1996 PLP 394 (CLC)

The tenancy agreement was executed between the parties on 6‑7‑1970. It specifically provided that the tenancy would be for indefinite period and the landlord would not claim the possession of the shop on the ground of his or of his children's personal use or on any other ground subject to the condition that the tenant would regularly pay the rent in advance. I have heard Mr. Muhammad Asar Hussain learned counsel for the appellant and Mr. Muhammad Akram Shaikh learned Advocate for the respondent. The learned counsel for the appellant relying on section 10 of the Sindh Rented Premises Ordinance, 1979 (Ordinance XVII of 1979) submitted that as no date has been fixed in the agreement for payment of rent, the rent was payable by 10th of the month, next following the month for which. it is due. It is further submitted that no period having been fixed for payment of rent, the eviction can be ordered on the ground of non‑payment of rent, if it is not paid within 60 days after the rent has become due for payment. Reliance was placed on section 15(2)(ii) of the Ordinance. Relying on the aforesaid provision, it was submitted that due date for payment being 10th of the month, the time of 60 days to' constitute the default in payment of rent, would be computed after the expiry of the 10th of the month. It was thus submitted by him that the appellant having deposited rent in Miscellaneous Rent Case on 17‑4‑1983 for the months of March and April, he was not liable to be evicted on the ground of default. He placed reliance on the cases of Yawar Baig v. Usman Ghani Cheepa (1989 CLC 247), Babu v. S.M. Rafi (1989 CLC 294), Hakeeni Moazzumuddin Baqai v. Abdul Hussain Tahir Ali and 3 others (1989 CLC 722) and Fareew Ahmed v. Fikree Development Corporation (1991 MLD 2.609). The above provisions of law have been succinctly analysed by Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court) in the last ?mentioned case as under:‑‑ "In this connection section 10 may also be referred which provides that 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 10th of the month next following the month for which it is due. The question for consideration is whether in a case where an agreement which provides for period of tenancy but_ does not fix a date for payment of rent the grace period shall be 15 days or 60 days. A perusal of sections 10 and 15 will show that although the Ordinance provides for payment of rent on the 10th of the month next following the month for which it is due, f it is subject to agreement; if the agreement between the parties is otherwise this date will be changed. In case where the tenancy month ends with the calendar month rent must be paid by 10th of the next month provided there is no agreement to the contrary. In spite of these provisions section 15 has fixed another period for the purposes of calculating default. It contemplates two situations one where by agreement a date for payment has been fixed and the other where there exists an agreement of tenancy but no date for payment of rent has been fixed. In the first case the tenant will be required to pay within 15 days from the date fixed by mutual agreement between the parties; whereas in the second case a grace period of 60 days has been allowed." In view of the above, there can be no cavil with the proposition that where the date for payment of rent is not fixed by mutual agreement between the landlord and tenant, the rent will be due on he 10th of the month next following the month for which it is due and section 15(2)(ii) of the Ordinance will attract an order of eviction if the rent is not paid within 60 days of the aforesaid date. It is not necessary, in view of the what follows, to dilate any further on the aforesaid proposition. The learned counsel for the respondent submitted that under the agreement executed between ‑the parties, the rent was payable in advance. He further pointed out that under the agreement it was understood between the parties that the rent will be paid in advance on the first of the month. He referred to the rent application filed by the respondent wherein it is specifically pleaded that: "The opponent is a tenant is respect of??????..on monthly rent at the rate of Rs.300 per month payable in advance on the first of each month regularly." The above averment in the application was not denied by the appellant in his written statement and therefore it is to be deemed to have been admitted. The respondent has reiterated the above statement with regard to payment of rent in advance on the first of each month in his affidavit‑in‑evidence. Such statement was not challenged in the cross-?examination. The appellant in his affidavit‑in‑evidence also did not rebut the above averment. ‑ The impugned order does not disclose that any submission was made with regard to absence of the date fixed for payment of rent. The learned Rent Controller had therefore proceeded on the assumption and rightly so that rent was payable in advance on the first of the month and had found that the appellant had failed to pay rent in respect of demised premises within 15 days after the expiry of the period fixed by mutual agreement between the parties for payment of rent and accordingly ordered his eviction. In view of the aforesaid admitted position that the rent was payable in advance on the first of the month, the first three authorities relied upon by the counsel for the appellant are not applicable to the facts and circumstances of this case, as no date was fixed for payment of ~the rent by the respective tenants in the said cases. However the learned counsel for the appellant contended that the words used in the agreement for payment of rent in advance were against the provisions of the Ordinance. In support of such submission, he stated that the word `advance' has no legal value as according to section 10 of the Ordinance, what is important is the date when the rent becomes due. The submission is without any substance. Rent becomes payable in terms of the mutual agreement, between the parties when there is such agreement, otherwise the rent becomes payable on 10th of the month next following the month for which it is due. In the instant case, there was an agreement for payment of rent in advance. It was specifically pleaded that rent was payable in advance on the first of the month. Such averment, as already stated above, was not disputed either in the written statement or in the evidence by the appellant. Accordingly the rent having not paid within 15 days of the expiry of the period prescribed by the mutual agreement, the appellant had incurred the liability of eviction under section 15 of the Ordinance. Before parting with the judgment, it may be pointed out that the learned Rent Controller had misread Exhs. 0/3 and 0/4; 0/4, as already stated above, being the original receipt. The learned Rent Controller has taken the said receipt to be towards payment of rent for the month of February, 1983. The said receipt was issued by the respondent for the month of January, 1983 on 14‑2‑1?

83. Thus, the appellant had committed default in payment of rent for the months of February, March and April. The rent of the aforesaid three months was deposited by the appellant in Miscellaneous Rent Case on 17‑4‑1983 i.e. after expiry of 15 days fixed for payment of the rent. . In view of the above, no exception can be taken to the 'finding of the learned Rent Controller on the issue of default in payment of rent by the appellant. The appeal is, therefore, dismissed with costs. By consent, the appellant is allowed sixty days' time for delivery of vacant possession of the demised shop to the respondent. H.B.T./A‑1579/K??????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.