By his order dated the 6th May 1978, Mr. Mumtaz Hussain Malik, Rent Controller, Lahore, ordered the ejectment of the appellant on the ground of default in payment of the rent. This order was upheld in appeal by Mr. Muhammad Azim Khan, Additional District Judge, Lahore, on the 19th November 1978.
2. It was admitted by the appellant during his cross-examination that he had executed a rent note which contained stipulation for payment of monthly rent and the mode of payment. Despite this he placed reliance upon 11 receipts to prove a practice of payment of rent of several months in lump sum and its acceptance by the respondent without demur. The learned Rent Controller held that writing of these receipts belied the appellant's contention. He particularly referred to receipts marked VIII to marked X which were for periods of 6 months, 2 months and 1 month respectively.
3. The same argument was repelled by the learned Additional District Judge who observed that the receipts proved on the record did not establish any consistent habit of paying the rent for the period of more than one month. He further observed that if there was such a practice, there was no need to send the rent for the month of December 1976 to March 1977, monthly through money orders.
4. The learned counsel for the appellant urged the same argument of a practice of payment of periodical rent at one time. He relied upon Mehrban Ali v. Haji Muhammad Qasim (PLD 1976 Lah.
1052) in which it was held that the mode of payment can be changed by such practice. Support for this finding was sought from Syed Riaz Ali v. Shabbir Ahmad Khan (1911 SCMR 598), Messrs Textile Trading Co. Ltd. v. Syed Jalil-ur-Rehman and 7 others (1972 SCMR 384), Muhammad All Ahmad v.
Ziaul Islam (PLD 1973 Kar. 56) and Sajjad Ali Khan and 2 others v. Pir Bakhsh Jl Mehr (PLD 1972 Kar.
220).
5. After studying the .Case-law, I find that on the basis of the same Supreme Court authorities a contrary view was taken in Muhammad Shaft v. Zahir Hussain and another (PLD 1978 Lah. 862) by my learned brother Muhammad Vial Zullah, J., who held that : "The conclusion that can safely be drawn from the ruling of their Lordships (reference is to the Supreme Court cases referred to above) is that although such a practice could not change the terms of tenancy nor the legal liability of the tenant to eviction could be affected by such conduct the same could be utilised for invoking the discretionary power of the Controller to decide against eviction in casethe default is not wilful."
7. In view of this divergence of opinion I have gone through the caselaw relied upon in the two cases of the Lahore High Court and am in full agreement with the view taken in Muhammad Shaft v. Zahir Hussain and another. In Syed Riaz Ali v. Shabbir Ahmad Khan the Rent Controller and the District Judge had condoned the delay keeping in view that the respondent was responsible for giving a false impression to the petitioner that rent will be collected periodically. The High Court reversed this judgment and ordered ejectment of the tenant. Their Lordships of the Supreme Court agreed with the view of the High Court that the discretion should be exercised judicially and not in an arbitrary manner and default of ten months could not be condoned on any hypothesis. In regard to the argument about development of the practice their Lordships said that : "In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92. Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent."
It is clear from this statement of law that in the view of their Lordships sections 91 and 92 of the Evidence Act were a complete bar to the proof of variation of terms and conditions of the written agreement of lease by the development of any such practice.
8. In Messrs Textile Trading Co. Ltd. v. Syed Jalil-ur.Rahman and 7 others the argument of the tenant that there was an agreement between him and the landlord whereby the rent was payable only when the Rent Collector of the landlord turned up to collect it, was repelled by the High Court. It was argued in the Supreme Court that there was no default as there was an implied agreement that the rent was to be paid in a lump sum only when the rent-collector of the landlord would come to collect it. Their Lordships did not agree with this argument on the ground that no such implied agreement was pleaded in the written statement. Moreover, such a practice of payment of rent in a lump sum had been denied by the rent-collector. It was, therefore, held that the petitioner had failed to prove that the practice was so consistent as to give rise to an implied agreement.
9. This case cannot be considered to be an authority for or against the above proposition. It is not clear from the facts whether there was at all a written agreement between the parties laying down the necessary terms and conditions regarding the mode of payment of the rent or whether the tenancy was or was not a monthly tenancy. On the facts of that case it was held that the implied agreement was not proved. There is no observation about the view that the Court might have taken, in case such an agreement had been established on the record.
10. The last Supreme Court case is Muhammad Alain v. Nur Muhammad (1973 SCMR 606) but in that case while finding against the emergence of such a practice it was held that no practice to the contrary could whittle down the requirement of law. The relevant observation is as follows "Another aspect of the case is that the appellant was required to pay rent by the 5th of every month as stipulated in the rent deed Exh.
27. If he failed to pay rent within fifteen days after expiry of the date fixed in the agreement of tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law."
11. Their Lordships, however, agreed that the Rent Controller could condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month, since in that case it could be said that there was no deliberate default.
12. The Karachi case of Muhammad Ali Ahmad v. Ziaul Islam does not lay down any proposition to the contrary. The judgment in that case was given by Dorab Patel, J. (as his Lordship then was). It was held that even if a landlord receives rent at long intervals, this does not necessarily lead to the conclusion that it was in pursuance of an agreement not to receive rent at the end of every month.
