P L D 1988 Karachi 338 (PLP)

This first rent appeal is directed against impugned order dated 22‑2‑1984 of XVIIth Senior Civil Judge and Rent Controller Karachi, whereby ejectment application filed u/s 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 is dismissed. Briefly stated the relevant facts giving rise to this appeal are that appellants before me are owners being LRs of Mrs. B.N.Badar, who was landlady and died after the institution of proceedings and respondents Pakistan State Oil Company are tenants in respect of plot of land bearing survey No.190 admeasuring 909 Sq. Yards situated in Modern Colony, Off Orangi Nala Road, Karachi. Rent was fixed at Rs.2,000 per month. Plot of land mentioned above was let out for the purpose of Petrol Service Station. Initially there was oral agreement, which was confirmed by letter of tenants dated 18th October, 1969 followed by lease deed dated 6th June, 1970. Ejectment was sought on the ground of default in the payment of rent for 3 months from April to June 1972 and also arrears of rent from 18‑10‑1969 to 31‑3‑1970. According to the owners tenancy commenced from 18‑10‑1969 when the tenants confirmed the acceptance of tenancy vide their letter of that date. According to the tenants original tenants were Premier Oil company, which was subsequently renamed as Pakistan State Oil Company and the tenancy commenced as per terms of lease agreement dated 21st March, 1970 and lease deed dated 6th June, 1972. In other words claim of the landlords was denied by the tenants that tenancy commenced from 18‑10‑1969. In the evidence before the learned Rent Controller owners examined Younis Kuwait! Shaikh, was produced a number of documents and the tenants examined one Murtaza Hussein. After assessment of evidence produced by the parties, the learned Rent Controller has dismissed the ejectment application. First document produced and available on the record is letter dated 18‑10‑1969. This letter is addressed by Dawood Petroleum Ltd. to Mrs. B.N. Bader. According to this letter Dawood Petroleum Ltd. accepted site measurements on the plot in question subject to obtaining all necessary sanction from Government /Semi‑Government authorities. Rent was ‑agreed at Rs.2,000 per month with an advance of 2 years to be paid. This offer was accepted by Mrs. B.N. Bader. On behalf of the owners emphasis is being placed on this letter to claim that tenancy commenced from the date of this letter. Careful perusal of this letter does not show any indication that tenancy had commenced from the date when that letter was written. On the other hand this letter only shows that offer with regard to site measurements of the plot of the land was accepted and it was specifically stated that acceptance was subject to obtaining all necessary sanctions from the Government /Semi‑ Government authorities. It is apparent from the contents of this letter that plot in question had to be obtained for the purpose of installation of a petrol pump for which several steps had to be taken to obtain sanctions from Government departments for which some time had to be consumed. Chances were not ruled out that finally tenants may not succeed in getting the requisite sanctions as such intention was made obvious that the acceptance of site measurements of the plot was conditional subject to the obtaining of necessary sanctions from the Government, It is not mentioned in the letter that possession of the land has been taken over by the tenants and the tenancy has commenced for au intents and purposes. it is not mentioned in that letter that tenants would start paying rent from. Oat date regardless of the fact whether tenants succeeded or not In obtaining necessary permissions from the authorities. Intention of the parties becomes very clear from the subsequent documents executed by them. There is agreement of lease Ex.A/I and A/2 (numbered twice) which is on the record. This is signed by Dawood Petroleum Ltd. on one side and Mrs. B.N. Bader on the other side. This document specifically speaks about commencement of lease to take over vacant possession of the land in question. It is mentioned therein that the company agrees to take on lease and the lessor hereby agrees to lease to the Company, the land as described in the Schedule "A" attached for a term of 10 years with two option to extend the lease for 10 years each as per agreed lease deed annexed as Schedule "B" commencing from the date of peaceful and vacant possession granted to the company at a monthly rent of Rs.2,000 payable in advance for two years and thereafter payable on monthly basis in advance during the said term. It is therefore crystal clear that it was agreed between the parties that tenancy had to commence from the date when vacant possession was to be taken over by the tenants from the lessor. Of course in paragraph 4 of this document it is mentioned