This appeal is directed against the order dated 14th March, 1974, passed by the learned Ist Additional District Judge, Karachi, allowing the Ist Appeal of the respondents by setting aside the order dated 31st March, 1973, passed by the learned Civil Judge, IInd Class and Rent Controller, Karachi by which the said Rent Controller granted appellant's ejectment application and ordered the respondents to put appellants in possession of the shop premises in their occupation.
2. The appellant is the landlord of building bearing No.8-6/10. Shahrah-e-Liaqat, Karachi, and had filed ejectment application against respondents, who are the tenants of shop premises bearing number 2-A of the said building in payment of rent from January, 1971 to December, 1971. The respondents admitted relationship of landlord and tenant as well as the period for which rent was in arrears but stated that on account of long standing well-established practice, the appellant's attorney used to visit shop of the respondents at his convenience and collect the rent from the respondents, sometimes the rent was collected for the period of one year, as the other occasions for a period exceeding one year and sometimes for the period of less than one year. The payment of rent was always on demand and at the convenience of the appellant or his attorney and as such there was no wilful default. In support of this contention the respondents produced through appellant's witness counterfoil of rent receipts Exhs. 8 to 13 and urged that there was no wilful default on the part of the respondents as such no ejectment orders could be passed against them.
3. On the basis of the above pleadings of the parties, following issue` were framed by the learned Rent Controller.
(1) Whether the opponent has committed default in payment of rent ?
(2) What was the practice between the parties as regards to the recovers of rent ?
(3) What should order be ?
4. The appellant examined one witness Mr. Inayat Hussain before Rent Controller. While the respondents examined their Manager. Haji Qasim and further respondents through the witness of the appellant produced counter--foils of rent receipts showing lump sum payment of the rent from time to time in support of their contention that there was long established practice between the parties to accept rent after long interval without any objection, and as such there was no wilful default. The learned Rent Controller decided Issue No. 1 in the affirmative and Issue No. 2 in the negative and allowed the application.
5. While discussing the Issue No. 1 the learned Rent Controller in view of the written statement of the respondents came to the conclusion that respondents did allow the arrears of rent to accumulate beyond the period of 60 days and as such respondents were defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
6. On Issue No. 2, the learned Rent Controller came to the conclusion that the practice between the parties as alleged to be envisaged by Exhs. 8 to 13 cannot be allowed to alter rights, or supersede the legal obligation or duties of respondents in this connection and does not afford tenable justification for accumulation of rents. The learned Rent Controller further in his order stated that there in undisputed proposition of law that it is the debtor who is to find the creditor and as such respondents having failed to tender rent when it became due every month they became wilful defaulters. The learned Rent Controller further in his order stated that West Pakistan Urban Rent Restriction Ordinance, 1959 pious itself lays down the method of payment or tender of rent and in absence of due compliance therewith, a mere willingness to payment reduces itself to a wish howsoever pious it may be. . The learned Rent Controller further referred to Exh. 6, the specimen of the rent receipt. Produced by the appellant's witness on the reverse of which the terms and conditions of the tenancy are mentioned, in which it has been expressly stated that the rent of the past month shall be payable in other succeeding month and these terms and conditions of tenancy constitute agreement of tenancy between parties and as such the plea of practice to the contrary has no legal force and came to the conclusion that the respondents have failed to tender rent in respect of the period in question as and when they fell due and , relying on the case reported in PLD 1973 Kar. 56 came to the conclusion that neither by operation of law nor by condition of tenancy, and alleged practice can be allowed to take effect. The learned Rent Controller further stated that the respondents have also failed to establish the alleged practice by mere production of Exhs. 8 to 13 and allowed the appellant's application and directed the respondents to hand over vacant possession of the premises in their occupation to the appellant within the ,period of 30 days from the date of his order with no order as to costs. The respondents above-named being aggrieved by the order dated 31-3-1973, filed Ist Rent Appeal No. 127/1973 before the learned Ist Additional District Judge, Karachi, who allowed the said appeal by his order dated 14-3-1974 and set aside the order of ejectment dated 31-3-1974 passed by the learned Rent Controller, Karachi.
7. The learned Ist Additional District Judge, Karachi, in his judgment stated that the main question for determination in the said appeal was whether long established practice between the parties to accept rent after long interval without any objection gave a rise to fresh agreement. He further stated that in case the answer is found to affirmative the respondents shall not deemed to be a defaulter within the meaning of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959.
The learned Rent Controller however gave answer to the said question in negative. The learned 1st Additional District Judge, Karachi, while discussing the evidence produced by the parties in respect of the long established practice stated that appellant's only witness in his statement has admitted that he used to go and collect rent on behalf of appellant in respect of disputed premises and the general practice was that he would go to all the tenants. The learned Ist Additional District Judge, Karachi further observed that the said witness of the appellant in his cross-examination stated that he went to collect rent from the respondents he was asked to collect the same from the head office of the respondents and when he went to the head office of the respondents he was asked to come after three months to which be had no objection but when he went after three months be was put off from time to time. However, this witness in his statement stated that whenever be went to collect rent he accepted it whatever and whenever paid by the respondents.
