1990 PLP 2247 (MLD)

Respondent Mst. Wilayati Begum rented out her House No.A‑167 Block‑H, North Nizamabad, Karachi, to appellant Asad Ahmed Siddiqui on a monthly rent of Rs.1,700 vide Rent Agreement, dated 1st July, 1989. The rent was payable in, advance on or before the 5th of every month. However, the appellant did not pay any rent whatsoever and on 8‑10‑1989 the respondent instituted ejectment petition on the ground' of default: The appellant in his written statement raised an objection that the rent agreement was invalid because it was "neither signed nor attested by the Rent Controller". He also stated that he had paid Rs.20,000 as security deposit and Rs.20,000 as advance rent which was to be adjusted in monthly rent at the rate of Rs.1,0(X) per month and thus he was to pay only Rs.700 per month instead of Rs.1,700 per month for the first 20 months of tenancy. He also stated that he vacated the premises on 9th July, 1989, that is, after one week of commencement of tenancy and offered to deliver possession to the landlady if she returned the security deposit and the advance rent and since the landlady did not return the money, the possession was perforce retained by him but, under these circumstances, he was not under any obligation to pay any rent. On 17th December. 1989 learned Rent Controller passed the tentative rent order under section 16(1) of the Ordinance directing the appellant to deposit arrears of rent from July to November 1989 and to continue depositing future rent, with effect from 1st December on the 10th of the following months. The appellant did not comply with this order and on 20th January, 1990, the respondent applied under section 16(2) of the Ordinance for striking off the defence of the appellant and this the learned Rent Controller has done vide impugned order, dated 25‑2‑1990 which is impugned in this appeal.

2. The landlady, late Mst. Wilayati Begum, had throughout acted through her husband and attorney Syed Khursheed Hyder Rizvi and the first point raised by learned counsel of the appellant is that advocate of the respondent moved a Miscellaneous Application on 11‑2‑1990 before the learned Rent Controller for early disposal of section 16(2) application whereas Mst. Wilayati Begum had admittedly died on 6‑2‑1990 and therefore, the counsel was not authorised to move this application and therefore action taken over it is illegal. Learned counsel is sadly mistaken in holding this view. Firstly, the application was moved within five days of the death of the lady and her counsel might very well have been ignorant of her death and moved this application in good faith and he was competent to do so under Order 22 Rule 3, C.P.C. There was still enough time at the disposal of the L.Rs. of the deceased to move the Court for being impleaded. Secondly, under sub‑rule (2) of rule 3, any order passed by the Court is valid and binding upon the L.Rs. even though they were not brought on record. Thirdly, if at all should any one have any grievance in this regard, it is the L.Rs. of the deceased and not somebody else. Fourthly, this application is just a miscellaneous application for early disposal of the case. No substantive order was passed on it. The only order passed on it was that report of office was called. All further proceedings were taken on application under section 16(2) which was moved on A 20th January, 1990 when the lady was alive and order passed on this application is protected by Order 22 rule 3(2) of C.P.C. As such the objection that impugned order, dated 25‑2‑1990 is illegal is devoid of any force and is rejected.

3. An objection was raised in the written‑statement that the Rent Agreement was void because it was not signed by Rent Controller. This objection was not taken up during hearing. Even otherwise it is un‑tenable. The objection was obviously based on section 5 of the Ordinance but section 5 is directory in nature and non‑compliance with it does not render the agreement void or illegal.

4. Learned counsel of the appellant then referred to the tentative order, dated 17‑12‑1989 and pointed out to the following observations allegedly made by the learned Rent Controller " This is also yet to be seen that in these circumstances whether opponent is still tenant of the applicant" and on the basis of these observations argued that since the learned Rent Controller himself was yet not sure that the appellant was still the tenant, he could not, and should not, have passed tentative rent order without first determining the relationship of landlord and tenant between the parties. I am constrained to observe that learned counsel of the appellant has raised a factually incorrect proposition because learned Rent Controller had not made any such observation; lie had only reproduced "the contention of the opponent (that is, the present appellant) as per written‑statement and the contentions of his counsel during the hearing of application under section 16(2). It may be said that learned Rent Controller had not expressed himself in appropriate language but it is clear from the tentative order, dated 17‑12‑1989 that he first reached the conclusion that relationship of landlord and tenant existed between the parties and only thereafter directed the appellant to deposit the arrears and to pay the future rent. This objection is also untenable and is rejected.

