1. ' This Second Appeal filed by appellant/tenant is directed against the judgment dated 26-4-1978 of learned Additional District Judge Karachi whereby appeal filed against order of ejectment passed by learned Rent Controller on 4-9-1977 has been dismissed.
2. ' Briefly stated facts giving rise to this appeal are that the two respondents in this appeal who are brothers inter se, are joint owner of property situate on Plot No, 81/CRE, Flyn Street Karachi, a portion of which is rented out to the appellant/tenant at monthly rent of Rs, 100 by virtue of agreement dated 28th April, 1968 executed by the parties. The said agreement inter alia high lights two conditions that monthly rent is payable on or before fifth day of every calendar month in advance and the tenant shall not sublet the premises without written consent of the landlord. Application for ejectment under section 13(2) of West Pakistan Urban Rent Restriction Ordinance 1959 was filed on 4th August, 1972 by the respondents before the Rent Controller alleging therein default in the payment of rent for 5 months from 1st March, 1972 to 31st August, 1972, conversion of premises by tenant from godown to a factory, subletting without permission and nuisance. Appellant/tenant filed written statement denying default and averring that in view of the understanding between the parties, the landlord used to collect rent periodically after 3-4 months each time. The rent in question was tendered by the tenant but not accepted by the landlord. Other allegations were denied and it was claimed that disputed premises were let out to Messrs Associated Electrical Interprises, a partnership firm, which was subsequently converted into a limited concern and landlord received and accepted rent from the new firm. In view of the pleadings of the parties the following issues were framed :-
(1) Has the opponent committed default in payment of rent ?
(2) Does the use of premises in dispute by opponent accounts to a nuisance.
(3) Has the opponent sublet the premises.
(4) Relief.
3. ' Abdul Sattar, one of the two owners of the demised premises examined himself as P. W. 1 and produced agreement Exh.
6. In cross-examination he admitted that his brother Feroze Ahmed issued two receipts to the tenant, which were brought on record as Exhs. 7 and 8 showing acceptance of rent for three months from September to December, 1971 and December 1971 to February, 1972 respectively. From the side of tenant Muhammad Ilyas Accountant was examined as P. W. 1 and tenant Muhammad Hamiduddin examined himself. After considering the evidence the learned Rent Controller found Issue No, 1 in favour of the landlord and gave findings in negative with regard to other issues and consequently allowed application for ejectment. In appeal the learned Additional District Judge upheld the findings of Rent Controller on issue with regard to default and additionally also gave positive finding in favour of landlord in respect of issue of subletting, which resulted in dismissal of appeal.
4. ' Mr. Amjad Hussain learned Advocate for the appellant has contended before me that there is no default in the payment of rent as the landlord himself adopted the practice of accepting rent on collective basis and the tenant was under genuine impression that rent was to be paid periodically.
5. The rent in question was sent to the landlord which was not accepted by him as such the default is not deliberate and discretion should have been exercised by Controller not to pass order of ejectment on that ground. Reliance is placed by Mr. Amjad Hussain on the case of Meharban Ali v.
6. Haji Kassim (1). I am afraid the ruling cited is distinguishable for the reasons that firstly in that case there was no agreement executed by the parties and secondly that the landlord while deposing before the Rent Controller had admitted in his statement that he used to receive rent collectively and periodically. Further in that case the tenancy commenced on the basis of rent notes, which was for a period of 11 months, whereby the tenant admitted to pay rent at the rate of Rs, 200 against receipt in advance on the first of every month. The case of the tenant was that the landlord accepted rent periodically after intervals and not regularly every month. Three receipts were produced to show that rent was accepted by the landlord on collective basis. It was contended on behalf of tenant that he had tendered rent to landlord for the period of April, 1973 to June, 1973 which was duly received by the landord but he did not issues any receipt on the ground that he had no painted receipt at the time. The tenant tendered rent for the month of July, 1973 which was not accepted and subsequently under compelling circumstances the tenant sent an amount of Rs, 800 being rent for the months of July to October 1973 which was refused by the landlord. The three receipts produced by the tenant showed that landlord accepted rent for two months, i,e, February and March 1973 by the first receipt and for three months from November 1972 to January, 1973 by the second receipt and for three months from August to October, 1972 by the third receipt. The landlord in that case not only admitted having issued the receipt mentioned above but in his statement further admitted that he used to receive rent collectively and periodically. Evidence produced by the parties also indicated that although the tenant was occupying the premises in question for the last 10-12 years, there was no allegation in the statement of the landlord that the tenant had ever defaulted before April, 1973, which fact was considered in conjunction with the statement of landlord as P. W. 3, wherein he had alleged that rent was not paid to him since April, 1973 and from that an inference was drawn that the landlord prior to that period had been receiving rent regularly though periodically. It was in these circumeances that it was held in that case that it was always open to tenant to show in such cases that mode of payment of rent was changed contrary to the terms of agreement arrived 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 is
(1) PLD 1976 Lah. 1052 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.