8. The learned Ist Additional District Judge, Karachi however, observed that there was no tenancy agreement is writing between the parties and Exh. 6 produced by the appellant's witness though admitted in evidence without any objection by the respondents cannot be considered as terms and conditions of tenancy or agreement between the parties as these terms and conditions did not exist on the counterfoils of nearly 800 receipts produced before the Rent Controller and as such came to the conclusion that there was no tenancy agreement is writing between the parties regarding payment of past month rent before 5th of every succeeding month as mentioned in Exh.
6 specimen of rent receipt produced by the appellant's witness.
9. The learned Ist Additional District Judge. Karachi, has then referred to Exhs. 8 to 13 produced through the witness of the appellant by the respondents in support of their contentions that the rent was collected in lump sum periodically at the convenience of the appellant or his Rent Collector The learned 1st Additional District Judge, Karachi, observed that Exh.8 covers payment of rent for 7 months, Exh. 9 covers payment of rent for 6 months, Exh. 11 covers payment of rent for 3 months, Exh. 12 covers payment of rent for 6 month's, Exh. 13 covers payment of rent for 10 months, and Exh. 14 covers payment of rent for 10 months. The learned Ist Additional District Judge, Karachi, further observed that this practice of collecting accumulated rent was not only between the appellant and respondents but appellant and his other tenants which was established from Exhs.
15, 16, 17 and 19 being the counterfoils of the rent receipts produced through the witness of the appellant relating to the other tenants. The learned Ist Additional District Judge, Karachi, taking into consideration above--mentioned counterfoils of the rent receipts and the admission of the appellants, Rent Collector in his statement that he used to accept rent from the tenants periodically without any objection came to conclusion that the respondents have established the practice to collect rent periodically by the appellant through Rent Collector and it was not necessary for the respondents to examine the other tenants of the building in support of their contentions. In view of this the learned Ist Additional District Judge, Karachi, came to the conclusion that the learned Rent Controller has erred in not considering the effect of the rent receipts issued by the appellant Exhs. 8 to 13 and by ignoring admission in evidence of the Rent Collector of the appellant in this connection. The learned Ist Additional District Judge, Karachi, further observed that the respondents who are the tenants of the disputed premises for the last 30 years would not dare to commit default by not paying meagre amount of Rs. 35 per month in respect of commercial premises situated in Commercial area like Shahrah-e-Liaquat. The learned Ist Addl. District, Judge, Karachi further observed that a conduct of the appellant all long made respondents believe that the rent will be collected in lumpsum by the appellant and as such they were not strictly obliged to remit monthly rent by money orders or by depositing the same in Court of Rent Controller as observed by the learned Rent Controller. The learned Ist Additional District Judge, Karachi, further observed that even condition No. 3 mentioned in Exh. 6 does not appear to have been acted upon inasmuch as the appellant has been accepting the rent in lump sum without any protest and without charging any extra charges @. 6 % per month as stipulated in the said condition. This condition even if it existed was practically and actually modified to suit the situation prevailing between the parties. In view of these observations and conclusions, the learned Ist Additional District Judge, Karachi, stated that authority reported in PLD 1973 Kar. 56 would not be attracted in favour of the appellant. The learned Ist Additional District Judge, Karachi, further mentioned that authorities cited by the appellant namely 1972 SCMR 262 and 1971 SCMR 598 being based on different facts cannot be applied to the present case as these authorities were distinguishable on facts though there can be dispute as to the legal position.
10. The learned Ist Additional District Judge, Karachi relied upon PLD 1972 Kar. 220 and then observation made in 1972 SCMR 384, and came to the conclusion that the respondents have established practise alleged in their written statement and held that respondents are not guilty of wilful default and as such the order of the learned Rent Controller cannot be sustained and consequently allowed appeal and set aside the order dated 31-3-1973 of the learned Rent Controller, Karachi, and dismissed appellant's ejectment application with no orders as to costs.
11. The learned Advocate for the appellant has urged before me that admittedly respondents have neither paid the rent for the period from January, 1971 to December 1971 nor tendered the same. He further urged that Exh. 6 on record, specimen of the terms and conditions of the tenancy which are printed on the back of all the rent receipts issued to respondents, clearly show that the rent of the past month was to be paid on or before the 5th of every succeeding month. The production of this Exh. 6 was neither challenged nor the respondents denied existence of terms and conditions mentioned as Exh. 6 on the reverse of the rent receipts issued by the appellant and as such Exh. 6 was rightly considered by the learned Rent Controller as an agreement of the tenancy on which the disputed premises in question was rented out to the respondents. He further urged that in view of this written terms and conditions of the tenancy between the parties, the learned Ist Additional District Judge, Karachi, has erred in coming to conclusion that these terms and conditions did not form agreement between the parties as the same were not printed in the counterfoils of the receipts produced in Court and further he has erred in holding that even if the said terms and conditions existed between the parties the same were varied by long-established practice inasmuch as that the appellant not only collected and/or accepted the arrears of rent periodically but did not charge expenses for delayed payment as envisaged by condition No. 3 of Exh.
