1. DORAB PATEL, ACTG. C J:-The respondents are the legal heirs of, one Mohammad Rafi, who bad, in the events that happened, leased a shop to the petitioner in Karachi at Rs. 12 per month. In January, 1970, Mohammad, Rafi filed an eviction application against the petitioner on the ground that he had committed default in the payment of rent since July, 1963. The petitioner denied in his written statement the allegation that he was a defaulter in the payment of rent and submitted that the practice between him and Mohammad Rafi was that Mohammad Rafi's Munshi would come to collect rent and that he had paid the Munshi rent until (July, 1965) but that as no one had come to collect rent thereafter, he had not paid rent. And, therefore, he submitted that he was not in willful default in the payment of rent.
2. It would appear from the Paper Book that the petitioner examined himself in support of his claim, whilst Mohammad Rafi's son (the second respondent) gave evidence on his father's behalf. The petitioner referred in his evidence to the alleged practice of collection of rent at long intervals by Mohammad Rafi's Munshi and produced rent receipts which showed that rent had been paid by him at intervals of a little over two years between 1958 and 1962 and that between 1962 and 1965 rent had been paid at intervals of about one year. The second respondent, on the other hand, admitted in his evidence that his father's Munshi had collected rent for sometime as alleged by the petitioner, but that the Munshi was not a Rent Collector and after they had terminated the Munshi's appointment, the petitioner had been informed of the same. The second respondent further said "I have demanded the rent from the opponent." He was, therefore, cross-examined on the allegation that there was a practice to pay rent at long intervals (vide the rent receipts) and that witness said in his reply "the opponent never paid me rent regularly month to month but paid me after intervals of sometime six months and some 12 months but never a gap of seven years."
3. On this evidence, the Rent Controller held that the petitioner was in default sin the payment of rent, but as the rent receipts showed that rent had been collected at varying intervals, the Rent Controller. (who was not given any assistance on the law declared by the superior Courts on the meaning of the term `willful' default held that the petitioner was not in willful default in the payment of rent, therefore, he dismissed Mohammad Rafi's eviction application.
4. Mohammad Rafi filed an appeal in the District Court and by a very superficial judgment dated 31- 3-1976 an Additional District Judge, Karachi, dismissed this appeal. Therefore, Mohammad Rafi filed a second appeal in the Sind High Court on 15-11-1980 largely on the basis of this Court's judgment in Dr. Syed Warts Ali Tirmizi v. Mst. Liaqat Begum (1). Hence this petition for leave.
5. We are aware of the limited jurisdiction of the High Court in a second appeal, under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the said Ordinance). However, the view of the learned Judge was that the judgments of the lower Court were contrary to the law declared by this Court in Tirmizi's case, and if this finding be correct, it is obvious that the High Court had no choice but to set aside the concurrent findings of the lower Courts, because they were contrary to the law declared by this Court and with this observation, we turn to Mr. Noori's ,submissions.
6. Mr. Noori stated that contrary to the averments in the eviction application rent had been paid up to June, 1965. That is correct, but it does not help the petitioner's case; because he was Admittedly in default in this payment of rent at the date of the eviction application for a period of more than 4 -- years and in our humble opinion, such conduct on the part of a tenant is scandalous and such a tenant would not be entitled to invoke the Rent Controller's discretion under subsection (3) of section 13 of the said Ordi--nance. That is obvious, therefore, learned counsel advanced an astonishing submission which had the merit only or ingenuity. According to learned counsel, the said Ordinance penalized only willful default in the payment of rent, but there was an agreement between Mohammad Rafi and the petitioner that Mohammad Rafi and/or his Munshi would come and collect the rent and as neither Mohammad Rafi nor any one else on his behalf came to collect the rent from and after July, 1965, the petitioner's failure to pay rent from July, 1965 to January, 1970 did not amount to default in the payment of rent at all. And, as learned counsel submitted that this extraordinary submission was supported by the view taken by one of us (Dorab Patel, J.) in Mohammad Alimullah v. Ziaul Islam (PLD 1973 Kar. 56s) we may point out that the view taken in the case cited was that a tenant was under. a statutory obligation to pay rent and failure to pay rent automatically made him liable to eviction unless he could show that there was an agreement between him and the landlord to pay rent at long intervals. But, it was emphasized in the case cited that the burden of proving such an agreement was heavily on the tenant arid it was clarified that this burden could slot possibly be discharged by the mere fact that a landlord had in fact accepted rent at long intervals.
7. We are unable to see how Alimullah's case lends any support whatever to the petitioner's claim, because the second respondent said in his evidence that rent had been demanded from the petitioner and that rent had never been paid after "a gap of seven years." It is true that what the Rent Controller described is a gap was for 41/2years. Be that as it may, the burden of the plea being on the petitioner, his bare word was not sufficient to prove the alleged agreement, therefore, Mr.Noon relied on the rent receipts, because they showed that payment had been made at long intervals. We, therefore, invited Mr. Noori to refer us to even one receipt which could show that rent had been paid after an interval of more than four years. He was not able to refer us to any such receipt, and, on the other hand, it is clear from the Rent Controller's order that between 1958 and 1362 rent had been paid at intervals of a little more than two years and thereafter it had been paid at interval of about one year. Therefore, in the first place, the rent receipts do not spell out any agreement or practice which could have justified the petitioner's failure to pay rent for more than four years. And, on the other hand, as explained even in Alimullah's case which was re-affirmed in Tirmizi's case the mere fact that rent had been paid at long intervals does not mean that this was with the consent of the landlord. And, in the instant case, beyond the oral association of the petitioner, there is not evidence to show that Rais Ahmad had agreed to accept rent at long intervals. Therefore, nothing turns on the fact that the owner of the very humble premises in dispute had on some Occasion--- accepted rent after two years and on some occasions after one year.
8. And in the circumstances, it is clear that the learned Judge rightly held that the instant case fell under the rule laid down by this Court in Tirmizi's case therefore, there is no merit whatever in this petition.
9. Mr. Noori then statedthat the question of eviction for default in the payment of rent was within the discretion of the Rent Controller and as the two Courts below had exercised their discretion in the petitioner's favour, the High Court was not justified in a second appeal in interfering with the concurrent exercise of discretion in the petitioner's favour by the lower Courts. We are not impressed by this plea, because the discretion exercised by the lower Courts in the petitioners favour was exercised perversely and, on the other hand, we agree with the view of the learned Judge that the instant case falls directly under the rule laid down by this Court in Tirmizi's case and in Mohammad Alam v. Noor Ahmad(1973 SCMR 606 ) therefore, the learned Judge rightly interfered with the perverse exercise of' discretion , by the lower Courts in the petitioner's favour.
10. Mr. Noori sought to challenge the second respondent's evidence on the ground that his father had illegally claimed rent for the period between July, 1963 and June, 1965. It is true that the petitioner has proved the pay--ment of rent for this period but this by itself would be no ground for rejecting the second respondent's evidence that there was not even any practice, much less any agreement between the parties to accept rent at intervals of more than four years and this is for the obvious reason that there is not a shred of evidence to show that Rais Ahmad had ever accepted rent from the petitioner after an interval of more than four years.
11. Learned counsel also sought to challenge the second respondent's evidence on the ground that he was not the attorney of his father. The objection is of a technical nature and we are not impressed by it.
12. The judgment under appeal is in accordance with the law repeatedly declared by this Court. The petition is absolutely devoid of merit and is dismissed. We, however, give the petitioner one month's time to vacate the demised premises.