7. ' In the instant case the facts are different inasmuch as that firstly there is an agreement executed between the parties, which clearly states that rent is to be paid at the rate of Rs, 160 per month on or before 5th day of every calendar month in advance for which receipt is to be obtained from the landlord. Secondly the landlord does not admit having adopted the practice of accepting rent from the tenant in lump sums after intervals in the past, although he had admitted that the two receipts produced by the tenant were issued by his brother, who is joint owner of the demised premises. It was contended by Mr. Ismail Munshi, the learned Advocate for the respondent, that in presence of written agreement to which the tenant is a party, it is not open to the tenant to go back on one of the conditions stipulated therein with regard to the payment of rent regularly every month and allege that the landlord was in the habit of collecting rent periodically. The learned counsel has relied upon the decision in the case of Riaz All v. Shabbir Ahmed Khan (1), in which it is held 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 of the Evidence Act). Moreover, the receipts of rent by the respondent for several months 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 was further held that the Rent Controller had the discretion under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 to condone delay in payment of rent but that discretion is to be exercised judicially and not in an arbitrary manner. Default of 10 months could not be condoned on any hypothesis. This view was further reiterated in another case of Sheikh Muhammad Hassan & Company v. Mian Mahmood Ahmad Khan (2) by their Lordships of the Supreme Court, wherein it has been held that the contention that the practice grew-up according to which tenant paid rents in lump sum every six months or one year, which is neither pleaded by tenant in written statement nor proved, contract of such description, even otherwise, is contrary to provisions of section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
8. In another case of Muhammad Alimullah v. Ziaul Islam (3) Dorab Petal, J. (as his Lordship then was) has held that when tenant takes a plea for non-payment of rent being that the landlord wanted to realise rent in lump sum in large amount, which fact modified the written agreement and such particulars of modification are neither given in written statement nor in defence evidence, the alleged modification is not proved and the tenant cannot lead evidence in variation of terms and conditions of agreement which he had executed.
9. ' In the instant case the stand taken by the tenant in his written statement is that the landlord runs a shop under the name and style of "Kathoris Paint Home" and pursuaded the tenant to practice thinner and spirits from his factory and offered that the bills for the said items should be paid to him by the tenant on his demand and as far as the rent of the demised premises was concerned, he would come and collect the same from the tenant whenever so required by the landlord. In view of this an understanding and confidence was established between the parties and the landlord used to come
(1) 1971 SCMR 598 (2) 1975 SCMR 355
(3) PLD 1973 Kar. 56 after 3-4 months to collect the rent from the tenant which had become the usual practice of the payment and collection of rent. It is further stated in paragraph 3 of the written statement that in between the period of 1st March, and 31st August, 1972 the tenant on a number of occasions offered rent to the landlord but every time it was expressed by the landlord that there was no hurry in making the payment of rent and the tenant should be regular in purchasing thinner and spirit from the landlord on payment of his bills. When Abdul Sattar, one of the two joint owners of the premises in question examined himself, he was confronted with two receipts, Exhs. Nos, 7 and 8, which were admitted by him to have been issued by his brother Feroze Ahmed Exh. 7 relates to rent for three months, i,e, September, October and November, 1971 amounting to Rs, 480, exhibit relates to the acceptance of rent for three months, i,e, December 1971, January and February, 1972 which amounts to Rs, 480. Apart from these two receipts no other receipt has been produced by the tenant to show that the landlord used to accept rent in lump sum in the past also when the agreement shows that the tenant was inducted into possession of the landlord premises on 29th April, 1968. Abdul Sattar has denied allegations that he used to came and collect rent from the tenant after interval of 3-4 months. He stated in his cross-examination that the tenant used spirit and thinner in his factory and he had prohibited him from doing so as he had let the premises only for the purpose of using the same as godown and not as factory. He further stated that he did not give any writing to the tenant not to use thinner and spirit but prohibited him orally. This witness has further admitted that he deals in colouring and paints and no suggestion was put to him that he supplied spirit and thinner to the tenant. He admitted that he used to supply varnish to the tenant on payment of price by cheque. He has denied that he used to collect rent after 3-4 months. As against this appellant himself when examined before the Controller took a somersault and stated that the landlord used to come after 3-4 months to collect the rent, which he used to adjust against the amount which was due to the landlord due to the purchase of goods by the landlord from him. This statement is in complete contrast with the stand taken by the tenant in his written statement in which it was stated that the tenant used to purchase thinner and spirit from the landlord. Further in the cross- examination Muhammad Hamiduddin has stated that he has mentioned the amount of goods which were purchased by the landlords in his books of account but he could not say when the landlords purchased goods from him. The tenant also examined Muhammad Ilyas as P. W. 1 who was working with him as Accountant since 1971. He has testified that since date the tenant is inducted into possession of the disputed premises he has been paying the rent regularly to the applicant. He has further stated that landlord used to collect rent after 2-3 months and only some times he issued receipts and some times did not. He has further stated that since the landlord failed to collect the rent, he sent him rent of six months by money order and the landlord refused to accept the same which are Exhs. 13 and 15.. As against this evidence the appellant has produced 6 letters on a pro forma addressed to Feroze Ahmad and Abdul Sattar landlords which are Exhs. 17 to
22. These cyclostyled letters purport to be letters sent by Accountant with cheques as payment of rent. It was contended by Mr. Amjad Hussain, that these letters and cheques were sent in response of bills of rent sent by the landlord but in all these Exhibits the column which relates to bill number of the addressee is not filled in and shows that no bills were sent by the landlord. On the contrary in that particular Column it is mentioned by the Accountant as to for what period the rent was being sent. Exhs. 21 and 22 contain provisional receipts also but they do not contain signature of receiver.
