This second appeal is directed against the order dated 17-8-1978 granting the respondent's application for ejectment, passed by the 2nd Additional District Judge, Karachi in Rent Appeal No. 530 of 1975, setting aside the 7th Civil Judge and Rent Controller's order dated 6-8-1975 in Rent Case No. 558/71, dismissing the respondent's above rent application.
The facts leading to the filing of the above appeal are that the respondent filed the above Rent Application for ejectment in respect of a shop situated on Plot No. 115/C, Central Commercial area, off Tariq Road, P. E. C. H. S, Karachi (which was let out to the present appellant in 1968 at Rs. 175 per month), on the ground of default in payment of monthly rent for the period commencing from April, 1970 to February, 1971, amounting to Rs. 1,925. The appellant contested the above application and filed written statement, averring therein, that there was no default committed by him inasmuch as Rs. 350 being the rent for October, November. 1969 was paid against the receipt No. 3 dated 19-4- 1970 Exh. 8, Rs. 700 being the rent for January to March, 1970 was paid against the Receipt No. 9, and a sum of Rs. 1,050 was paid through Cheque No. CBR-803332 dated 20-8-1970 drawn on Messrs United Bank Ltd., Tariq Road, being the rent for April, to September, 1970 for which the respondent did not issue any rent receipt. It was also averred that the appellant sent a letter dated 19-10-1970 under registered acknowledgement receipt, Exh. 14 demanding the rent receipt, but the respondent did not send any reply. It was further averred that the appellant again on 27-3-1971 sent a sum of Rs. 700 through money order No. 3879 being the rent for October, 1970 to March, 1971, but the same was refused by the respondent.
(2) (a) On the basis of the above pleadings, the following two issues were framed by the learned Rent Controller :-
(i) Whether the appellant is a defaulter in payment of rent for the period from 1-4-1970 to February, 1971 ?
(ii) Relief.
(b) The respondent in support of her application examined her former attorney one Ibrahim P. W. 1 Exh. 5 and also her husband Muhammad Ahmad (who also held a special power of attorney since February 1975) P. W. 2 Exh. 11, whereas the appellant examined himself as D. W. 1 Exh.
16. The learned Rent Controller after hearing the parties dismissed the application on the ground that the respondent had been accepting accumulated rent from the appellant some times in cash and some times through cheques and, therefore, there was no wilful or deliberate default committed by the appellant in payment of rent to the respondent. However, upon appeal filed by the respondent, the learned First Appellate Court did not agree with the above finding of the learned Rent Controller and came to a contrary conclusion by holding that neither any practice was pleaded by the present appellant in his written statement to the effect that the respondent used to accept accumulated rent in lump sum for the months together nor it had been established on record that there existed any such practice between the parties. It was further held that according to the appellant's own averments in the written statement there was no doubt that the appellant admittedly committed defaults in payment of monthly rent which he was required to pay every month before 15th of each calendar month which he had failed to do. The appellant being aggrieved by the above judgment of the learned first appellant Court filed the present second appeal.
3. (a) In support of the above appeal, Mr. Khalid Ishaque learned counsel for the appellant has urged the following points.
(i) That the learned first appellate Court was not justified in reversing the finding of the learned Rent Controller inasmuch as the respondent had failed to prove that the appellant was in arrears of rent for the period commencing from April, 1970 to February, 1971 amounting to Rs. 1925.
(ii) That the learned first appellate Court could not have granted ejectment on a ground other than pleaded by the respondent in her rent application.
(iii) That in order to succeed it was incumbent upon the respondent to prove that the appellant was a wilful defaulter i.e. the respondent was willing to accept rent and the appellant was not willing to pay rent.
(b) Whereas Mr. Muhammad A.I Sayeed learned counsel for the respondent has urged the following contentions :-
(i) That under clause 4 of the tenancy agreement dated 1-9-1968 Exh. 6, the appellant was obliged to pay rent regularly without fail in advance monthly rent by the 5th of each calendar month and that admittedly the appellant committed breaches of the above term.
(ii) That even if it is to be held that the respondent failed to prove that the appellant was in arrears of rent for the period from April, 1970 to February, 1971, amounting to Rs. 1,925, but it cannot be denied that the respondent b1s proved that the appellant had committed defaults in terms of section 13(2) (i) of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance).