that during the period the Company does not get any authority, permits, sanctions and licences, the lessor shall not sell, transfer, mortgage, charge, lease or alienate the land in any way nor enter into any agreement with any other party in respect thereof. These are the constraints, imposition of which, has been accepted by the lessor voluntarily without any financial compensation till the possession of land in question is taken Over by the tenants to allow commencement and operation of tenancy on the terms and conditions mentioned in the agreement as stated above. If the parties to the agreement had wanted, they would have agreed among themselves to provide some compensation for the period before the commencement of tenancy when the land in question remained with the lessor, during which he could not lease or alienate it to an other person and was supposed to keep it intact and ready for the tenants to take over. In paragraph 10 of the agreement there is clear‑cut provision for making reference to take the matter for arbitration if there was any dispute or difference or question which had arisen between the parties in respect of the interpretation of any of the terms and/or covenants or clause 5 of the agreement or the meaning of any of the terms thereof as regards the rights and liabilities accorded to the parties. It is further stated in the said paragraph that two arbitrators be appointed one by each party. in case of difference of opinion the matter could be referred to an umpire. Arbitrators and umpire have been required to proceed to arbitrate in accordance with provisions of Arbitration Act 1940 and rules framed thereunder. Ex.A/3 is lease deed on the record which was executed on 6th June i970 and it clearly provides, for commencement of lease from lst April, 1970, which is the date of taking over the possession. Contents of agreement are repeated in this lease deed including arbitration clause. Now if the landlord/lessor was of the view that she was entitled to monetary compensation for the period she held the land in question intact with constraints not to dispose it of before the commencement of tenancy and she was being deprived of compensation on account of misinterpretation of paragraph 4 of the agreement she could have initiated arbitration proceedings. Failure of landlady to take arbitration proceedings only shows that she was satisfied with the contents of agreement and the fact that' she was not entitled to compensation for the period she kept the land in question intact before commencement of tenancy. On 5th May 1972 Mrs. B.N. Badar addressed a letter to M/s. Dawood Petroleum Ltd. in which she claimed rent amounting to Rs.10,900/31 for the period from 31‑3‑1970 for 5 months and 14 days. This was the period she kept the land in question intact before the commencement of tenancy as according to her she had placed the land in question at the disposal of the company from 18‑10‑1969. Additionally she also claimed rent for April and May, 1972, which came to Rs.4,

000. On finding no response landlady/lessor on 21‑7‑1972 served legal notice on M/s. Dawood Petroleum Ltd. forfeiting the lease invoking clause 4 I'd" of the lease deed. Paragraph 4 d" of the lease deed provides that if rent is not paid within 60 days or if the company has omitted to perform or observe covenant or condition contained in the lease deed, lessor may re‑enter forthwith upon the demised land or upon any part thereof and the lease shall there upon determine. On 24‑7‑1972 Mrs. Badar filed rent case No.1569/72 from which the present appeal has arisen. On the same date Dawood Petroleum Ltd. sent reply addressed to Sayeed A. Shaikh & Co. Advocates enclosing therewith cheque for Rs.8,

000. In the said letter right of re‑entry was denied as not being in accordance with law and terms of the subsisting lease. Breach of terms of lease was also denied. Claim was made that the company was always willing and ready to pay the rent. In order to prove their bona fides cheque was enclosed. Mrs. Badar returned the cheque vide her letter dated 29‑7‑1972 sent by her counsel on her behalf stating therein that the lease stood determined w.e.f. 21st July 1972 and arrears of the rent would be accepted only upto the said date without prejudice to the right of re‑entry already exercised by her. The cheque was returned for the reason that it included rent for‑ the period after the determination of lease. On 8‑8‑1972 Mrs. Badar sent a letter to M/s. Dawood Petroleum Ltd‑ asking for removal of installation and putting them on notice that occupancy charges would be recovered at the rate of Rs.100 per day, from the date of re‑entry and ‑determination of lease until removal of installation. Vide letter dated 11‑8‑1972 reply was sent by M/s. Dawood Petroleum Ltd. in which the claims of the landlady were denied and assertion was made that the