6. The learned Advocate for the appellant further urged that the learned Ist Additional District Judge, Karachi, has wrongly held that the authority reported in PLD 1973 Kar. 56, 1972 SCMR 262 and 1971 SCMR 598, are not apple--cable to the present case and has relied upon authority reported in PLD 1972 Kar. 220 which in fact has been disapproves( by the Supreme Court in 1980 SCMR 601. The learned Advocate for the appellant further relied upon case reported in 1980 SCMR 506 in which Supreme Court has held as follows :- "Moreover the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Niaz All v. Shabbir Ahmed Khan that `a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord,/respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent'.
Learned Advocate for the appellant further relied upon case reported in 1980 CLC 912, which according to him also fully supports appellant's case.
12. On the other hand, the learned Advocate for the respondents urged that the respondents having been made to believe that appellant or his Rent Collector would come to collect rent as and when it suited them in view of the long-established practice between the parties and in the absence of any categorical statement on behalf of the appellant that demand for payment of accumulated rent was made but the same was not paid, the respondents cannot be considered as wilful defaulters within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Advocate for the respondents in support of his contention relied on cases reported in PLD 1976 Lah. 1052 and PLD 1978 Lah. 862 and submitted that the learned Rent Controller ought to have exercised his discretion under section 1.3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, in favour of the respondents even if he came to the conclusion that there was default is payment of rent. Learned Advocate for the respondents submitted that the authority reported in 1980 SCMR 506 and 1980 SCMR 601 were distinguishable on facts of the present case and as such does not support the contentions raised by the appellant. In this connection he stated that in case, reported in 1980 SCMR 601, the tenant even while making payment at periodical intervals was found to be in arrears which is not the case as far as the respondents are concerned as far as the authority reported in 1980 SCMR 506, is concerned, the learned Advocate stated that there was a written agreement of tenancy between the parties which is not the case in the present matter.
13. I have carefully considered arguments advance by both the learned Advocates of the parties and have gone through the orders of both the learned lower Courts. There is no dispute either about the quantam of the rent or in respect of the period of the rent for which default is alleged by the appellant. Only point which requires consideration which has been urged by the respondents that on account of long-established practice, respondents were made to believe that the appellant would collect or send his representative to collect the rent as and when it suited to the appellant and as such in the absence of written tenancy agreement, respondents cannot he held to be defaulters within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Whereas on the other hand the learned Advocate for the appellant has urged that Exh. 6 is specimen of the rent receipt which gives the terms and conditions of the tenancy should have been held as the terms and conditions binding between the parties and mere acceptance of accumulated rent periodically did not alter the said terms and conditions in the alternative even if Exh. 6 is held to be not agreement of the tenancy between the parties then to under the provisions of section 13 (2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959, respondents were obliged to pay rent or tender the same within 60 days when the said rent became due and as such admittedly the respondents are defaulters within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
14. In my opinion, as respondents were bound to pay or tender rent either in accordance with condition No. 3 of Exh. 6 or within the time laid down by section 13 (2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959, they have committed default in respect of the period in question as admittedly they neither paid the rent nor tender the same within either of those periods and I am therefore inclined to accept the reasoning of the learned Rent Controller and agree with his findings as given in his order dated 31-3-1973 for the following reasons.
15. The periodical acceptance of accumulated rent without any objection by the appellant, by itself did not amount to alteration of terms and condition of written tenancy agreement if any or the provisions of law for payment and tender of rent by the tenants as laid down by West Pakistan Urban Rent Restriction Ordinance, 1359. The parties cannot contract themselves out of provisions of law, nor can any party plead a practice contrary t law. Tenant required by law to pay rent by specified time cannot alleged contract or practice to get out of such obligation. Mere fact that the landlord accepted delayed payment of rent in past cannot be said to have given rise to a practice for tenant to make delayed payments in derogation of provision of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. In this view of mine, I am fully supported by the authority laid down by the Supreme Court reported in 1980 SCMR 506 as well as 1980 SCMR 601. The learned IA Additional District Judge. Karachi has mainly relied on the decision reported in PLD 1972 Kar. 220, which has been disapproved by the Supreme Court vile case reported in 1980 SCMR 601.
The law laid down by these two authorities of the Supreme Court is binding on me and I am also in respectful agreement with the reasoning given in the said authorities. In view of my above finding I set aside order dated 14th March, 1974 of the learned Ist Additional District Judge, Karachi and restore order dated 31-3-1973 of the Civil Judge 2nd Class and Rent Controller, Karachi by which appellant's application for ejectment was allowed with no order as to costs. The respondents are given 60 days from today to vocate the premises and put the appellant in possession of the same.