' This second appeal has been brought by one Muhammad Bashir who has been directed to vacate a house belonging to the respondent, Muhammad Iqbal.
2. The ejectment of the appellant was ordered by a Rent Controller on the ground that he had failed to pay rent for the period from April to July 1976, and his finding was upheld by an Additional District Judge while dismissing the first appeal preferred by the appellant.
3. It was not disputed by the learned counsel for the appellant that according to the terms of the tenancy, as originally settled, the rent was to he paid by the appellant on monthly basis but he had not paid rent for the aforesaid period. He, however, contended that before taking out ejectment proceedings against the appellant, the respondent had, on a a number of occasions, accepted rent from him collectively and, therefore, the respondent could not seek his eviction on the ground that the rent for the said four months had gone in arrears. He relied on Mehrban Ali v. Haji Muhammad Qasim (1) and Sajjad All Khan and 2 others v. Peer Bux G. Mehar (2) to support his contention.
4. It was not denied by the learned counsel for the respondent that the respondent had been receiving accumlated rent but he maintained that for that reason alone the respondent could not be non-suited. In this connection, he relied on Rifaqat Ali v. Muhammad Bashir Qureshi (3).
5. As for the authorities relied upon by the learned counsel for the appellant, the case of Mehrban All related to a tenancy created by means of a rent note. According to the terms of the rent note, rent for each month was to be paid in advance against a receipt. The tenant produced three receipts showing payment and acceptance of rent on collective basis. It was, therefore, held by my learned brother Zakiuddin Pal, J. That by accepting the rent as aforesaid, the landlord had changed the terms and conditions of the tenancy and, therefore, could not seek ejectment of the tenant for non-payment of rent for a continuous period of five months. The relevant observation of his Lordship reads thus "The terms and conditions, as mentioned in the rent note Exh. P. 1, are subject to rebuttal which I think has been proved by the appellant on satisfactory basis. If he had produced only one receipt showing the payment of rent on collective basis, the same may not have proved his case. He has produced as many as 3 receipts showing that the rent was accepted by the landlord periodically after intervals. It is always open to a tenant to show in such cases that mode of payment of rent was changed contrary to the terms of the agreement arrived PLD 1976 Lill. 1052 (2) PLD 1972 Kar.
220 (3) PLD 1979 Lab. 444 at between the parties. If it is proved to be so then it does not mean that such change cannot be taken into consideration as the same had come into being by the consent of the parties. In such a case tenant can be under a genuine impression that since payment of rent is to be made periodically, therefore, there would be no default on his part if he pays rent after some intervals. In the present case the terms and conditions of the tenancy, so far as the payment of rent is concerned had been changed by the conduct of the landlord himself who had been accepting rent periodically and who by his conduct gave impression to the appellant that if he pays rent even after some months, he would not commit any default. This fact is also proved by the statement of the landlord himself, as referred to above."
' The case of Sajjad Ali Khan and 2 others related to a statutory tenancy which came into existence by operation of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In that case, the landlord was in the habit of accepting rent from the tenant in lump sum and, therefore, the Rent Controller refused to order his ejectment on the ground of non-payment of rent by him for the period from May to December 1964 holding that there was no willful default on the part of the tenant. It was held by a learned Single Judge of the erstwhile High Court of Sind and Baluchistan that the Rent Controller had exercised his discretion judicially and properly in favour of the tenant.
6. Now, I advert to the case of Rifaqat All cited by the learned counsel for the respondent. In that case certain premises were let out to the tenant on his executing a rent note. According to the recitals of the rent note, the rent was to be paid on monthly basis but the landlord had, in fact, received rent collectively for six months on one occasion and for two months on another. The ejectment of the tenant was sought on the ground that he had committed default in payment of rent for the period from December, 1976 to March, 1977. The Rent Controller found that he had not paid rent for the aforesaid period and, therefore, ordered his ejectment on the ground of default.
His order having been affirmed by an Additional District Judge, in appeal, it was assailed before this Court on the ground that as the landlord had been receiving rent collectively and periodically, the non-payment of rent for the aforesaid period did not constitute a valid ground for his ejectment. In this connection, reliance was placed on Mehrban Ali's case in which it was held that the mode of payment could be changed by practice. This view was, however, not shared by my learned brother Aftab Husain, J., who decided the case of Rafaqat Ali: On the other band, his Lordship endorsed the following opinion expressed by another learned Judge of this Court, Muhammad Afzal Zullah, J. (as his Lordship then was), in the case of Muhammad Shafi v. Zahir Husain and another (1).
"The conclusion that can safely be drawn......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 case the default is not wilful."
