1. ' This is a IInd appeal arising from the order IInd Additional District Judge, Karachi dated 16-8-1975, whereby the judgment of the XIth Civil Judge and Rent Controller, Karachi, dated 13-5-1975 had been upheld whereby the ejectment application of the appellant had been dismissed.
2. ' The appellant/landlord had sought the eviction of the respondent from Shop No, 2, Shahrah-a- Iraq on the ground of default in payment of rent. The rate of rent was Rs, 125 per month and it was alleged by the appellant that the respondent was a defaulter in payment of rent and had defaulted of rent from 1st June, 1965 to 30th August, 1966. The appellant had claimed that the rent was payable in advance.
3. ' The respondent had denied that he was a defaulter and claimed that the rent was being collected by the Rent Collector of the appellant at his own convenience in an irregular manner and that the ejectment application was designed to harass the respondent who had installed an Air- Conditioner at his shop. Following three issues were framed :- "(1) Whether opponent has committed default and that h. Is a habitual defaulter ?
(2) Whether the applicant are entitled to the relief prayed for ?
(3) What should the order be."
4. ' The appellants examined Ch. Muhammad Siddiq while the respondent examined himself and two co-tenants Muhammad Amir and Tahir Mahmood.
5. ' The Rent Controller after examining the evidence came to the conclusion that the default of the respondent was not Wilful and he therefore, exercised the discretion in favour of the respondent.
6. The learned Additional District Judge, also dismissed the appeal of the appellant on the ground that the appellant had been accepting the rent in lump sum and therefore, the exercise of the discretion in favour of the respondent was correct.
7. ' The learned counsel for the appellant Mr. Tahir Hussain holding brief for Mr. Mansoor Ahmed Khan has argued that there was no justification for the finding that there was a practice of accepting the rent in lump sum as he contends that the burden of proving the modification of agreement was heavy upon the respondent/tenant and that the said burden had not been sufficiently discharged.
8. The learned counsel has relied upon PLD 1973 Kar. 56 where it was observed that it is a heavy burden on tenant to prove modification of agreement in respect of payment in lump sum.
9. However, the said judgment is distinguishable on the ground that there was no written agreement in the present case before me while in the case reported in PLD 1973 Kar. 56, there was a written agreement between the parties. Mr. Tahir Hussain also relied upon 1973 SCMR 598 where it was observed that the tender of rent in lump sum was not a proper tendering under Ordinance. He also relied upon PLJ 1976 Kar. 96 where it was observed that the payment of rent must be made regularly and subsequent does not wipe out default. Reliance was also placed upon 1972 SCMR 262 where it was observed that the rent must be tendered within time.
10. ' I am however, of the view that since there is a concurrent findings by the two Courts below that the landlord through his rent collector had been accepting rent in an irregular manner sometime for 4 months, sometime for 3 months, sometime for even 6 months and sometime even ad hoc payments for rent were received without any objection by the landlord and those findings were based on the appreciation of the evidence of the rent collector of the appellants and the record of ledger produced by him as well as on the basis of evidence of the opponent and his two witnesses who were the co-tenants of the building and they had all deposed that the rent was being accepted it an irregular interval, therefore, there is no justification to upset that finding in appeal.
11. Particularly, in view of the fact that there is no written agreement between the parties and the applicant who had alleged that the rent was payable in advance had not been able to prove that it was payable in advance as Ch. Muhammad Siddiq the witness for the appellant had not even made such a statement, therefore, it could not be said that there was any definite agreement between the parties in respect of the payment of rent. The witnesses for the appellants had admitted that he had received rent from Muhammad Ishaque a co-tenant in lumpsum on different occasions. Moreover, Ch. Muhammad Siddiq was not even rent collector in 1964-65 and, therefore, he could not depose about the previous practice between the appellants and the respondent.
12. However, Exh. 6 which was a copy of ledger of the appellants showed that between February, 1964 to August, 1966 irregular payments had been accepted by the landlord from the present respondent without protest, therefore it could not be urged by the appellants that there was no basis for the finding arrived at by the two Courts below especially in view of the fact that the respondent and his two co-tenants had made definite statements that the appellants used to collect the rent periodically on his own sweet will. These three witnesses of the respondent could not be shaken on this aspect of the case in their cross-examination, therefore, the whole basis of the appeal that the rent was payable in advance has been found to be untenable and the contentions of the respondents is found justified by the ledger produced by the appellant himself. 1, therefore, do not find any justification for the contention that the rent was either payable in advance or payable every month.
13. ' Moreover, I am in agreement with the two Courts below that the discretion in this case should have been exercised in favour of the respondent, who was a tenant of the premises since 1950, who had paid the entire rent of the premises to the landlord, although, he was irregular in the payment of rent but those irregular payments had been waived by the landlord at least from 1964 till 1966.
14. When the appellant filed the application for ejectment, the rent was in arrears for the months of May to July, 1966, because by that time the rent due for the period up to April, 1966 had already been cleared. Since there was no definite agreement between the parties about the payment of rent proved, therefore, the rent of May 1966 become due on the 1st of June, 1966 and the respondent could not be deemed to have defaulted in the payment of paid rent if he had paid the same by 1st August, 1966 as the West Pakistan Rent Restriction Ordinance, 1959 allowed the tenant to pay the rent within 60 days after the same had become due if there was no definite agreement between the parties. Similarly the rent for June, 1966 could be paid by the 1st of September, 1966 and the rent of July and August could be respectively paid on 1st of October and 1st of November, but the appellant had rushed to the Court on 27th August, 1966 when only the rent of the month of May, 1966 could be said to be in arrears. In view of this position punishing a tenant with ejectment for the A default in payment of one month's rent within the time allowed by law, to him, would have been an unfair use of discretion to grant the ejectment as the Rent Controller has a discretion to grant ejectment under section 13(2) of the Ordinance. I am therefore of the view that the discretion has been properly exercised by the Rent Controller and the Additional District Judge. The accumulation of the rent from 1965 to 1966 was apparently due to the impression created in the mind of the tenant/respondent that the rent would be collected by the landlord at his own sweet will. In any case, the said rent having been paid before the filing of the ejectment application on 27th August, 1966. It was fair to exclude the same from consideration while considering the question of discretion whether the tenant should be ejected for the default in payment of rent of May, June and July, 1966.
15. ' I therefore do not find any justification to interfere with the concurrent orders of the two Courts below and I therefore dismiss this appeal with costs.