rent was being tendered regularly which was not accepted by the landlady. Or, 30‑8‑1972 Mis Dawood Petroleum Ltd. informed Mrs. Badar that rent from 1‑7‑197~, to 31‑12‑1972 was deposited in the Court in Misc. Rent Case No.88/72 (later found to be No.28/1972). Record showed that deposit was made on 18‑8‑1972. Mrs. Badar replied on 7‑9‑1972 informing that the ejectment case had already been filed hence question of acceptance of rent did not arise and further the matter would be decided by the Court. On 21‑1‑1980 Pakistan State Oil Company entered in ejectment case and applied for renewal of lease exercising first option for the further term of 10 years on the same terms and conditions at the enhanced rent as contemplated under the lease deed. Letter was addressed to Younus Rizwani Shaikh as LR of Mrs. Badar who had passed away in the meantime. I have heard at length Mr. .Mushtaq Memon on behalf of LRs of the landlady and Mr. Mazhar Jamil on behalf of the tenants. I am not impressed by the contention raised on behalf of LRs, of landlady that they were entitled to receive rent/monetary, compensation for the period‑ when the land in question was kept in readiness by the landlady, with constraints imposed on her about not alienating the same to any other person until possession was taken over by the tenants.I have already mentioned above that every thing depended upon intention of the parties which has been manifested in the agreement and lease deed in which no provision for payment of compensation is made for the period that the land was to be retained by the landlady earmarked for the tenants till possession was taken over with commencement of tenancy. In the agreement and lease deed, provision could have been made for such monetary compensation for that period if the parties had so desired. This was not so done for the reason perhaps that it was agreed between the parties that no compensation was to be provided for the period the land was not taken possession of before the commencement of tenancy.] Landlady also did not file any arbitration proceedings as is provided specifically in the agreement and the lease deed if she was of the opinion that she was not paid rent for the period before commencement of tenancy on account of misinterpretation of the relevant paragraph of the agreement and lease deed which covered the subject. Landlady also made demand for recovery of rent for this period very late which also induces me to think that she knew very well that she was not entitled under the provisions of agreement and lease deed to the recovery of rent /compensation for the period before the commencement of tenancy when she had voluntarily accepted the constraints not to dispose of or alienate the land to make it ready and available when the tenants were ready to take the possession after obtaining sanctions from the Government for installation of Petrol Pump. Ejectment is validly rejected on this' ground. So far second issue is concerned with regard to default of 3 months after the execution of lease deed, the allegation is that rent was not paid for April, May and June 1972. Reliance is placed on agreement and lease deed, both of which contemplate mode of payment of rent. However there is some difference in the language used in both these documents. In the agreement it is stated as under:‑ .commencing from the date of peaceful and vacant possession granted to the company at a monthly rent of Rs.2000 payable in advance for 2 years and thereafter payable on monthly basis in advance during the said term." In the lease deed towards the end of first paragraph it is mentioned as under‑ ..to hold the said land unto the Company from the 1st day of April, 1970 for the term of 10 years paying therefore a monthly rent of Rs.2,000 payable in advance for the first two years of the said term on vacant possession of the land being granted to the company in accordance with the agreement and payable on monthly basis as and when the rent falls due thereafter during the said term and any renewal thereof pursuant to the option in that behalf hereinafter contained." In case of difference, more importance is to be attached to the lease deed which is a registered document. In the lease deed it is stated in very clear terms that monthly rent of Rs.2,000 is payable in advance for the first two years of the said term (of 10 years) immediately on delivery of vacant possession and thereafter rent is payable on monthly basis as and when the rent falls due thereafter during the said term. It is now very clear that there is agreement between the parties for tenancy for the first term of 10 years with two options to extend the lease for other 10 years. In the first term monthly rent of Rs.2,000 is payable in advance for the first two years and thereafter as and when the rent falls due during the remainder of the said term. This provision