1986 PLP 310 (MLD)

Date of hearing: 12th January, 1986. This appeal calls in question the order passed by the XIIth Senior Civil Judge, Assistant Sessions Judge and Rent Controller, Karachi dated 4‑1‑1983. The facts of the case briefly are, that the appellants Nos.1 to 6 are the legal heirs of one Azizur Rehman who was the original landlord of the premises situated at Murad Khan Road, Khori Garden, Karachi. In 1963 two rent applications were filed by the said predecessor of the appellants, being Rent Cases Nos.960 and No.961 of 1969 respectively on the ground of default in payment of rent and alteration having been made by the tenant without the permission of the landlord. The rent of the premises was said to be Rs.25 per month. In March, 1974 the two cases were compromised by the parties and an application for compromise was filed before the learned Rent Controller. According to the terms agreed in such application, the tenancy was transferred into the name of Bukhsh Illahi, the respondent as originally the same stood in the name of Shafiq Nasim and Company of which the respondent was the sole proprietor. It was further agreed that the respondent would pay rent at the rate of Rs.25 per month from First January, 1969. It was further agreed that the respondent would clear the entire arrears of rent which had fallen due from 1‑1‑1969 till February, 1974, within a period of one month from the date of such compromise. Both the said cases were disposed of by the learned Rent Controller in terms of the said compromise. Thereafter, the respondent failed to pay rent to the appellants' predecessor in terms of the said compromise, with the result that the said predecessor filed another application being rent case No.1594 of 1974 before the Rent Controller at Karachi. The learned Controller, however, dismissed the application, holding that no default was committed as no fresh tenancy agreement envisaged by the compromise had been executed between the parties. I have heard Mr. Arif Bilal, on behalf of the appellants and Mr. A.R. Mirza, on behalf of the respondent. The short point involved in this case is, whether the compromise filed by the parties in February, 1974 constituted a fresh tenancy agreement. The contention of Mr. Arif Bilal is, that since the terms of the compromise were agreed to by both the parties, the same constituted a valid tenancy agreement but according to Mr. A.R. Mirza, the learned counsel for the respondent, a fresh tenancy agreement was necessary. According to the definition of the term 'tenant' both under the former as well as the present Rent Ordinances, respondent Bakhsh Illahi became the tenant of the appellants from the date of the compromise since according to the terms of the compromise he had agreed and undertaken to pay rent of the premises in question, at the rate of Rs.25 per month which included both the future as well as the arrears of rent. No doubt, there was no fresh agreement executed between the parties as contemplated by clause No.1 of the compromise but that hardly affected the other clauses of the compromise which continued to remain valid and binding on the parties. According to the said compromise, rent was payable by the respondent at the rate of Rs.25 per month and the person who was entitled to receive rent and the person who was liable to pay rent were also clearly mentioned. The compromise, therefore, constituted a valid tenancy agreement between the parties. Not only that, but the respondent had further agreed to clear the arrears from First Janufkry, 1969 till February, 1974 within the period of one month. Admittedly, since the respondent failed to pay either the agreed rent to the appellants' predecessor or the arrears thereof, in terms of the said compromise, he clearly, committed default. The contention of Mr. Mirza Abdul Rashid that a fresh tenancy agreement was necessary under the circumstances is not tenable. Even if no agreement was signed, the compromise itself constituted a valid tenancy agreement. Since it is not denied by the respondent that default had been committed by him, I allow this appeal and set aside the order of the learned Rent Controller and further direct that the respondent may put the appellants in peaceful possession of the premises in question. Mr. Mirza Abdul Rashid requests that for six months' time be granted to the respondents for putting the appellants in possession of the premises. The same, by consent of Mr Arif Bilal, is allowed. There will be no order as to costs. M.Y.H Appeal allowed.