(iii) That this Court while hearing a second appeal cannot set aside a finding of fact of the first appellate Court though contrary to the trial Court, unless it is to be found to be perverse.
4. (b) Before taking up the contentions raised by the learned counsel for the appellant, it will be necessary to deal with the contention of the learned counsel for the respondent that the appellant under clause (4) of the Tenancy Agreement dated 1-9-1968 Exh. 6, was obliged to pay rent in advance A by 5th of each month as it will be relevant for the purpose of determining the question, as to whether in the instant case the issue of default is to be dealt with on the basis of the terms of the above agreement or on the basis as .If there was no agreement.
Alifdin v. Khadim Hussain (1), in which Anwarul Haq, C. J. And Nasim Hassan Shah, J. Held that a tenant continuing in occupation of property after termination of the tenancy, remains subject to the terms of the lease deed/agreement, and approved a D. B. Lahore case, namely, Muhammad Ashraf v. Muhammad Sharif and 3 others (2) in which the same view found favour with a Division Bench comprising of the present Chief Justice of Pakistan and Mr. Justice Sardar Muhammad lqbal.
The above rulings support the contention of Mr. Muhammad A.I Sayeed. However, a larger Bench of the Supreme Court has recently taken a contrary view in the case of Muhammad Yousuf v.
Abdullah (3). In Civil Appeal No. K-90/78 (decided on 30-8-1980), wherein the majority view com-- prising of Dorab Patel, Muhammad Haleem and Abdul Kadir Sheikh, JJ. Was that upon the expiry of the period of lease/tenancy agreement the tenant becomes a statutory tenant under the Rent Restriction Ordinance and that the terms and conditions of the lease/tenancy agreement cease to apply. Whereas, Naseern Hassan Shah, J. Concurred with the conclusion arrived at on merits, but dissented from the majority view on the question of correct tress of the aforesaid Lahore case of 1971 and held that the same was correctly decided. In other words Mr. Justice Naseem Hasan Shah adhered to the view taken in the aforesaid earlier Supreme Court case, namely, Alifdin v. Khadim Hussain. Since the case of Muhammad Yousuf v. Abdullah has been decided subsequently by a larger Bench, I am bound to follow the latter case. In fact I had followed the aforesaid judgment of the Supreme Court recently in First Rent Appeal No 23 of 1980, decided by me on 8-11-1980. In this view of the matter the contention of the learned counsel for the respondent that the appellant was obliged to pay monthly rent in advance by 5th of each month because of clause (4) of the expired agreement dated 1-9-1968 Exh. 6 is untenable.
(1) 1980 SCMR 767(2) PLD 1971 Lah, 6110
(3) PLD 1980 SC 298
(b) It may be pertinent to mention that the period mentioned in the aforesaid agreement was 11 months, which had expired on or about 1-8-1969, and, thereafter, the appellant had become a statutory tenant and the term B and conditions contained in the aforesaid agreement were no longer bind on the parties as their rights and obligations in respect of the payment o rent were to be regulated in terms of section 13(2) (i) of the Ordinance It will be advantageous .To reproduce hereinbelow the above provision ofthe Ordinance and a proviso to the above subsection, which read as follows :-- "Section 13.-(1) . ------------------------------------------.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applica--petition, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable ; or
(ii) ------------------------------------. the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the, application; it may be noticed ' that' under the above provision of law if a landlord seeks ejectment of a tenant on the ground of non-payment of rent, he is required to prove that the tenant has not paid or tendered rent due from him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within 60 days from the period for which rent is payable. But before passing an ejectment order on the above ground a rent Controller is obliged to give a reasonable opportunity to the tenant.
Furthermore, Rent Controller has discretion to refuse ejectment on the above ground if the facts of the case warrant such a conclusion.
5. (a) The contentions raised by the learned counsel for the parties referred to hereinabove in para. 3(a) are inter-connected and, therefore, can be taken up together. It may again be pointed out that the respondent had sought ejectment of the appellant on the ground that he was in arrears of rent for the period commencing from April, 1970 to February 1971, amounting to Rs. 1,925, which he had failed to pay in spite of repeated demands in this behalf. Whereas the plea of the appellant was that he had paid rent for the period mentioned in para. 2 of the written statement in the manner specified therein, referred to hereinabove in para. 1. The appellant has been able to prove the payments mentioned in para. 2 of the written statement through rent receipts Exhs. 8 and 9 and through Messrs United Bank Ltd. Certificate dated 3-3-1975 Exh.
