1983 PLP 2700 (CLC)

Muhammad Yousaf s- Abdullah P' L D 1980 S C 298 distinguished. Z. U. Ahmad for Appellant. Sayed Inayat Ali for Respondent. . Date of hearing : 10th February, 1982. = The appellant has come in appeal against the order of eviction passed against him on the ground of default in payment of rent. I have heard Mr. Z. U. Ahmad and Mr. Sayed Inayat Ali, the learned Advocates for the appellant and respondent respectively.

2. In the rent application, the default is alleged against the appellant from Ist September, 1971 to 30th November, 1971. The agreement of tenancy between the parties is a written one which was executed on 13th April, 1971 and was valid for a period of 11 months. The tenancy agreement provides that the rent in respect of premises is payable in advance on the first of every calendar month at the rate of Rs. 260 per month. A sum of Rs. 1,040 was paid by the appellant to the respondent as "deposit" at the commencement of tenancy under the agreement but it is not adjustable towards the rent and the appellant could claim return of the same after handing over vacant and peaceful possession of the premises to the respondent. In the written statement filed by the appellant in the case the assertion made by the respondent that the rent of premises is payable in advance on the 1st of each month was not disputed out it was denied that any default was committed by the appellant. It was claimed in the written statement that the appellant bad paid arrears of electric and gas charges in respect of the premises for the period prior to his occupation amounting to Rs. 67.94 and Rs. 23 respectively and a sum of Rs. 163 was spent on the distempering of flat which was adjustable towards rent. It was also claimed that the respondent was holding a deposit in the sum of Rs. 1,040 paid by the appellant at the commencement of tenancy sand the arteats of rent if any could be adjusted from the said "deposit'": It was accordingly urged that in these circumstances there was no default . on the part of the appellant in payment of monthly rent. The two Courts below came to the conclusion that default was committed by the appellant for the months of September and October, 1971 and as no explanation was offered for the default the order of -eviction was passed against the appellant on the ground of default. Mr. 7.. U. Ahmad the learned counsel for the appellant at the hearing of this appeal contended before me that the provisions . with regard to payment of monthly rent in advance could not be enforced against the appellant for the purposes of his eviction under section 13(2)(1) of the West Pakistan Urban Reat Restriction Ordinance, 199 in view of the decisions in cases of Altaf Hussain v. Talib Hussain (P-L D 1977 Lab. 110) and Muhammad Ashraf v. Muhammad Anwar (P L D 1975 Pesh. 254). The contention of the learned counsel is supported by the decision in Altaf Hussain's case decided by a learned Single Judge of the Lahore High Court. It is held in that case that whereas it may be permissible in the case of a monthly tenancy for a landlord to provide for and receive monthly rent in advance of the premises but in the event of default in payment of such advance rent, ejectment under section 13(2)(1) of the Ordinance could not be ordered for such default as in the view of the learned Single Judge the rent payable on monthly basis, becomes due on the completion occupation of the premises by the tenant for full month and therefore, in spite of a provision to the tenancy agreement for payment of the rent in advance the rent could not in law become due and payable until expiry of the tenancy month. It was accordingly held in that the period of 15 days provided for in section 13(2)(1) of the Ordinance in such cases is to be computed from the date on which the rent will be payable on completion of tenancy month. A similar view is also expressed by the Chief Justice of the Peshawar High Court (as he then was) in the case of Muhammad Ashraf The learned counsel for the appellant on the basis of these two authorities contended before me that the rent for the month of September, 1971 could therefore, be paid by the appellant before 5th October, and the rent for the month of October, 1971 could be paid before 15th November, 1971. The rent application having been instituted on 2nd November, 1971 it is contended that the default if any was only in respect of the month of September, 1971 partly, in view of the fact that the appellant had paid arrears of electric and gas charges amounting to Rs. 90.94 (the learned counsel very fairly stated that he does not press the claim regarding expenses incurred on distempering of the flat amounting to Rs. 163), for the period prior to the occupation of premises by the appellant. It is alternatively contended that the respondent was also holding a sum of Rs. 1,040 in deposit with him, which could be adjusted towards the rent for the months of September and October, 1971 and as such no default could be said to have been committed by the appellant and in any case the discretion in the case should have been exercised in favour of appellant in these circumstances. I have not been able to persuade myself to agree to the views taken in the above-referred two cases, and therefore, I cannot uphold the contention of Mr. Ahmad. With utmost respect to the views expressed in the above two cases, I am unable to read anything in section 13(2)(1) of the Ordinance which could restrict the right of a landlord to enforce a defau1lt in payment of rent which is expressly payable in advance, under section 13(2)(1) of the Ordinance. The relevant provision is in the following terms :

"Section

13. Eviction of tenant -(I)...............(2) A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving tenant a reasonable opportunity of showing cause against the application, is satisfied that:-- (d) the tenant has not paid or tendered rent due by him in respect of the building tar rented land, within fifteen days after the expiry of time fixed to 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 ; or" After carefully reading the above provision I am unable to find anything in it, which restricted the right of a landlord to stipulate for and receive the rent for one month in advance. I am also unable to read any restriction or limitation in the above provision, which rendered the stipulation' in a tenancy agreement for payment of monthly rent in advance unenforceable for evicting a tenant on the ground of default under section 13(2)(i) of the Ordinance. If the parties by agreement provided that the rent of a premises is to become due and payable in advance on the 1st day of the tenancy month then simply because the tenant has not completed the occupation of premises for the whole month, is not sufficient reason, in' my humble opinion, to bold that tile rent of that month will not become `due' on 1st of the month within the meaning of section 13(2)(1) of the Ordinance. Such a provision for payment of monthly rent in advance in my humble view is not opposed to the/g provision of section 13(2)(i) of the Ordinance axed therefore, can be legally enforced. 1, therefore, hold that oh the date off presentation of application on 2nd November, 1971 the appellant had committed default in payment of rent for the months of September and October, 1971. It is contended by Mr. Z. U Ahmed the learned counsel for the appellant that the appellant paid certain amounts towards electricity and gas charges which related to the period prior to the occupation of the premises by the appellant anal if deduction of these amounts are allowed then there will be no default. The Courts below held that the appellant was not entitled to claim adjustment of these amounts from monthly rent Even if the contention of Mr. Ahmed is accepted there is clear default for the month of October besides there will be default partly for the month of September. 1971 also. The appellant has failed to offer an explanation for the above defaults and the Courts below were right in' holding that default was committed by the appellant for these months. Mr. Ahmed's next contention is that the respondent was holding in deposit a sum of Rs. 1040 which should have been adjusted towards the rent for the defaulted months in view of the decision in the case of Muhammad Yousuf. Abdullah (P L D 1980 S C 298). The case cited by the learned counsel has no application to the present case. The default was committed by the appellant during the subsistence of tenancy agreement. The agreement of tenancy clearly provided that the amount of "deposit" will not be adjustable towards rent taut will be refunded at the time of handing over vacant possession of the premises. In these circumstances the appellant could not claim adjustment of the deposit of Rs. 1 040. 1 accordingly find no reason try interfere with the order: of Courts below and dismiss the appeal but leave the parties to bear their respective costs. The appellant is allowed four months time to vacate the premises. K. M. A. Appeal dismissed.