SHAHID ANWAR BAJWA, J.-~ Facts giving rise to this Constitutional Petition are that petitioner No,l is tenant in respect of Shop No,27, adjacent to Hanfia Alamgir Jamia Masjid, area 2-A, Sector 37-K, near Babar market, Landhi No,3, Karachi since July 1993. Ejectment application was filed by the landlord on July 7, 2006 on the ground of subletting, impairment and default from October 2007 to June 2008. Learned Rent Controller vide his order dated 12-3-2009 dismissed the ejectment application. Being aggrieved by the order passed by the Rent Controller appeal was filed by the landlord/present respondent No, 1 and appellate Court vide order dated 25-7-2009 allowed appeal and ordered for ejectment on grounds of default. The ground of subletting and impairment were rejected by the appellate Court. Learned counsel for respondent No,l at the very outset conceded that he is not aggrieved by rejection of grounds of subletting and impairment.
2. Learned counsel for petitioner made the following submissions:
(i) Learned counsel referred to cross- examination of witnesses of landlord and submitted that landlord had himself admitted that Zulfiqar Ahmed and Moin Ahmed who used to collect rent lastly collected rent for 17 months. Relevant part of cross-examination is in the following words:- "I have filed this rent case in 2007. It is correct that authority letter produced at Exh. A/A/l-H is at 18- 12-2006. There are 167 shops of the applicant. It is correct that Zulfiqar Ahmad and Moin Ahmed collect the rent from the tenant's at the shops of applicant. It is correct that all the notices sent by the applicant produced by me are addressed to the opponent No,
1. It is correct that Zulfiqar has received rent at the shop in question for the period from April 2006 to August 2007 amounting to Rs,2499< vide receipt No,3387 dated 1-9-2007 on behalf of the applicant. Vol says that rent was received by Zulfiqar on request of the tenant. It is incorrect that after receiving the rent upto August 2007 no one from the applicant went to collect the rent from the tenant of shop No,27. I don't know that thereafter, the opponent No, 1 sent the rent through money order No,4918 dated 21-7-2008 which was refused to be received by the applicant. It is incorrect that the applicant refused to receive the rent through money order therefore, opponent started depositing the rent in M.R.C. No, 181/2008. I came to know about deposit of rent in M.R.C, after filing of written statement by the opponent in this case. It is correct that the opponent is depositing the rent in M.R.C. No, 181/2008 but I don't know whether he has deposited the rent upto December 2008."
(i) Learned counsel there fore submitted that there as established practice that rent was paid in arrears in lump sump.
(ii) While referring cross-examination of Moin Ahmed learned counsel relied upon part of cross- version of Moin which is as follows: ' It is correct that I and Zulfiqar Ahmed used to collect the rent from the tenants of the shops. It is correct that the opponent sent the rent through money order to the applicant which was refused to be received at office of applicant vol; says that it was refused because the applicant had already filed this rent case against the opponent. "
(iii) Legal notice sent by landlord was received by the tenant and immediately upon receipt of it the tenant contacted landlord for payment of rent but landlord refused to receive it. Therefore the tenant sent* rent through money order which was also refused. Consequently, the tenant started depositing rent in M.R.C.
3. On the other hand learned counsel for respondent made the following submissions:-
(i) That it was admitted that there was default of 9 months. He referred to the following cross- examination: "After receiving legal notice the rent for 9 months was offered to be paid to the applicant. It is correct that I myself had not gone to pay the said rent to the applicant."
(ii) If one landlord collected rent for a period of 17 months it can not be treated as practice. At least it was an instance of leniency showed by the landlord.
(iii) That ejectment application was filed in July 7, 2008. Money order was dated 27-8-2008 and rent was deposited in MRC on 4-8-2008. Learned counsel relied upon Zulfiqar Hussain v. Mrs. Tazeeni Chaudhry 1986 CLC 393 and Amir Ali Khan through Legal Heirs and others v. Masoodur Rehman Farooqui 2008 CLC 1134.
4. Exercising his right of reply learned counsel for petitioners submitted that money order was sent before he was served with notice of the ejectment application.
5. I have considered submissions made by the learned counsel. I have also gone through record as well as case law cited by the learned counsel.
6. In Zulfiqar Hussain's case appellant was in possession of disputed premises as tenant. Ejectment application on ground of default of payment Was allowed. Against this order appeal was filed. It was held that rent was allegedly sent to landlord by cheques through post but it was admittedly sent after ejectment application had been filed. Therefore it was held to be of no consequences. It was further held in this case that rent sent through cheque is not a valid tender. On the question of payment of rent in lump sum it was held as under:~ "it is also not denied that the appellant has been paying the rent in lump sum for more than one month. According to the learned counsel for the appellant this was done as per practice that has evolved in due course of time. It may be observed that such practice has always been disapproved by the superior Courts which have always construed it as a sort of connection emanating from the helplessness of the landlord. The Courts have therefore, been of the view that such condonation of the tenant's lapses by the landlord should not be interpreted as a practice giving licence to the tenant to adopt the same as if it is a perpetual arrangement made with willing consent of the landlord. "
7. In Amir Ali Khan's case default in payment of rent was admitted by the tenant and ejectment was ordered.
8. Same is the position in this case. As pointed out above, tenant has himself admitted in his cross- examination that he sent rent for a period of 9 months in July 2008 and that too after ejectment application had been filed. Moreover, evidence is very clear on the point that default had occurred.
9. Trial Court observed that nothing is mentioned in the plaint that any of the said rent collectors went to collect rent to the shop-in-question after September 2007 and said Moin Ahmed admitted that opponent had sent rent through money order to the applicant who refused to receive and consequently same was deposited in MRC. On both these counts judgment of the trial Court is not sustainable. On first count because it is obligation of tenant to pay rent and not obligation of landlord to collect; and second count because trial Court totally ignored the fact that default commenced in October 2007, money order was sent on 27-8-2008 i.e, after ejectment application which application was filed on July 7, 2008.
9A. As far as question of practice is concerned, firstly, complete answer is given in Zulfiqar Hussain's case and secondly 17 months could be a condonation or leniency and cannot be considered as established practice. If on one occasion or even almost few occasions landlord has been lenient to the tenant, there is nothing in law absolving the tenant of his obligation to pay rent or to pay it in time.
10. Constitutional petition No,S-542 of 2009, is therefore, dismissed in limine along with listed application.