mentioned above is to be read in conjunction with paragraph 4 I'd" of the same lease deed which is reproduced as hereunder: ‑ "If any rent shall be 60 days in arrears (whether legally demanded or not) or if the company shall omit to perform or observe covenant or condition on the part of the company herein contained and shall continue for 30 days after notice thereof to the company in writing, the lessor may re‑enter forthwith upon the demised land or upon any part thereof and the lease shall thereupon determine but without prejudice to any claim which either of the parties hereto may have against the other in respect of any breach, non‑performance of any of the covenants and conditions herein contained, Now first of all there is clear cut admission in paragraph 2 of The application filed w the Court of Rent Controller. The admission is to the effect that rent was payable in advance for first two years and thereafter every month as it fell due. Younus Rizwani Shaikh has admitted in paragraph 3 of his affidavit in evidence produced before the learned Rent Controller that rent was payable in advance for the first two years and thereafter every month as it fell due. Similar admission is made in ground c" of memo. of appeal filed in the High Court. Another prominent feature of this provision is that power of re‑entry is given to the lessor with regard to the default on fulfilment of 3 conditions. Firstly rent shall be in arrears of 60 days, secondly lessor shall give notice in writing and thirdly if lessee in spite of notice does not pay within 30 days. Mr. Mushtaq Memon contend that, word "or" used in the second line of paragraph 4 "d" of the lease, deed is in disjunctive sense which means that notice is not necessary! if rent is in arrears for 60 days but would be necessary if the company has failed to perform or observe any other covenant or condition of the lease. Contention of Mr. Mushtaq Memon is untenable and unconvincing. Accordingly perusal of the relevant clause shows that "or" is used in conjunctive sense and notice is necessary for both the cases i.e. in the case of rent being in arrears as well as in the other case in which the company has omitted to perform or observe covenant If this had not been the intention then it could have been said categorically that if the rent shall be 60 days in arrears lessor may re‑enter forthwith and in the other case if the company has omitted to perform or observe covenant the lessor shall issue notice in writing and if the company continues that wrong for 30 days after issue of notice in writing the lessor shall re‑enter. In the case of C.E. Gibbon v. Pakistan and others (P L D 1957 Karachi 956) it is held that word "or" has prima facie an alternative significance but not that it never means "and". In the case of Muhammad Hussain v. the Additional District Judge, Lahore (P L D 1966 Lahore 128) it is held that word "and" is used in that case in disjunctive sense. It is held in the case of Kala Ghazi v. Abdul Ghafoor Bhuiyan and others (P L D 1960 Decca 808) that word "or" does not necessarily always signify the disjunctive sense and it may also be read conjunctively. In the case of Salhon and others versus State (P L D 1969 S C 267 at 2681 Supreme Court has held that it may be found necessary to read the conjunctions "or" and "and" one for the other depending on the consequences intended by the legislature. In view of the legal position enunciated in the reported cases mentioned above I would say that words ,or" and "and" are interchangeable and much depends on the context in which these words are used and the intention with which they are used. This intention can be gathered from the document and as already stated by me above after perusal of the whole relevant clause I am of the view that word "or" is used in conjunctive sense and notice is necessary in case when rent is found in arrears as well as in other cases. Reverting to the question of default for months of April and ,May 1972 reliance is placed on behalf of LRs. of the landlady on, letter dated 5th May 1972 which was sent by Mrs. Badar to M/s. Dawood Petroleum Ltd. In this letter apart from claiming rent for 5 months before start of tenancy, claim is made that rent was not paid for April and May 1972‑ Mr. Mazharul Jamil, Advocate for the tenants submitted that this letter was not received by the tenants and in case‑of such denial, it was incumbent upon the other side to have produced evidence to prove the fact that the letter was received which was not done. Issuance of this letter dated 5th May 1972 is mentioned in paragraph 3 of the application for ejectment. This allegation is categorically denied in paragraph 3 of the written statement by the tenants. Younus Rizwani Shaikh on behalf of LRs. of the landlady mentioned this letter in his affidavit in evidence again and produced the same. Murtaza