5. Lastly, learned counsel of the appellant referred t63appcliant's letter, dated 9‑7‑1989 sent to the Chairman of the area in which the appellant had stated that he was not satisfied with the house and offered to return the key to respondent's attorney but he refused to receive it. This letter had no evidentiary value at the stage of passing the tentative order and learned Rent Controller rightly ignored it while passing the tentative order.

6. The simple facts of the case are that the appellant took on rent the demised premises vide Rent Agreement, dated 1st July, 1989 and obtained possession of the house the same day. He did so at his own free will and he cannot be suffered to complain that he did not find the house suitable for his needs and wanted to vacate it after a week. Just as a landlord cannot act arbitrarily and unilaterally terminate the contract of tenancy, so the tenant can also not do the same. If the appellant wanted to terminate the contract of tenancy, he should have negotiated with the landlady or her attorney. At any rate, it is clear from his written‑statement that he did not unconditionally offer to deliver possession of the premises to the respondent. He wanted the refund of Rs.40,000 first. In this he was not justified. Firstly, he could not unilaterally and arbitrarily terminate the tenancy agreement. Secondly, even if he had a mind to do so, he should have unconditionally delivered possession to the landlady and seek the refund afterwards. Since he remained in effective control and possession of the premises, learned Rent Controller was justified in passing the tentative rent order.

7. As for the claim of Rs.40,000 the appellant's case is that he paid Rs.20,000 as fixed deposit and Rs.20,000 as advance rent. Now there is a written rent agreement between the parties and in view of sections 91 and 92 of Evidence Act (or their corresponding sections in Qanun‑e‑Shahadat) the terms and conditions of the rent agreement cannot be modified by an oral agreement between the parties. When the rent agreement provides per para. 3 thereof that full amount of Rent (Rs.1,700) is payable in advance by the 5th of the month, the appellant is estopped from saying that Rs.20,000 were paid as advance rent. Such a claim contradicts and over‑rides para. 3 of rent agreement and therefore such a claim must be rejected outright. What prevented the appellant from getting incorporated the payment of Rs.20,000 advance rent in the rent agreement? Since the claim is itself untenable the alleged receipt is of no value. The attorney of the respondent has denied the genuineness of this receipt and in view of what has been stated above, it is a worthless piece of paper. This leaves the sum of Rs.20,000 received by the respondent as security deposit vide para. 2 of the rent agreement. It is refundable at the time of delivery of possession of the premises by the appellant and I would have asked the respondent to deposit this amount in Court or pay it to appellant before obtaining possession but the appellant admittedly has not paid any rent since 1st July, 1989 and since he has been in effective control and possession of the premises, notwithstanding the fact that he has abandoned residing in it and it is lying vacant and locked, he is bound to pay rent. Up to date rent from 1st July, 1989 to 30th June, 1990 (12 months) comes to Rs.20,

400. This security deposit of Rs.20,000 thus stands adjusted in the arrears of rent and even after its adjustment the appellant owes Rs.400 to the respondent. Rent from 1st July, 1990 till the delivery of the possession is also payable by the appellant.

8. Since the tentative rent order, dated 17‑2‑1989 is perfectly valid, the appellant was bound to comply with it and since he did not comply with it his defence was rightly struck off under section 16(2) of the Ordinance vide order, dated 25‑2‑1990.

9. For the above‑noted reasons I find no force in the appeal and the same is dismissed with costs. Since the premises are already lying vacant and abondoned, the appellant is directed to deliver possession forthwith. A.A./A‑905/K Appeal dismissed.