17. Exh. 8 is a receipt undated showing the payment of rent for the months of October and Novem--ber 1969, whereas Exh. 9 is a receipt dated 1-8-1970 being for the rent for the months of December, 1969 to March 1970, amounting to Rs. 700. Whereas Exh. 17 is a certificate issued by Messrs United Bank Ltd. Tariq Road Branch certifying that Cheque No. CBR-803332 for Rs. 1,050 issued by Amir A.I Rehmatullah on 1-8- 1970 in favour of Ibrahim, was collected by Messrs Habib Bank Ltd. Burns Garden Branch in clearing on 22-8-1970. It has been vehemently urged by Mr. Muhammad A.I Sayeed that Exh. 8 being the receipt for October and November, 1969 cannot be relied upon by the appellant for the reason that the same was given against Cheque No. 785919, which was dishonored. In support of the above contention the learned counsel for the respondent has invited my attention to Messrs Habib Bank Ltd's. Certificate dated 29-12-1970 Exh. 7, certifying that the above cheque was dishonoured with the remark "not arranged for" and also to the statement of P. W. 1 Ibrahim, who has deposed that the opponent had paid rent for 2 months by cheque which was dishonoured by the Bank in the year 1969. However, in cross-examination he has admitted the fact that in the above receipt Exh. 8, it was not mentioned that the same was given against the above cheque. He has further admitted that in fact be had issued Exh. 8 for the months of October, and November, 1969. On the other hand, it has been urged by Mr. Khalid Ishaque that the respondent having not pleaded the above fact of dishonouring of the above cheque cannot be permitted to raise the same. His further contention was that the appellant in his deposition has explained that upon dishonouring of the above cheque, he had paid the rent in question in cash, for which the above receipt Exh. 8 was given.
Apart from the fact that the respondent has not raised any such plea in her rent application, in my view there is no reliable evidence on record to conclude that in fact the appellant had not paid the rent for the months of October and November, 1969. On the contrary from the following documentary evidence/facts, the payment of the above rent has been proved;
(i) Rent. Receipt Exh. 8 does not mention that it was issued against any cheque.
'(ii) That the appellant in his letter dated 19-10-1970 Exh. 14 sent, under registered A. D. Had specifically stated that he had paid the rent amounting to Rs. 350 against receipt No. 3 dated 19-4- 1970. The above letter was not replied to by the respondent refuting the above allegation.
(iii) That the respondent has not made any averment in the rent application to the effect that the aforesaid rent receipt Exh. 8 was not binding on her for the reason that the cheque was dishonoured.
(iv) The respondent did not send any letter either for cancelling the above rent receipt Exh. 8 upon dishonouring of the cheque or for calling upon the appellant to pay the above rent.
(v) That the respondent has not alleged any default in respect of the above two months, October and November, 1969.
(b) On the State of the evidence on record the appellant has been able to prove that in fact he had paid rent up to the period expiring on 30-9-1970--in the following manner
(i) Exh. 8, rent for the months of October and November, 1969-Rs. 350.
(ii) Exh. 9 rent for the period from December, 1969 to March, 1970 Rs. 700.
(iii) Exh. 17, Messrs United Bank Ltd.'s certificate dated 3-3-1975 certifying the payment of Rs. 1,050 which catered for the period commencing from April, 1970 to 30-9-1970.
It has also been proved that on 27-3-1971 the appellant sent a money Order (N. 3879) for a sum of Rs. 700 for the period of October, 1970 to January 1971, and not up to March, 1971 as averred in the written statement by the appellant, which was refused by the respondent as she had already filed rent application on 1-3-1971. It may be pertinent to mention that the appellant in his aforesaid letter dated 19-10-1970 Exh. 14 addressed to the respondent pointed out to her that the appellant was surprised when the respondent's representative called on him demanding the rent of the premises and further pointed out that he had made payments in the aforesaid manner and requested her to issue rent receipt against the aforesaid cheque for Rs. 1050, being the rent for the months of April, 1970 to September, 1971. It is an admitted position that no reply to the above letter was sent by the respondent nor any rent receipt for the period from April, 1970 to September, 1970 was issued. After that without receiving any receipt or reply the appellant sent the aforesaid money order on 27-3- 1971 for the period from October, 1970 to January, 1971.