Hussain examined on behalf of tenants on, oath denied the receipt of the letter mentioned above. In the cross‑examination also this suggestion was denied, In the circumstances some positive evidence should have been produced to prove the fact that letter dated 5‑5‑1972 was received by the tenants. In any case in the letter dated 5‑5‑1972 default is alleged in the payment of rent for April and May 1972 but on 5th May 1972 rent for April had not become due in terms of lease deed as mentioned above. According to the terms of lease deed tenancy started on first April 1970 and rent was paid for two years in advance and those two years ended in March 1972. It was agreed between the parties according to the terms of lease deed that after first two years of the term, subsequent rent would be payable when it became due, hence rent for the month of April 1972 became due on first May but re‑entry has been allowed only when rent shall be in arrears for 60 days, so 60 days would commence from first May after which notice had to be issued and an other 30 days have been allowed after the issue of notice and only then re‑entry is allowed. In any case receipt of this letter dated 5‑5‑1972 is denied by the tenants and no evidence is produced to prove its receipt by the tenants. Second document relied upon by LRs. of the landlady is legal notice sent by their advocate F on 21‑7‑1972. Contents of this letter show that it is not notice contemplated under the paragraph 4 "d" of the lease deed because no mention is made in this letter informing the tenants that rent is in arrears for 60 days and 30 days time is also not allowed for payment after issue of the notice. On the other hand this notice shows that landlady had already taken final action of re‑entry without any prior notice. This action is not covered at all by paragraph 4 'Id" of the lease deed in any respect. On 21st July 1972 instead of taking final action of re‑entry as has been done in this case if notice had been sent as contemplated under paragraph 4 "d" of the lease deed, rent for the month of April could have been covered as it became due on first May and was not in arrears for 60 days, but then tenants were allowed again 30 days after issuance of notice. On (Sajjad Ali Shah, J) 24‑7‑1972 tenants addressed a letter to the Counsel of Rs, of landlady in which exception was taken to the right of re‑entry to be not in accordance with law and terms of the subsisting lease. Default was denied and cheque was enclosed dated 24‑7‑1972 for Rs.8,000 on account of rental receivable by the owners. This apparently covered period of April, May, June‑and July. It appears from the record that on 24‑7‑1972 Mrs. B.N. Badar had filed rent case as well but since rent was tendered by the tenants on the same date it could not be expected of tenants of having knowledge of rent case which was filed on the same date. Normal course is that the tenants are to be served with notice in the rent case which he expected to take some time. In the circumstances tender of rent by the tenants by way of cheque was valid. On 29‑1‑1972 Mr. Sayyed A. Shaikh, Advocate on behalf of the landlady replied t" the tenants and returned the cheque on the ground that lease stood determined by re‑entry hence the question of payment of rent did not arise. It would be very pertinent to point out that in this letter no mention is made about the rent case which was filed in the Court or' Rent Controller on 24‑7‑197z and draft or ejectment application, was prepared and signed by Mr. Sayyed A. Shaikh on 21‑7‑1972‑ I, therefore appears that in this letter efforts were made to supresss the fact from the tenants that ejectment case had already been filed in the Court on 24.7‑1972. In the next letter dated 8th August 1972 addressed to the tenants 'reference was made to the earlier notices/letters dated 21‑7‑l975 and 29‑7‑1972 and grievance‑was made of the fact that tenants had failed to remove installation from the above plot hence they were put on notice that they would be liable to pay damages at the rate of Rs.100 per day from the date of re‑entry and determination or we lease untill the removal of installation. It is noteworthy that even . This letter dated 8‑8‑1972 no mention is made about filing of ejectment case. Tenants sent reply through their Advocate Ar. N.A. Farooqi on 11‑8‑1972 addressed to Mr. Sayeed A. Shaikh and in this notice tenants have taken the stand that they have not committed any default ,or breach of lease as such they were not liable to remove their limitation and accept right of re‑entry. It was averred that tenants made repeated attempts to pay rent but the same was not being accepted. On 30‑8‑1972 by registered A.D Regional Manager of the, tenants sent letter to the landlady informing her that tenants had deposited rent in the Court in Rent Case‑No.88/1972 for the period from first April 