1999 PLP 3149 (MLD)

Now coming back to the question of default the appellant/landlord himself has admitted that rent was paid till March, 1982 and the default is for the period of 1-4-1982 to 31-8-1982. Clause (2) of the tenancy agreement clearly lays down that the rent of the shop was payable in the beginning of calendar month. This according to Mr. Qazi Wali Muhammad, counsel for the appellant/landlord means that the rent should be paid by the 10th of every calendar month in advance whereas the word "advance" does not appear at all. Under the circumstances and relying on the case of Shezan Ltd. v. Abdul Ghaffar (1992 S C M R 2410)-, wherein it was held that "monthly rent is payable in advance means that it is payable before it is due i.e. on the last day of the preceding month or on the first day of the relevant month but since in the present case it is payable in the beginning of every calender month it can be interpreted as beginning of every calendar month when it has became due. The respondent/tenant in her written statement as well as in the affidavit-in-evidence claimed that the rent for the month pf April onward was tendered to the appellant/landlord but when refused the same was sent by money order, dated 19-6-1982 and 27-6-1982. Section 15(2) (ii) provides as under:- (I) (2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period, as may be specified in the order, if he is satisfied that: (ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment." While section 10 is as under:- (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has` refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgement, postal money order receipt or receipt of the Controller as the case may be, shall be produced and accepted in proof if the payment of the rent: Provided that nothing contained in the section shall apply in the cases pending before the Controller, on the commencement of this Ordinance." It has been laid down through various judgments of this Court and Supreme Court that even if tenancy agreement expires the terms shall remain in operation and the parties are bound by the said terms. Reliance can be placed on the case of Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190,), wherein a question arose: "Whether on termination of an agreement of tenancy when the tenant remain in occupation as of right subject to liability under the Rent Law, the term of agreement became irrelevant for regulating the tenancy. To answer the above question the Hon'ble Supreme Court considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy after its termination and observed that leaving aside theoretical possibilities all of them can be interpreted consistently on the following lines:-- ONE: Notwithstanding with the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with

(a) the general law; and (b) the terms of tenancy between the parties. But subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or covenants of the agreement to the contrary, shall have no effect; TWO; during the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant the regulation of that relationship 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 the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary'. THREE; In the present case keeping in view clause (2) of the said tenancy agreement and the law, the rent should have been remitted within 15 days after the same become due but the postal receipts are dated 19-6-1982 and 27-6-1982 much beyond the period within which rent was due and definitely not according to the term of the tenancy agreement. However, keeping in view that the tenant never defaulted before and first tendered rent, to the landlord and after the refusal remitted it through money order it can be said that the delay was caused due to the obstacles placed by the landlord in tendering the rent. The tenant also complied with the rent order passed by the Rent Controller and as such she cannot be regarded as wilful defaulter. Reliance can be placed on the case of Amir Ali and two others v. Jon & Company (1987 CLC (k) 442), wherein 'rent was offered by the tenant but was not accepted by Rent Collector of landlord and it was held that case of wilful default not proved against tenant and the Rent Controller was justified in exercising his discretion in favour of tenant in refusing to order his ejectment." In the circumstances though I do not agree with the reasons given by the learned Rent Controller in the instant case but agree with the finding given on this issue that the appellant is not a wilful defaulter. The two other issues are of subletting and alteration/addition causing damage to the property. Nowhere in the evidence it has been established that the tenant has sublet the premises. The entire record clearly indicates that the landlord was aware of the fact that the tenant is running business through her agents/employees. She has not parted with the possession of the rented property not even partly to hold her responsible for subletting. So also is the case in regard to alteration and addition thus causing damage to the property and impairing its utility. Reliance can be placed on the case of Khalid Nassim and others v. Asma Yousaf (1993 CLC 127), wherein it was held that 'What transpires from the above discussion is that the ground of eviction available to a landlord under section 15(iii)(a) of the Sindh Rented Premises Ordinance, 1979, namely, "handing over the possession of the premises' by the tenant to some other reason without his consent, would be available to him only when the tenant consciously and purposely puts another person into possession of the premises or allows him to retain possession thereof with the intention to divest himself thereof". I have already observed that the certificates of Architect is not a reliable piece of evidence and there is nothing else on the record not to agree with the findings of the learned Controller on these two issues. The upshot of the entire discussion is that appeal having no force is dismissed with no order as to costs. H.B.T./S-218/K Appeal dismissed.