It may also be pertinent to observe that Mr. Muhammad A.I Sayeed has also invited my attention to the fact that above Exh. 8 does not bear any date, whereas the appellant in his aforesaid letter dated 11-10-1970 has given 19-4-1970 as the date of the aforesaid receipt and the fact that the appellant in his written statement as well as in his aforesaid letter dated 19-10-1970 has mentioned 20th August, 1970 as the date of the cheque for Rs. 1,050, whereas in the aforesaid Messrs United Bank Ltd's certificate the date of the cheque given is 1-8-1970. In my view, the above discrepancies are of no significance inasmuch as P. W. 1 Ibrahim has admitted the issuance of the rent receipt Exh. 8 for the two months mentioned therein and, therefore, the fact that no date of the issuance was mentioned in the above rent receipt would not make any difference. Furthermore, no default for the period mentioned in the said receipt has been averred in the rent application as pointed out hereinabove. It is true that in the written statement as well as in his aforesaid letter dated 19-10- 1970 the appellant had mentioned 20th August as the date of the above cheque, whereas the Bank in its aforesaid certificate had given 1-8-1970 as the date of the cheque. However, the above discrepancy is also of no significance inasmuch as the cheque number given by the appellant in his written statement as well as in his aforesaid letter dated 19-10-1970 is the same which has been mentioned in the above Bank's certificate Exh.
17. Furthermore, the above cheque was presented for clearance on 22-8-1979. It seems that the appellant must have given the above cheque approximately on or about 20th August, 1970. In view of the above state of evidence on record the respondent has failed to prove the default as alleged in the rent application i.e. default for the period commencing from April, 1970 to February, 1971.
6. (a) However, the question which remains to be considered is, as to whether there was any alleged default subsisting in terms of section 13(2)(i) of the Ordinance at the time of filing of the rent application.
It has been urged by Mr. Khalid Ishaque that since the appellant had alleged a specific default, the learned First Appellate Court was not justified in setting up a new case for the respondent and in granting ejectment on a new ground, namely, that there were repeated defaults according to the appellant's own averment. Whereas it was contended by Mr. Muhammad A.I Sayeed, learned counsel for the respondent that under section 13(2)(i) of the Ordinance, what is to be proved by a landlord, is default/defaults within the meaning of the above provision and that there was no legal requirement to specify the period of default in view of the fact that the law of pleading is not applicable to rent cases. Mr. Khalid Ishaque has referred to the case of Muhammad Saddiq v. Mst.
Ghafuran Bibi (1), the case of Syed Rashid Hussain and 2 others v. Hussain Haji Ahmad (2), the case of Messrs Faridsons Ltd. And another v. Government of Pakistan (3), the case of Sardar Ashiq Muhammad Khan Mazari and .3 others v. Chairman, Federal Land Commission Islamabad and 4 others (4) and the case of Niaz A.I v. Ibrahim (5).
Whereas Mr. Muhammad A.I Sayeed has relied upon the case of Subhan A.I alias Sobho v. Mst. Sat Bai (6), the case of Haji Fida Hussain v. Muhammad Ibrahim Khan (7), the case of Messrs Textile Trading Company Ltd. v. Syed Jalilur Rehman and 7 others (8), the case of Muhammad Alimullali v.
Ziaul Islam (9), and the case of Alifdin v. Khadim Hussain (10).
(b) Reverting to PLD 1971 SC it may be observed that the facts of the above case were that wife brought a suit for dissolution of marriage on the ground of habitual cruelty, non-maintenance and misappropriation of property and ornaments. Upon finding against plaintiff on all the above points the suit was dismissed by the trial Court. However, the High Court granted dissolution of marriage by way of 'khula". It was held by the Supreme Court that the procedure adopted by the High Court was highly improper as the defendant in the suit did not have the opportunity of contesting the above issue on the question of 'khula' '.