1972 to 31st December 1972. After having received that letter Mr. Sayeed A. Shaikh finally addressed letter dated 7‑9‑1972 to the tenants informing them that the landlady had filed case of ejectment against the tenants as such question of acceptance of rent did not arise. in the circumstances and for the facts and reasons stated above I am of the view that the tenants are not to be blamed and they made consistent efforts to tender the rent which was not accepted and the tenants were deliberately kept in dark about filing of ejectment case hence there was no wilful default and if at all there was any default the same could be treated as default of technical nature worth condonation. Reference can be made to the cases of Muhammad Anwar v. Syed Imam (1982 C L c 436), Syed Jalilur Rehman v. M/s. Johar Trading Co. and Muhammad Yousuf v. Abdul Latif and others both reported at pares 219 an(I 398 of the same book. Reliance is also placed on the case of Inayatullah v. Zahooruddin (1987 S C M R 1313) in which it is held that default was not willful when record showed that landlord deliberately created difficulties in the way of tenants by not accepting the rent in the hope that some omission or slip on the part of tenants may enable him to carve out the ground for their eviction.‑ It was further held that conduct of tenants indicated no elements of negligence on their part. On refusal of receiving the rent tenants reasonably adopted alternate prescribed mode of tendering the rent by way of depositing the same with the Rent Controller. Mr. Mushtaq Memon contended that position of tenant is that of debtor who cannot escape the liability pleading that landlord has refused ' to accept the rent and further that tenant should seek landlord and pay the rent either by money order or by deposit in the Court. In support of the proposition he has cited case law which would not be necessary for the reason that the explanation given by the tenant With valid and cogent reasons as stated above is satisfactory as correspondence was going on between the parties by‑ way of exchange of letters and notices and default was not covered as per terms of' the lease deed and further on behalf of landlady this fact was suppressed from the tenants that ejectment case had been filed in the Court. Mr. Mazharul Jamil has submitted that in this case so far tenants are concerned they have very strictly complied with the terms and conditions specified in the lease deed and have not committed any wilful default as defined in lease deed. He further submitted that what ever has been agreed upon by the parties in the lease deed is in be followed in ‑letter and spirit and such terms and conditions specified in lease deed cannot be overridden by the provisions of the rent law. Reliance is placed on the case of Mrs. Zehra Begum v. M/s. Pakistan Burmah-Shell Ltd. (P L D 1984 S C 38). Lastly Mr. Mushtaq 'demon argued that payment by way of cheque is not proper mode of payment as provided in the Explanation of Section 13(2) of West Pakistan Urban Rent Restriction Ordinance 1959 which allows only two modes of payment by way of money order and deposit in the Court. In support ‑of proposition he has cited the case of Messrs Peoples Steel Mills Ltd. v. Hafizuddin and others '(PLD 1981 Karachi 739). Reliance by the learned Advocate on the reported case in support of proposition put forward by him is misplaced for the reason that it does not support his contention that payment of rent by cheque is not valid tender. On the other hand in the reported case it is held that payment of rent by cheque by the tenant to' the landlord is valid tender arising from contractual liability u/s 13 (2) of the West Pakistan Urban Rent Restriction Ordinance 1959 but the same would not be true in connection with statutory liability arising from Tentative Rent Order which is passed u/s 13(6) of the same Ordinance. The difference being that in the earlier provision words used are tenant has not aid or tendered rent due by him" and in the later provision words used are "Controller shall direct the tenant, to deposit all the rent due from him". Admittedly this plea was not raised in the Court of Rent Controller as such in was not part of the pleadings and no evidence was produced of, this, point. Secondly it also appears from the record that payment of rent by way of cheque had been accepted in the past. In any case the correct legal position is that payment of rent by way of cheque is a valid tender as between the parties but may not be a valid tender in connection with compliance of Tentative Rent Order, where emphasis is on "deposit" unless such mode of payment is specifically allowed in the Tentative Rent Order. For the facts, and reasons mentioned above impugned order is maintained and in the result appeal is dismissed with no order as to costs. M.Y.H./Y‑15/K Appeal dismissed.