1980 PLP 767 (SCMR)

NASIM HASAN SHAH, J.‑This petition is directed against the order dated 26‑5‑1979passed by a learned Single Judge of the Lahore High Court in S. A. O. No. 655 of 1978, whereby he maintained and upheld the order of the ejectment passed by the Additional District Judge, Rawalpindi, dated 25‑10‑1978, who by the said order, held reversed the Rent Controller's order passed on 23‑2‑1977 dismissing the ejectment application,, preferred by the respondent. The relevant facts are that the petitioner is in possession of the ground floor bearing No. 1/195, Mohallah Qutab‑ud‑Din, Rawalpindi, as a tenant under the respondent at a monthly rent of Rs.

40. The respondent, who is a landlord of the property is occupying the upper portion of the premises. The tenancy was created in favour of the petitioner on 8‑8‑1969 by means of Rent Deed which was to last for 12 months and the rent was to be paid in advance by the 5th of each month. The rate of rent payable was fixed at Rs. 40 per month. The said lease expired on 7‑7‑1970. However, petitioner continued to remain in possession of the property. He did not pay the rent for the months of July and August 1970, in advance by the date of each month but appears to have sent rent for the said two months by Money Order on 18‑9‑1970. Even the rent for the month of September 1970, was not tendered until 16‑10‑1970 but we are not presently concerned with the payment about the said month. The respondent, therefore, sought ejectment of the petitioner on the ground of default. He also pleaded that he needed the house for his own occupation and that of his children. The Rent Controller did not accept these pleas and dismissed his application. On appeal, however, the Additional District Judge, reversed his findings and ordered him to vacate the house in dispute. He then filed a second appeal before the Lahore High Court (S. A. O. 655/78) which was also dismissed on 26‑5‑1979. Hence this petition for special leave to appeal. The learned counsel for the petitioner submitted that the finding that the petitioner had committed default in the payment of rent was untenable for two reasons. Firstly, because the condition of s advance payment of rent was never adhered to by the parties and stood waived by the landlord himself by accepting tender of rent after the periods stipulated in the 'case deed, he had, it is submitted, even accepted rent of 8 months in lump‑sum. Hence in his instance also the late submission of the rent could not be deemed to be a default. Secondly, after the expiry of the lease, the petitioner did not remain bound by the terms of the expired lease deed in the matter of payment of advance rent but was now governed by the provision of clause (1) of subsection (2) of section 13 the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) according to which the rent was payable within 60 days of its falling due. On this basis, the rent of the month of July 1970, was payable within 60 days of the rent falling due i.e. by the 30th September 1970. Hence the petitioner could not be deemed to have committed default in the payment of rent. We find no force in these arguments. The fact that the landlord had in the past been accepting the rent after the due dates does not mean that the relevant term in the lease deed had become inoperative. It only meant that the respondent had condoned the default m that instance and could not plead it as a ground for ejectment of the petitioner. So far as the second contention is concerned that after the expiry of the lease period, the petitioner was not bound by the conditions of the lease especially the term relevant to payment of rent. The learned counsel relied upon the judgment of a learned Single Judge of the same Court, namely, Iltaf Hussain v. Talib Hussain (L D 1977 Lab. 110) wherein Muhammad Afzal Zullah. J. (as Judge of the Lahore High Court) examined the provision of section 13(2)(i) read with sections 4 and 6(1) (a) of the Ordinance and observed that the tenant may, in order to create good will between himself and landlord, stipulate for and pay in advance monthly rent. Such tenant, however, cannot be evicted if he fails to pay rent in advance. It was held that in order to evict the tenant on the ground of default of payment of rent, he would have to satisfy the provisions of section 13 (2)(i), namely, that he has defaulted in payment of rent due from the tenant. According to the learned Judge "sub‑clause (11 of subsection (2) of section 13 requires the Rent Controller before directing the eviction to be satisfied that the tenant had not paid or tendered the rent "due by him" in respect of the property within the period specified in the said provision, but "after the expiry" of the time fixed in the agreement of tenancy with his landlord. As the rent payable on monthly basis, according to the learned Judge, would become due on the completion of occupancy of the property for the full month; it would become "due" from the