10. These six documents instead of helping the case of tenant proves the case of the landlord because all these letters which contain cheque numbers also show beyond doubt that monthly rent was being remitted by the appellant to the respondent. Exh. 17 relates to payment of rent for the month of January, 1960, Exh. 18 to December, 1968, Exh. 19 to November, 1968, Exh. 20 to March 1969, Exh. 21 to May, 1969 and Exh. 22 to April, 1969. None of these documents shows that the tenant ever paid to landlord rent in lump sum.
11. ' In these circumstances there is not sufficient evidence on the record, rather there is no evidence on the record to support the plea of tenant that the landlord used to collect rent periodically with the exception of two receipts Exhs. 7 and 8. Both these receipts show that rent from September to November, 1971 and from December 1971 to February, 1972 for three months in each case was accepted by the landlord on two different occasions. Both these receipts show that the rent related jointly to a single period of six months from September 1971 to February 1972. Acceptance of rent by the landlord for this period of six months on two occasions does not show that he was in the habit of accepting rent periodically. Had it been so, the appellant could have been in a position to adduce more documentary evidence in support of his plea. It would not be out of place to mention here that in the same context claim of the tenant that the landlord need to supply him thinner and spirit also stands falsified because of contradictory evidence given by the tenant. The burden of proving the plea that the landlord himself departed from the terms of agreement and adopted the habit of accepting rent after long intervals of time does not stand proved. In these circumstances I feel inclined to hold that appellant has failed to produce satisfactory evidence to prove that landlord himself accepted rent periodically as against clear provision in the agreement that rent was to be paid every month. If the landlord has accepted rent from the tenant on two occasions as per receipts, it can be said that it was an act of indulgence on the part of the landlord to condone default and the same cannot be adopted by the tenant to be a plea to the effect that the landlord has varied the terms of the agreement by his conduct to accept rent periodically.
12. ' The next issue with regard to subletting is also contested: Agreement Exh. 6 on the record shows that the premises in dispute were let to Muhammad Hamiduddin of Messrs Associated Electrical Enterprises. This agreement is signed by Muhammad Hamiduddin in his private capacity. Clause
(4) of the agreement clearly provides against subletting of the premises to third party without written statement of the landlord. The respondents contended that the demised premises have been sublet by Hamiduddin without permission in writing of the landlord as stipulated in the said agreement. In paragraph 9 of the written statement it is claimed tha the premises in dispute were rented out to Messrs Associated Electrical Enterprises, which was a partnership firm represented by the appellant. That partnership firm was converted into a limited concern since August, 1971 and since then the landlord had been accepting rents and issuing receipts in the name of new firm.
13. This claim of the appellant is also not established by any satisfactory evidence on record. No document has been produced by the appellant to show that partnership firm was dissolved or converted into a limited concern since 1971. The averment that the landlord deals with the new firm by accepting rent from it and issue receipts in the name of new firm is also not proved. First of all Exh. 6 which is agreement dated 29-4-1968 clearly shows that it was not signed by Hamiduddin as representative of Messrs Associated Electrical Enterprises. Secondly the two rent receipts Exhs. 7 and 8 which have been produced by the appellant and relied upon by them clearly prove that the rent was accepted not from Messrs Associated Electrical Enterprises but from Hamiduddin in his private capacity. There is absolutely no mention of Messrs Associated Electrical Enterprises in these receipts. It is contended on behalf of the appellant that documents Exhs. 17 to 22 on the record show that 25% was being remitted on behalf of Messrs Associated Electrical Enterprises. These letters no doubt have been sent by the Accountant of the said firm but no receipts have been produced by the appellant to show that rent was accepted from this firm. Mr. Ismail Munshi Advocate for respondents has contended that if a person obtains tenancy rights in his own name subsequently assigns them to a firm or a private limited concern, it cannot be said that no change has taken place in the status of tenant or that it is not a case of subletting or assignment of tenancy rights. Reliance is placed by him on the case of Manek J. Mobad and others v. Shah Behram and others t1). It has-been held that in case that a person holding leasehold rights in his own name and subsequently assigns then to a firm or a private limited company consisting of his own family members, it cannot be said that no change had taken place in the status of tenant and the case would be one of subletting or assignment of leasehold rights. By analogy the ratio of this ruling would be applicable to the facts of this case, ' In these circumstances I hold that the appellant had sublet the premises without written permission of the landlord as required under the agreement executed between the parties. The judgment of the First Appellate Court impugned in this appeal is therefore, maintained and this appeal is dismissed with costs, The appellant is directed to hand over vacant possession of the premises in question to the respondents within two months from the date of this judgment.
14. (11 PLD 1974 SC 351