender the rent when it became due. Thirdly, a definite period was prescribed during which the rent was to be so paid or tendered. The Act of 1947 was replaced by other enactments ; the last of them being Ordinance VI of 1959. There was, however, no basic change so far as the phraseology of section 13 was con cerned and this section, in a modified form, is still on the Statute Book. It appears' to us that the framers of the Act of 1947 realised the difficulty which the landlords experienced in the matter of eviction of those tenants who were defaulters, and who, after proceedings for ejectment were instituted against them, tendered the rent due from them, with a view to prevent their eviction. The Legislature, therefore, with a view to keep an even balance between landlords and tenants modified this provision of law and, while still giving protection to honest tenants, pro tected also the landlords from unscrupulous tenants by providing that if the rent due by them was not paid within the specified period they would be liable to be ejected. Inspite of this change of law, which took place in the Province from where the language of section 10 (1) of the Karachi Rent Restriction Act, 1953, was borrowed, no such change was made so far as Karachi was concerned, which continued to be governed by the law which was based on the Sind Act of 1947. The framers of the Karachi Rent Restriction Act, 1953, could not have been unaware of the change of law which had taken place in the former Punjab Province and if they also were of the same opinion and intended to take away the protection which that law gave to tenants they would have amended section 10 (1) accordingly. As this was not done, it would not be unreasonable to presume that they were satisfied with the law as it was, although that law gave complete protection to those tenants who paid the whole of the rent due from them, or were ready and willing to pay that rent, before the Court was called upon to pass an order of eviction.

24. Before ending this discussion it would be necessary to refer the three other authorities relied upon by the respondents' counsel. These are Brewer v. Jacobs ((1923) 1 K B 528) ; Bird v. Hildage ((1947) 2 All B L R 7) and Dellenty v. Pellow ((1951) 2 K B 858). In the first mentioned case the plaintiff had let out a dwelling house to the defendant for five years. At the expiration of the term, the defendant remained in possession as a statutory tenant. He, subsequently, became in arrear and also committed a breach of the covenant. The plaintiff issued summons for possession on grounds of non-payment of rent and breach of terms of the tenancy. Subsequent to these summons, but before the trial, the defendant paid the rent due from him into the Court. The matter came up, in appeal, to the King's Bench, and it was held that the defendant was entitled to remain as statutory tenant on condition of observ ing the conditions of the tenancy which he had broken and, therefore, the County Court Judge was right in not exercising the discretion in his favour. The relevant law, in this case also, was the Increase of Rent and Mortgage Interest (War Restric tions) Act, 1915, and, as stated earlier, that Act protected those tenants only who continued to pay rent. The order passed by the Court was, therefore, fully justified.

25. The facts of the next case were that the statutory tenant of a dwelling house had held as tenant from year to year. The rent was payable quarterly, on the usual quarter dates, but the landlord had been in the habit of allowing the tenant to make payments a month or so after the due dates. The tenant failed to pay the rent due on tile 25th March 1946 and tendered it to the landlord's solicitors on the 16th May, on which the landlord sent the particulars of tile claim to the County Court. The solicitors, on instructions, refused to accept the payment, and on May 21, 1946, the plaint was entered in the County Court hooks. It was conceded that May 21 was the date of the commencement of the proceedings. It was held that where a tender of rent was made after the due date, but before the com mencement of proceedings for possession, such tender prevented rent being "lawfully due" from the tenant to the landlord, within the meaning of para. (a) of Schedule 1 to the Act of 1933, unless time has been made the essence of the contract. The relevant paragraph of the Schedule was in the following words :‑ "A Court shall, for the purposes of section 3 of this Act, have power to make or give an order or judgment for the recovery of possession of any dwelling house to which the principal Acts apply or for the ejectment of tenant therefrom without proof of suitable alternative accommodation (where the Court considers it reasonable so to do) if any rent law fully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under the principal Acts), so far as the obli gation is consistent with the provisions of the principal Acts, has been broken or not performed." No doubt, in accordance with the provisions of section 1 (3) of the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, as amended by the Act of 1933, which has been repro duced above, the tenant was entitled to protection against eviction only if he "continued to pay rent" at the agreed rate, but as according to the relevant paragraph of the Schedule the rent so due bad been paid before the Court was called upon to pass an order of eviction, the Court rightly held that no rent was "lawfully due" on the last mentioned date. This authority, therefore, is also of no help to the respondents, because the language of relevant section was different from that of section 10 (1) of the Karachi Rent Restriction Act, 1953.

