Syed YAQOOB SHAH BOKHARI vs Sheikh SHAH MUHAMMAD and others

' On 6-10-1999 the respondent filed an application for ejectment of the appellant from the building in question comprising of a house also containing four shops located in the urban area of Dina, District Jhelum, In the application it was alleged that the appellant has sublet the property to one Ch. Muhammad Ashfaq without his consent; that the appellant had not paid rent for five months; that the value of the building has been materially impaired and that despite notice the appellant had failed to vacate the building. The appellant filed a written reply denying the said allegation.

The factum and existence of the written agreement of tenancy was admitted. The allegation of default was denied with the explanation the appellant had paid the rent upto August, 1999 while the rent for September, October, and November, 1999 had been deposited in Court.

2. The learned Rent Controller framed issues and somehow or the other he gathered the impression that the respondent also has sought ejectment on the ground of personal bona fide requirement and further proceeded to frame Issue No,4 covering the said plea as well. Evidence was recorded. The learned Runt Controller found that the allegation of default stands proved as also the bona fide personal requirement of the respondent. He ordered the ejectment of the appellants vide order, dated 24-5-2000. Feeling aggrieved the appellant filed a first appeal which was heard by learned District Judge, Jhelum. The learned District Judge took note of the fact that the ground of personal bona fide requirement was not pleaded at all land proceeded to reverse the findings on the said issue No,4. However, the findings recorded by the learned Rent Controlling pertaining to default committed by the appellant were upheld. Consequently, the first appeal was dismissed on 17-10-2000.

3. Sh. Zamir Hussain, learned counsel for the appellant contends that the learned District Judge unduly placed a stress upon the absence of receipt for the payment of the rent of the said five months when the respondent in somewhat vague terms admitted not to have issued any receipt for the rent received by him. Further contends that the terms as to payment of rent in advance are unlawful and as such no default stands made out. Learned counsel for the respondent, on the other hand, argues that a reply given by the respondent to one of the questions in cross- examination does give the impression as gathered by Sh. Zamir Hussain, Advocate but according to Mr. Mumtaz Ali Khan, Advocate the matter was not carried any further and it was not ever suggested to the respondent that he did receive the rent for the said five months and did not issue a receipt. Learned counsel then contends that even if the said contention being raised on behalf of the appellant is accepted in tow the default for the month of September, 1999 stands established on record.

4. I have considered the said contentions of the learned counsel for the parties in the light of the record in the brief of Sh. Zamir Hussain, Advocate. It is an admitted fact that relationship between the parties was governed by an agreement in writing and it was a term of the agreement admitted to be correct by the appellant while appearing as R.W.1 that rent at the agreed rate of Rs,3,500 per month was payable in advance till 5th day of each month subject to receipt and that without receipt no rent shall be deemed to have been paid. Now this is a matter of record that the rent for September, 1999 was deposited by the appellant on 12-11-1999. Now on a plain reading of section 13(2) (i) of the Rent Restriction Ordinance, 1959 the appellant has not paid or tendered rent due by him in respect of the building in question within 15 days after the expiry of the time fixed in Exh.A.4, i,e,, the 5th day of September.

5. As to the said second contention of the learned counsel for the appellant that the provision for payment of rent in advance in the agreement (Exh.A.4) is void, the learned counsel for the respondent has brought to my attention judgment in the case of Muhammad Bacot. Qureshi v. Mst.

Razia Begum (1981 SCM R 18) wherein the apex Court has observed that the said section 13(2)(i) comprises of two parts dealing with two different and distinct situations. In the first part it stipulates a situation where a time is fixed in the agreement of tenancy for payment of rent and in such a case the phrase "rent due by him" means the rent which has become due according to the terms of the tenancy and if it is not paid within 15 days after the expiry of the time fixed in the agreement then the tenant is liable to ejectment. It has further been observed at page 21 of the report: "The intention of the law clearly is to preserve the sanctity of the mutual contract as to the time agreed upon for the payment of rent, which becomes due on the date stipulated in the agreement.

If the agreement stipulates the payment of advance rent by, a certain date, then rent becomes due on that day."

' The said observation of the Supreme Court completely answers the said contention of the learned counsel for the appellant. I must note here that Sh. Zatnir Hussain, learned counsel for the appellant in all fairness has brought to my attention the judgment given in the case Mirza Abdul Aziz Beg v.

Mushtaq Ahmed Sheikh (1980 SCM R 834). This judgment though controverts the said contention of the learned counsel but squarely cotters the present case. Incidentally in the said case it was also the payment of rent for the month of September, which was in dispute and the Hon'ble Acting Chief Justice Dorab Patel (as his Lordship then was) held that the rent of September had to be paid within 15 days of 1st of September, (in the said case the date fixed for payment of advance rent was the Ist day of the month). Nothing, therefore, turns on the said argument of the learned counsel for the appellant. No other point has been urged. The S.A.O. Is accordingly dismissed. The appellant shall deliver possession of the premises in question to the respondent on or before 30-9-2001 failing which the respondent shall be at liberty to get possession of the building by executing the impugned orders of ejectment. No order as to costs.