(c) With reference to 1973 Note (Karachi), it will suffice to observe that in the above case it was held that though the provisions of Civil Procedure Code are not applicable to proceedings under the Rent Ordinance, but a party cannot be allowed even in rent proceeding to advance a plea inconsistent with his own plea.
(d) Reverting to PLD 1961 SC it may be stated that the licence of Messrs Faridsons to act as an importer and exporter was suspended without any prior notice, which action was held to be illegal by the Supreme Court inter alia on the ground that no person should be condemned unheard and that the above suspension was in violation of the above principle of natural justice. It was observed by Cornelius, J. That, "I found that the proceedings are judicial if the matter has to be decided on evidence produced and after opportunity to the person concerned to meet the case against him, and the determination can form the basis of an order entailing civil consequences to a party".
(e) Reverting to PLD 1977 Lahore, it will suffice to observe that while deciding a writ petition against the order passed under Martial Law Regulation 115 by the Federal Land Commission, it was observed by Mushtaq Hussain, J. That "the purpose of the issuance of notice to a party whose rights are to be determined is that he should not be condemned unheard. Hearing of course requires that the person to be heard should be in the know of the case that he has to meet".
(1) PLD 1 71 SC 192(2) PLD 1973 Note 138 at p. 209
(3) PLD 1961 SC 537(4) PLD 1977 Lah. 461
(5) PLD 1976 Lah. 1057(6) PLD 1964 Kar. 206
(7) 1972 SCMR 262(8) 1972 SCMR 384
(9) PLD 1973 Kar. 56(10) 1980 SCMR 767 (f ) With reference to PLD 1976 Lahore, it may be observed that in the above case the facts of the case were that the landlord filed a rent application for ejectment on the ground that the tenant was in arrears of rent for the period commencing from April, 1973 to August 1973. The above application was granted by the learned Rent Controller, which was upheld by the learned 1st Appellate Court. The tenant filed a second appeal in the High Court, 2 orders of the Courts below were set aside. It may be observed that in the above case it was pleaded by the tenant that the landlord used to receive rent periodically after intervals and not regularly every month. In support of the above averment he produced 3 rent receipts. It was also alleged by the tenant that in fact he had paid the rent for the aforesaid months, for which no rent receipt was issued by the landlord. On the basis of the above averments, it was held that the landlord failed to prove that the tenant had committed a deliberate default and that it was a fit case, in which the discretion should have been exercised in favour of the tenant. Zakiuddin P.I, 1., observed as follows in para. 11 of the judgment; "It has been argued on behalf of the respondent that in case of non--payment of rent, it is obligatory to pass ejectment order against the tenant. Such question can be resolved only in the circumstances of each and every case. If default has been committed by a. Tenant deliberately then order of ejectment against him should be passed, but in case deliberate default is not proved then it is discretionary with the Controller to pass such order. He may or may not pass ejectment order against the tenant in the ,given circumstances of the case though default in the payment of rent is proved. It has been held to be so in Muhammad Shafi v. Iqbal Ahmad and another and Major Feroze Din Khan v. Sh. Muhammad Amin."
(g) Reverting to the case of PLD 1964 Karachi, it may be stated that in the above case it was held that a default committed by a tenant cannot be wiped out or erased, nor a penalty incurred be stayed off by subsequent pay--ment. The above observation was made with reference to the contention raised by the learned counsel for the tenant before the High Court in the Second Appeal that since the filing of the second appeal in the High Court, his client has been most punctilious in payment of his monthly rent to the respondent landlady at the enhanced rent.
(h) With reference to 1972 SCMR, it will suffice to observe that it was held that tender of rent in terms of section 13(2)(i) should be within time prescribed therein and that the fact that the defaulting tenant had deposited rent with the Rent Controller before the ejectment application was moved by the landlord is of no consequence.
(i) Reverting to 1973 SCMR 384, it may be observed that the conten--petition raised by the learned counsel for the tenant that the Rent Collector of landlord used to come at intervals of several months and used to collect rent in lump sum was not accepted and it was held that the above implied term was never pleaded by the petitioner in his written statement. It was further held that as the landlord's Rent Collector having denied the above practice the tenant failed to prove that the practice was so consistent as to give rise to an implied agreement.