26. In the last of the three cases the County Court Judge made an order for possession of the premises, within the Rent Restriction Act, on the ground of non‑payment of rent, which was a year in arrear. The arrears were paid into the Court before the judgment but the tenant was guilty of non‑payment of rent, having had to be summoned repeatedly. It was held that the Court had jurisdiction, under Schedule I of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, to maka an order for possession when the rent was unpaid and bad considered it reasonable so to do and that although, in the ordinary case, payment of the arrears into the Court would make it unreasonable to make an order for possession, in the present case, having regard to the tenants' record there was evidence on which the Judge could conclude that it was reasonable to make an order. The views expressed in this case also are of no assistance to the respondents, because the point for considera tion was as to whether it was reasonable or not to pass an order of eviction in exercise of the powers conferred by the Schedule I of the Act of 1915, as amended by the Act, 1933. The Court held the order of eviction to be reasonable because of the persistent default committed by the tenant. It may be pointed out that under the relevant law it was obligatory for the tenant to "continue to pay rent" regularly and in case of default the Court was empowered to order his eviction, if it thought that such an order would be a reasonable one. The question as to whether the tenant had committed default in the payment of rent, or not, was not in issue, because, admittedly, he had not paid the rent in accordance with the relevant provisions of law and but for the provisions of the Schedule, which was asserted by the amending Act of 1933, his eviction would have followed as a matter of course.

27. For reasons given above, we are of opinion that as the appellants had paid the whole of the rent due from them in the Court, in obedience of the orders passed by the learned Single Judge, they were entitled to seek protection under section 10 (1) of the Karachi Rent Restriction Act, 1953, and, hence the learned Judge was not justified it passing a decree for their ejectment. We, therefore accept this appeal and, setting aside the judgment and decree of the learned Single Judge, grant the respondents a decree for Rs. 17,562‑8‑0, with proportionate cost, against the appellants, on account of rent, at the rate of Rs. 1,250 per mensem, for the period from the 1st January 1958 to the 31st May 1959, after adjusting a sum of Rs. 3,687‑8‑0 which had been paid by the appellants in excess to the respon dents. We also grant the respondents a decree for a sum of Rs, 2,083‑5‑3, with proportionate cost, on account of rent for the period from the 1st June 1959, to the 20th July 1959, at the rate of Rs. 1,250 per mensem. The respondents' suit for ejectment of the appellants is, hereby, dismissed. The appellants will get costs of this appeal from the respondents. The decretal amount shall be realised from the money lying in deposit in the Court and if that money has already been received by the res pondents, they shall refund to the appellants the excess amount, if any, realised by them.

28. Before ending, we think it necessary to point out that it is time that the law relating to eviction of tenants and fixation' of rent of residential and non‑residential premises in force in the rest of the Province of West Pakistan should be made applicable to Karachi also. The position, at present, is that several proceedings, in different Courts, are taken in Karachi by landlords) to evict the tenants. First of all the Rent Controller is approached with an application under subsection (2) of section 10 of the Karachi Rent Restriction Act, 1953, for obtaining a certificate. Armed with such a certificate the landlord files a suit in the Court of Small Causes at Karachi, under section 18 of the Karachi Small Causes Court Act, 1926 for obtaining a decree for possession. If the landlord succeeds in such a suit and the order becomes final in revision, the tenant files a suit under section 24 of the Karachi Small Causes Court Act, 1926, to claim compensation for the threatened trespass. If he succeeds in that suit, all the proceedings taken by the landlord become infructuous, with the result that the landlord either foregoes his right to have the tenant evicted, or tries to avail of some other remedy for redress of his grievance. In all such cases several proceedings, in various Courts, are taken, which result in protracted litigation between the two parties. All this waste of time, energy and labour can be avoided if the West Pakistan Urban (Rent Restriction) Ordinance, 1959, is applied to Karachi, as it is, or in a modified form. A copy of this judgment should, therefore, be forwarded to the Law Department for necessary action. K. B. A./A. H. Appeal accepted.