tenant at the end of the month. Thus, looked at, the rent for the month of November, 1974, would become due after the last day of the said month i.e. the 1st December 1974: The tenancy being a monthly one (in the case under consideration) the law allowed 15 days' time to the tenant to clear the same. He could therefore, clear it till the 15th of December, 1974. The conclusion reached by the learned Judge was that the tenant would be in default only if he did not clear the rent of a particular month by the 15th of the subsequent month and not merely if he acted against the condition regarding advance payment of rent. This judgment, we observe, omits from consideration a Division Bench Judgment of the same High Court, which has been relied upon by the learned Single Judge in the judgment now impugned and which dealt with the precise question arising in the present case, namely, Muhammad Ashraf v. Muhammad Sharif and 3 others (P L D 1971 Lah. 610) which judgment of the Division Bench was delivered by one of us Anwarul Haq, C. J.(as Chief Justice of the Lahore High Court and discussed the same question at some length. Before adverting to the observations made in this judgment, it may be useful to reproduce the provisions of section 13(2)(1) of the Ordinance "13(1)(1).‑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 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 sixty days from the period for which the rent the payable. The relevant observations in Muhammad Ashraf's case are contained in paragraphs 6, 8 and 9 of the aforesaid judgment and can usefully be quoted in extenso :‑‑ "(6) It is correct that the appellant falls within the definition of the term "tenant" as contained in clause; (i) of the section 2 of the Ordinance which lays down, inter alia, that the term tenant includes a tenant continuing in possession after the termination of the tenancy in his favour. The definition in question does not contain any indication as to the terms and conditions which such a tenant is to be governed after the termination of the tenancy in his favour. The contention of the learned counsel for the appellant is that the tenancy being a statutory one in terms of the definition given in the Ordinance, the terms and conditions must be spelt out from the Ordinance and not from the previous agreement of tenancy, with the result that the tenant had to pay rent within sixty days of its falling due and not in advance as contemplated in the previous agreement. It is submitted by Mr. Bajwa that it is not permissible in such a case to apply the principles embodied in section 116 of the Transfer of Property Act in respect of tenants "holding over." (8) Generally speaking; in all agreements of tenancy usually three things are provided : (a) the rate of rent, (b) the mode of pay ment and (c) the period of tenancy. The learned counsel concedes that in the present case the rent payable by the appellant is at the rate of Rs. 2,50 per mensem, that is the rate at which he was paying under the agreement of tenancy. In other words, in spite of the termination of the tenancy by efflux of time the tenant continues to be governed by at least one of the terms of the expired agreement. Now, is there any logical, rational or legal basis for saying that the other term of the tenancy regarding the mode of payment could not be imported into such a case. The answer, to our mind, must be in the negative for the reason that although a tenant continuing in possession after the expiry of the tenancy is deemed to be a tenant within the definition as given in the Ordinance, yet the Ordinance itself does not specify the terms and conditions on which such a tenant shall continue in possession; and, therefore, we must of necessity presume that the intention of the law is that he shall continue on the old terms and conditions. This conclusion arises not because of the application of section 116 of the Transfer of Property Act relating to tenants "holding over" but because this appears to be the intention of the statute itself under which the appellant claims to be a tenant. By according statutory recognition to the positions of a tenant who continues in possession of the demised positions after termination of the lease the statute does not seek to introduce terms and conditions of tenancy except continuing it beyond the stipulated period. Accor dingly, we are of the view that a tenant continuing in possession after the termination of the lease must be held to be governed by the same terms and conditions as were applicable to him under the agreement of tenancy which has terminated. (9) We may now Burn to the provisions contained in clause (i) of subsection (2) of section 13 of the Ordinance dealing with the question of default. According to these provisions, default is committed after the tenant does not pay or tender rent due from him 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, within sixty days from the period for which the rent is