A landlord's failure to collect- rent regularly may be due to many reasons; pre-occupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant, etc. It is significant that after holding that no such agreement was proved, a reference was made to an observation in Riaz Ali v. Shabbir Ahmad Khan by Yaqoob Ali, J., that "in law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act".)
13. It was argued that the conduct of the landlord in receiving the rent at long intervals would estop him from ejecting the respondent on ground of default. In that connection it was held that : "An estoppel can arise only where a party has altered his position to his detriment on account of the representation of another, and it must always be borne in mind that the burden of proving this plea falls heavily on the party alleging it. Merely because a landlord receives rent at long intervals from his tenant, can this by itself amount to evidence of a representation on his part which has induced the tenant to alter his position to his detriment? As I have explained, there can be many reasons for a landlord's failure to take action against a tenant who is in arrears of rent . . . . . (the evidence produced in. The case) cannot possibly spell out any estoppel."
There is nothing in this judgment in support of the proposition decided in the case of Mehrban Ali v.
Haji Muhammad Qasim.
14. The last case of Sajjad Ali Khan and 2 others v. Pir Bakhsh Ji Mehr does not lay down any such proposition. It merely holds that in case of proof of acceptance by the landlord of rent after intervals of months, in a fit case where it can be held that there was no wilful default on the part of the tenant on the basis of such practice, the discretion under section 13 can be exercised in favour of the tenant.
15. The two propositions-the first of implied agreement contrary to express written agreement and secondly, exercise of discretion-should not be confounded. They are clearly distinguishable.
Wherever the question has been considered by the Supreme Court or by the High Court of Sind & Baluchistan, it has been pointed out that no such variation by conduct or even by oral agreement can be proved to displace, add to or vary the terms and conditions of tenancy of written agreement in view of sections 91 and 92 of the Evidence Act. It has also been laid down in the Karachi case that if the landlord accepts rent after the expiry of along period in a lump sum that did not estop him from applying for ejectment on ground of default, if the default is brought home to the tenant on account of his failure to pay rent within 15 days from the day of payment as stipulated in the agreement.
16. The only proposition favourable to the tenant which can be found out in the case of Muhammad Alain v. Nur Muhammad is that if such practice is proved, discretion might be exercised by the Rent Controller against eviction of the tenant. But this proposition is qualified by the condition that such discretion can be exercised only if the Rent Controller is satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. If the Rent Controller is not satisfied about this condition, the matter would be governed by the case of Syed ' Riaz All v. Shabbir Ahmad Khan where it was held that discretion should be exercised judicially and not in an arbitrary manner and default, of ten months should not be condoned on any hypothesis. It will not, therefore, be correct to say that if the landlord' accepts rent for long periods the discretion against eviction should be automatically exercised in favour of the tenant, From such conduct it cannot be implied that the landlord had made the tenant believe that the rent was not payable by him every month. There may be several reasons why the landlord has accepted the rent after the tenant had made the default. As held in the Karachi case, the acceptance by the landlord of rent at long intervals does not necessarily lead to the conclusion of such an agreement. His failure to collect rent regularly may be due to preoccupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc. In the case of Syed Riaz Ali v. Shabbir Ahmad Khan it was pointed out that the receipt of the rent for several months at a time may be a proof of condonation of default by the landlord and not of any consent to vary the terms and conditions of lease regarding payment of rent. In view of these diverse possibilities, unless there be a definite proof to that effect it cannot be inferred from such conduct of the landlord that he had made the tenant believe that the rent was not payable monthly by him. There must be specific proof on the record in order to arrive at such a conclusion before the Rent Controller exercises his discretion in favour of the tenant. In other words, there must be material on the record to prove that the default was not wilful or deliberate.
17. These authorities of the Supreme Court and the High Court of Sind and Baluchistan are sufficient answer to the argument of the learned counsel for the appellant but there is one other aspect of the case. Clause (i) of subsection (2) of section 13 defines default. It provides that if there be an agreement and time for payment is fixed therein the default shall accrue after expiry of 15 days from the time fixed. In the absence of any agreement the default will accrue after 60 days from the period for which the rent is payable. The word 'agreement' clearly means a specific agreement arrived at between the parties, and excludes a mere implied agreement. The statute, therefore, provides one period for actrual of default in case of specific agreement fixing the time of payment and a different period in case of absence of an agreement to that effect. In these circumstances, there is no scope for the introduction of any agreement to be implied by the conduct of the landlord in accepting rent of long period If there be no specific agreement, the tenant shall be in default immediately after the expiry of 60 days from the period for which the rent is payable. It would not be permissible to imply any such agreement from the conduct of the parties in view of the provisions of section 23 of the Contract Act which declares a contract to defeat the provisions of a statute, as being void. The conduct of the landlord in these circumstances, would not be relevant except for the exercise of discretion by the Rent Controller against eviction of the tenant.
18. The appeal is without merit and is dismissed in limine.