(j) Reverting to PLD 1973 Karachi, it may be stated that in the above case it was pleaded by the tenant chat as the rent amount was small, the landlord himself wanted to realise in lump sum in large amounts. It was held as the modification of the statutory obligation was alleged, burden of proof of the above modification heavily was on tenant, and that since no particulars modifying agreement were given in the written statement nor in defence evidence, the alleged modifying agreement was not proved. 1t was further held that in view of sections 91 and 92 of the Evidence Act, the tenant could not have led evidence on variations of the terms of the agreement.
(k) Whereas in 1980 SCMR 767 it has been held that acceptance of rent by a landlord after due date does not make the relevant term in the lease deed as to the payment of rent on due date inoperative and only means condonation of default.
7. From the above-cited cases the following principles can be deduced;
(i) That a Court cannot grant relief entirely on a new ground not pleaded iii the pleadings e.g., a dissolution of marriage by way of 'khula' ' cannot be granted if the suit for dissolution was filed on the grounds of cruelty, non-maintenance etc.
(ii) That though strictly the law of pleading is not applicable to rent proceedings, but even in a rent case a party cannot be permitted toraise a plea at the trial which is inconsistent with the pleas raised by him in his pleadings.
(iii) That a party should have a fair opportunity to meet the case of the other party as disclosed.
(iv) That payment of rent by a tenant after committing default will not erase such default unless from the conduct and the facts of the case, it can be inferred that the landlord had waived/condoned the default.
(v) That the acceptance of rent by the landlord after due dates mentioned in the lease deed/tenancy agreement shall not constitute variation of the agreement or will not render such conditions inoperative, but it would amount to condonation of the specific breaches.
(vi) That a tenant cannot be permitted to urge that there was any practice in respect of payment of, accumulated rent periodically unless he pleads the same in the written statement or gives full particulars of such payments in written statement, and leads evidence in respect thereof.
(vii) That a Rent Controller is not obliged to grant an application for ejectment if from the facts and circumstances of the case, it appears that there was no deliberate default on the part of the tenant.
8. From the evidence on the record the following facts stand proved.
(i) That after the expiry of I1 months mentioned in the tenancy agree--ment, dated 1st September, 1968 Exh. 6, there was no fresh agreement in writing.
(ii) That till August 1970, the respondent's Rent Collector P. W. I Ibrahim used to collect rent from the appellant at his place, which fact has been admitted by the above P. W. 1 in his cross-examination.
(iii) That in August 1970 the power of attorney in favour of P. W. 1 Ibrahim was terminated, thereupon the said witness through his letter dated 14th September, 1970 Exh. 10 asked the appellant to pay the arrears and current rent to the respondent directly either by cash or cheque.
(iv) That on 19th October, 1970 the respondent's representative called on the appellant and demanded arrears of rent, though no rent was due. Whereupon the appellant wrote his aforesaid letter dated 19 October, 1970 Exh. 14 to the respondent giving full details of the payments made by the appellant towards the rent and requested her to issue a rent receipt for a sum of Rs. 1,050, which was remitted through a cheque mentioned therein towards the rent for the months of April 1970 to September, 1970.
(v) That the respondent did not send any reply to the appellant's above letter Exh. 14 nor sent the rent receipt requested for.
(vi) That before the service of the notice of the rent application, the appellant sent money order No. 3879 on 27-3-1971 for a sum of Rs. 700 for the period commencing from October, 1970 to January 1971, but the above money order was refused by the respondent on the ground that she had already filed a rent application i.e. 1-3-1971.
8. (a) Reverting to the contention of Mr. Khalid M. Ishaque, that the learned 1st Appellate Court has set aside the order of the learned Rent Controller and has granted ejectment proceeding on a ground other than the ground pleaded in the rent application, it may be observed that he has referred to para. 4 of the rent application, which reads as follows; "That the opponent has committed default in the payment of monthly rent inasmuch as he has failed and neglected to pay the due and lawful rent from the month of April, 19;0 to February, 1971 amounting to Rs. 1,925 (Rupees One Thousand Nine Hundred and Twenty- Five only) to the applicant in spite of her repeated demands in this behalf, hence this application for his eviction."
It may be noticed that from the above-quoted para. 4 of the application, it is evident that the respondent has made the following two averments for the purpose of seeking ejectment .
(i) That the appellant failed and neglected to pay due and lawful rent for the period commencing from April, 1970 to February, 1971, amounting to Rs, 1925.