(1) PLD 1978 Lah. 862 ' As for the effect of the recovery of rent collectively by the landlord in the case of Rafaqat Ali, his Lordship (Aftab Husain, J.) observed as under :- "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 he 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 pre-occupation with his own affairs, fear of the expenses and hezards 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."
' The Karachi case, referred to by his Lordship, is Mohamed Alimullah v. Zlaul Islam (1).
7. The principle which can be deduced from the authorities cited above is that if according to the terms of a tenancy, as originally settled. The rent is to be paid on monthly basis but subsequently it is agreed upon by the parties that the rent will be paid periodically, or the landlord makes the tenant believe that his ejectment would not be sought on the ground of default if the rent was not paid on monthly basis, the landlord would not be able to evict the tenant for non-payment of rent on monthly basis.
8. No such agreement as aforesaid was pleaded by the appellant before me nor the same was proved by means of evidence on the record. The fact that the respondent had received the rent for some months in lump sum shows that he had condoned his default for the said months and not that he had consented to vary the terms and conditions of the agreement of lease relating to payment of rent. This is exactly what was ruled by their Lordships of the Supreme Court in Syed Riaz All v. Shabbir Ahmad Khan (2) and Muhammad Alam v. Noor Muhammad (3).
(1) PLD 1973 Kar. 56
(2) 1971 SCMR 598
(3) 1973 SCMR 606
9. Now I proceed to examine whether the respondent had conducted himself in such a manner as to convey to the appellant that he would not be taken to task if he did not pay the rent on monthly basis. Appearing as his own witness (R. W. 3), it was stated by the appellant, Muhammad Bashir that he generally paid rent to the respondent after three months and sometime after four months and that he (respondent) never objected to his not paying the rent at the end of each month.
When cross-examined, he stated that once he paid rent for 21 months, in lump sum. In January, 1976, he paid rent for 26 months collectively. He added that he used to pay rent when it was demanded by the respondent. According to him, the rent was not demanded by the respondent earlier. He went on to say that ever since the commencement of the tenancy, the respondent never demanded rent and that he used to pay rent for 2 to 4 months, in lump sum suo motu. On the other hand, the respondent, Muhammad Iqbal (A. W. 3) and his two witnesses namely, Abdus Sattar, (A.
W. I) and Shafique (A. W. 2) deposed that the appellant used to pay rent at intervals and that too after the persistent demands of the respondent, According to them, he had not paid rent for the period in dispute. Of the said witnesses, Abdus Sattar is doing business in partnership with the son of the respondent, but his other witness, namely, Shafique appears to be an independent one. I would, therefore, rely on the respondent's evidence in preference to the bald statement of the appellant and hold that the respondent was constrained to receive rent for several months in lump sum, because of the indifferent attitude of the appellant towards his obligation to pay the rent regularly. In other words, it will not be correct to say that the appellant was ready and willing to pay the rent on monthly basis but the respondent opted to receive it collectively and periodically or let the rent of several months ago in arrears for having failed to make timely a demand of rent after it had fallen due. As ruled in the case of Mohamed Alimullah it was the duty of the tenant to pay or tender rent to the respondent even if it was not demanded by him but the appellant had failed to discharge that duty. Thus, the rent had accumulated due to the fault of the appellant and not on account of any act of omission or commission on the part of the respondent. In this view of the matter, I am unable to hold that the respondent had conducted himself in such a manner as to make the appellant believe that he would not be proceeded against if the rent was not paid at the end of each month.
11. Learned counsel for the appellant also maintained that since the respondent had not taken out ejectment proceedings against him as soon as he had committed the foremost default in the payment of monthly rent, the respondent was estopped from seeking his ejectment on the ground of default.
12. A perusal of his reply to the ejectment application would reveal that the plea of estoppel was not raised therein by the appellant. The respondent would have been estopped from seeking ejectment of the appellant on the ground of default if he had ever conveyed to him, b words of mouth or otherwise, that he would not ask his ejectment from the premises in dispute for nonpayment of rent on monthly basis. There is, however, no evidence in this behalf. As regards the acceptance of rent by the respondent at intervals, this, by itself, does not debar him from applying for his eviction on the plea of default. It was, in fact, an indulgence shown to the appellant that the respondent did not launch ejectment proceedings against the appellant as soon as the first default had occurred, but as observed in the case of Mohamed Alimullah the "recipient of an indulgence cannot claim any right or equity to its continuance". In the circumstances, it does not lie in the mouth of the appellant to assert that since the respondent had overlooked the initial default on his part, the respondent had forfeited his right to seek his ejectment on the score of subsequent defaults. The plea of estoppel is, therefore, not accepted.
13. In result, I hold that the order of ejectment passed against the appellant is unexceptionable. His appeal is, therefore, dismissed with costs. He is, however, allowed a period of two months to vacate the property in dispute,