payable. In view of our finding that a tenant continuing in possession after termination of the tenancy does so on the terms and conditions embodied in the previous agreement, it is clear that such a case falls in the first category mentioned in clause (i) aforesaid, if the previous agreement contains any stipulation as to the date of payment of rent." Applying the above dictum to the present case, it will appear that the agreement stipulated that the rent was to be paid in advance by the 5th day of every month and, therefore, if it was not so paid or tendered 15 days after the expiry of the specified date, the tenant would be in default. Consequently, the rent for the. month of July had to be paid by the 20th of July and that of August by the 20th August. As the petitioner did not pay or tender the rent either for the month of July or the month of August until the 18th of September 1970, he was clearly in default in payment of rent within the meaning of clause (i) of subsection (2) of section 13 of the Ordinance. Mr. Riaz Ahmad Peerzada submitted that the above‑cited judgment required reconsideration. In support of this, he relied upon the second part of clause (i) of subsection (2) of section 13, which, he submitted, was applicable to his case i.e. the words in that part which enacted that "in absence of any such agreement within 60 days from the period from which the rent is payable". He wanted us to hold that after the expiry of the lease period of 11 months there was no agreement now in existence and the matter fell to be regulated in terms of the clause above‑cited. We regret we cannot agree. The learned counsel had no answer to the argument that if there was no agreement' in existence between the parties how could he contend that the rate of rent remained the same, as that contained in the original agreement but that only the mode of payment was no longer operative. Other anomalies would also arise if his interpretation was accepted. It is to avoid all such anomalies and absurdities that the rule has been laid down in the case of Muhammad Ashraf v. Muhammad Sharif and others that all the terms continue when a tenant continues to remain in occupation of the property in spite of by efflux of time. We, therefore, consider the termination of the tenancy that no modification in the rule laid down therein is called for. As for the second contention that the petitioner did not require the house for his personal need and that the object of the respondent in securing his ejectment was only to obtain enhanced rent, the learned counsel pointed out that formerly the petitioner was in possession of the entire house and after the transfer of the said house in his favour he had filed an ejectment application for his eviction in the year 1965 but the parties compromised and in the terms of the compromise he vacated the upper portion of the house in dispute and handed over its possession to the respondent. The baithak of the house in the lower portion was also handed over to him for his use jointly with him. The rent of the portion of the house in possession of the petitioner was fixed at Rs. 30 per month. This compromise was made on 19‑11‑1965 but in the year 1969, the respondent again demanded that the rent should be enhanced and the petitioner agreed to this and enhanced the rent to Rs. 40 per month and executed a rent deed dated 8‑8‑1969, already mentioned, and that the respondent now wanted to eject him with a view to enhance the rent further. The question whether the landlord requires the house for his personal need or not is a question of fact. The learned Additional District Judge held that the landlord has two sons of marriageable age and one of his married sons is also living with him and that the premises in his occupation are not sufficient for his need. He therefore held that the landlord required the house for boner fide personal need. This finding was upheld by the High Court which after discussing the plea whether the respondent was getting the premises vacated for enhancement of the rent concluded that I am not inclined accept the contention of the learned counsel for the appellant that the ejectment application filed by the respondent was aimed at seeking enhancement of the rent". On the other hand, it was held that the accommodation now available to the respondent and his family was not sufficient to meet their requirements and that the premises in dispute was needed by the respondent in good faith or his own occupation and for the use of his children. The learned counsel for the petitioner was not able to show that these finding were vitiated by misreading or overlooking of the material evidence and cannot, therefore, be interfere: with. The result is that this petition must fail and is accordingly, dismisses. However, the petitioner is allowed four months' time to put the landlord in possession, provided he continues to pay monthly rent `o t landlord it: accordance with law. Petition dismissed