(ii) That the appellant in spite of the respondent's repeated demands in this behalf failed and neglected to pay the above amount.
It has been proved as pointed out hereinabove that the rent for the above period was not due and payable at time of the filing of the rent application, but rent for the period commencing from 1st October, 1970 to February, 1971, was due and payable. It has further been proved that the respondent never demanded the payment of the alleged arrears of rent from the appellant after the receipt of his aforesaid letter dated 19th October, 1970 Exh.
14. It is also evident that in spite of the receipt of the appellant's aforesaid letter, the respondent was insisting upon for the payment of rent for the period commencing from April, 1970, though she had already received payment admittedly up to 30th September, 1970 through the cheque mentioned in M/s. United Bank certificate dated 3rd March, 1975 Exh. 17, inasmuch as that she had filed the present ejectment proceeding on the basis that the appellant had not allegedly paid rent since April, 1970. Theth learned counsel for the appellant's above contention that the learned 1st Appellate Court has granted ejectment on a ground other than the ground pleaded by the respondent is not devoid of force. Since the respondent had not sought. Ejectment for any default allegedly committed prior to April, 1970, the learned 1st Appellate Court could not have relied upon on any alleged default allegedly committed by the appellant priorto the aforesaid month namely April, 1970. Furthermore, it was not the case of the respondent in the rent application that the rent for the period commencing from April, 1970 to September, 1971 was not paid by the appellant within the statutory period, on the other hand the averment was that in spite of repeated demands the appellant had failed to pay rent for the period commencing from April, 1970 to February, 1971. In this view of the matter the respondent could not have relied upon the delay if any in payment of rent for the above period commencing from April, 1970 to September, 1970.
(b) As regards the question as to whether the 1st Appellate Court could grant ejectment on the ground that at the time of the filing of the rent apple--cation, the rent for the period commencing from October, 1970 up to February, 1971 was not paid, it may be pertinent to mention that in terms of sec--petition 13(2)(1) of the Ordinance, the rent for the month of October, 1970 could be paid by 31- 12-1970, for the month of November, 1970 by 30-1-1970, for December by 1-3-1971 and for January, 1971 up to 1-4-1971. Since the appellant sent a money order on 27-3-1971 for the period commencing from October, 1970 to January, 1971 (which was refused by the respondent as she had already filed ejectment application) there was no default in respect of January and February, 1971. However, it can be urged that there were defaults in respect of October, November and December, 1970 at the time filing of the rent application in question. "the Controller may make an order directing the tenant to put the landlord possession of the building . . . . . . . . ," have been used in section 13(2), whereas in section 13(6), it has been provided that if a tenant makes default of a rent order passed under the above subsection, his defence shall be struck off and the landlord be put into the possession of the property. The use of the word "stall" in subsection (6) of section 13 in contrast to the word "may" in subsection (2) of section 13 clearly indicates :hat the word, "may" used in the latter subsection is to be construed as "may" and not as "shall" and, therefore, Rent Controller has discretion in the matter. Furthermore, even while interpreting section 13(6) the High Courts and the Supreme Court of Pakistan have consistently held that in considering the question of default under section 13(6) if Rent Controller is satisfied that the default has occurred for a reason beyond the tenant's control, he may decline to strike off the tenant's defence. In this regard it will suffice to refer to an extract from the judgment of the celebrated case of Ghulam Muhammad Lundkhor v. Safdar A.I PLD 1967 SC 530 , which reads as follows :- "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order or direction."
(c) In view of the fact that Rent Controller has discretion in a case of non-payment under section 13(2) of the Ordinance, the question which requires consideration is, as to whether in the instant case the learned Ist Appellate Court was justified in interfering with the discretion exercised by the learned Rent Controller in favour of the appellant, and to grant eject--ment application. The latter question leads us to a further question, as to whether there were circumstances in the instant case as to warrant the exer--cise of discretion by the learned Rent Controller in favour of the appellant.
In my view the learned Rent Controller could have exercised discretion in favour of the appellant because of the presence of the inter alts following facts in the instant case.
(i) That on 19-1OR1970 the respondent had demanded rent for the period commencing from April, 1970 to September, 11970, though she had already received the payment of rent for the above period as evidenced by Exh. 17.
(ii) That the respondent after the receipt of the appellant's aforesaid letter dated 19th October, 1970, Exh. 14 did not send any reply nor demanded the tent for the correct period. On the other hand the respondent has filed the rent application in question on the assump--petition that the rent was due since April, 1970.
(iii) That the respondent failed and neglected to issue rent receipt for the period commencing from April, 1970 to September, 1970 in spite of the request made by the appellant through his letter dated 19th October, Exh. 14.
(iv) Though it was not expressly pleaded by the appellant that there was any practice of making payment of accumulated rent periodi--cally but full details of such payments were given in para. 2 of the written statement, which averments have been proved by the appel--lant at the trial. The object of the law of pleadings seems to be that other party shall not be taken by surprise. If a party gives full particulars of the mode of payment in his written statement from which it can be spelled out that the landlord without protest has been accepting accumulated rent periodically in the immediate past prior to the filing of the rent case, in my view the omission to raise the plea of practice in the written statement will hot be fatal as the law of pleading is not strictly applicable to rent proceedings. In this view of the matter the learned Rent Controller while considering the question as to whether to grant the ejectment application in question or not for non-payment of rent could have taken into consideration the fact that the respondent had been accepting accumulated rent for a few months in the past without any protest.
(v) That the appellant sent money order for Rs. 700 on 27-3-1971 being rent up to January, 1971, which was refused by the respondent for the reason stated hereinabove. The above tender was in consonance with the past practice and was prior to the service of the notice of the rent case which was effected on 8-4-1971.
(vi) That in view of the above facts, the instant case is not a case of deliberate default.
(d) I may observe that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2) (i) of the Ordinance, but if a landlord by his representation/conduct/omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance is not to be adhered to, and, thereafter the landlord wishes to enforce the above provision strictly, in that event, in my opinion, the landlord should first put the tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of the above provision or in any case the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein. Any other view will result in miscarriage of justice. It is a matter of common knowledge that during last few years in Karachi occupancy values inter alia of commercial premises and their rental have been enormously increased, which has generated desire on the part of some landlords to cause eviction of their tenants and in order to achieve the said object, they deliberately cause the commission of default in payment of rent by the tenants.
9. That in view of the above discussion, it is evident that the learned Rent Controller did not exercise discretion in favour of the appellant arbi--trarily or capriciously or unreasonably, and, therefore, the learned Ist Appel--late Court was not justified in interfering with the discretion exercised by the learned Rent Controller. However, the question which remains to be con--sidered is, as to whether this Court while considering the case in a second appeal can interfere with an order of the 1st Appellate Court. It has been vehemently urged by Mr. Muhammad A.I Sayeed, learned counsel for the respondent that this Court cannot interfere with a finding of fact arrived at by a lst Appellate Court, unless it is found to be perverse. In support of the above contention he has referred to the case of Umer Sorts Ltd., Karachi v. Tahir Corporation 1974SCMR384, in which the Supreme Court maintained the finding of the Ist Appellate Court and of the High Court and it was observed that the concurrent finding of fact cannot be assailed unless it is a case of misreading of evidence by the Courts below. In my view the facts of the above case are distinguishable from the instant case inasmuch as there is no concurrent finding of the two Courts below on the question of default. In this regard, it may be pertinent to refer again to the aforesaid 1976 Lahore and also of 1973 Karachi case referred to hereinabove in para. 6. In the former case the High Court interfered with the concurrent finding of the two Courts below on the question of default in favour of the landlord and had set aside ejectment order, by holding that the two Courts below did not exercise discretion properly. Whereas in the above Karachi case, the High Court reversed the judgment of the 1st Appellate Court in the second appeal and restored the order of the Rent Controller and held that the Ist Appellate Court was not justified in setting aside the order of the Rent Controller on the question of default. In my view as in the instant case the learned 1st Appellate Court was not justified in interfering with the discretion exercised by the learned Rent Controller, this Court is E competent in the above second appeal to rectify the above error committee by the lst Appellate Court. In this view of the matter I allow the appeal and set aside the older of the learned lst Appellate Court under appeal and restore the order of the learned Rent Controller dated 6-8-1975, with the result that the respondent's rent application standsdismissed. However, there will be no order as to costs.