' This appeal was originally filed by one Mr. Mohammad Rafi wh died on 28th January 1977, and present appellants were brought on record as legal representatives of the deceased on 18th September 1977.
2. This second Appeal has been filed by the appellants who ar, pow the landlords of the building bearing No, 5-W.
0. 6, Outram Roa Karachi against the order dated 20th October 1974 of the learned XIth Civil Judge, IInd Class and Rent Controller, Karachi and order dated 31st March 1976 of the 1st Additional District Judge, Karachi by which appellants' ejectment application against the respondent who is the tenant of flat No, 5 of the said building at the rate of Rs, 12 per month on the sole ground of default was rejected by both the lower Courts who came to the conclusion that the respondent was not wilful defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for the reasons given by both the said lower Courts in their respective orders. The appellants' predecessor in title had filed Ejectment Application No, 308/70 in the Court of IIIrd Civil Judge 'Ind Class and Rent Controller, Karachi on 29th January, 1970 on the basis of default in payment of rents by the respondents from July, 1963 to December, 1969. The respondent in his written statement admitted the tenancy and the rate of rent, but denied that he has committed default and stated that it was a long-established practice between the parties that Munshi of the appellants used to come and collect rent after intervals of years together and that he paid rents up to February, 1965 and thereafter nobody came to collect rents from him and as such he could not be considered as defaulter in payment of rents due to this long-established practice between the parties within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. On the basis of the above pleadings of the parties the learned Rent Controller framed the following issues :---
(i) Whether the opponent has committed default in payment of rents as alleged in the application ?
(ii) What should the order be ?
3. The original appellant examined his son Rais Ahmad who in his statement stated that the respondent had neither paid nor tendered rent from July, 1963. On the other hand the respondent examined himself and stated that the respondent was a tenant of the original appellant since 1954 at the rate of Rs, 12 per month and according to the practice the Munshi of the said appellant used to come to collect rents after about several months and used to issue, the rent receipts. The respondent in his evidence in support of his contention produced rent receipts Exhs. 17 to 26 and further stated that he had paid rent till June 1965 and in support of this he produced a rent receipt Exh. 7 through appellants witness. He further stated that nobody on behalf of the original appellants came to, collect rents from him thereafter.
From the above evidence of the parties it is clear that the respondent neither paid rent nor tendered the same from 1st July, 1965 till filing o the ejectment application in question and as such there is a clear default in payment of rents from 1st July, 1965 till filing of the ejectment application in question by the original appellant. However, the respondent by producing rent receipts Exhs. 17 to 26 tried to establish a long-establishe practice between the parties to show that rent was being paid in lump su as and when demanded. The rent receipt Exh. 23 shows that rent w accepted from the respondent from November, 1956 to August 1958, receipt Exh. 24 shows that the rent was accepted from May 1962 to June 1963, receipt Exh. 25 shows that rent was accepted from May 1961 to April 1962, receipt Exh. 26 shows that rent was accepted from February, 1960 to April 1961 and receipt Exh. 7 shows that rent was accepted from July 1963 to June 1965. These receipts no doubt show that the original appellant used to collect rents through his rent collector from the respondent at long intervals.
4. Taking into consideration the above evidence led by the parties, the learned Rent Controller came to the conclusion that the default in payment of rent from July 1965 to December 1969. Was not wilful but the respondent was waiting for the appellants' man to collect the rents, the rent itself being nominal one of Rs, 12 per month and as such in the opinion of the learned Rent Controller, it was a fit case in which discretion could be exercised in favour of the respondent and accordingly the learned Rent Controller exercised his discretion in favour of the respondent and refused to grant ejectment application by his order dated 28th October 1974. Against this order Mr. Mohammad Rafi the predecessor in title of the present appellants filed First Appeal No, 621/1974.
The learned First Additional District Judge, Karachi after hearing both the parties and after going through the records and proceedings of the learned Rent Controller, endorsed the findings arrived at by the learned Rent Controller and dismissed the appeal with costs vide his order dated 31st March, 1976 for reasons mentioned in the said order.
5. Against the above two concurrent findings and judgment of both the lower Courts the appellants' predecessor in title Mr. Mohammad Rafi filed this appeal and pending disposal of this appeal he died and as such the present appellants were brought on record as legal representatives of Mr. Mohammad Rafi.
6. The learned Advocate for the appellants submitted that mere acceptance of accumulated rent periodically did not alter the terms and conditions of tenancy between the parties for payment of rent in advance on or before the 5th day of every month or in the alternative, he submitted that even if appellants failed to establish the terms and conditions of tenancy for payment of rent by the 5th of every month in advance in the absence of the written tenancy agreement then too under the provisions of section 13(2) (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 respondent was obliged to pay rent or tender the same within the 60 days when the said rent became due as the parties cannot contract out of provisions of law nor can any party plead a practice contrary to law. He further submitted that tenant required by law to pay rent by specified time cannot allege contract or practice to contrary t get out of said obligation. He further submitted that even Exhs. 7, 22, 23, 25 and 26 rent receipts relied upon by respondent clearly show that respondent failed to clear all arrears due even when he made payments periodically and as such even on the basis of these receipts, the respondent is defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Advocate for the appellants further submitted that the principle that the debtor has to find the creditor has been completely overlooked by both the learned lower Courts. In support of his contentions the learned Advocate for the appellants relied on cases reported in 1971 SCMR 598, PLD 1976 Lah. 567 and PLD 1973 Kar. 56 as well as on the recent two judgments of the Supreme Court reported in 1980 SCMR 506 and 601. The learned Advocate for the appellants further urged that findings on question of default is one of mixed question of law and fact and as such concurrent findings of Courts below on such questions could be displaced by the High Court in Second Appeal For this purpose he relied upon the case reported in 1973 SCMR 606.
7. On the other hand the learned Advocate for the respondent stated that witness produced on behalf of the original appellant before the learned Rent Controller was not authorised to depose in this connection he relied on Order III, rule 12(3), C. P. C. He further stated that original appellant though in Karachi did not come forward to give his own evidence and further no details or demand of rent were given in the evidence produced on behalf of the original appellant. He further urged that rent receipts Exhs. 7, 9, 12 and 17 to 26 produced by the respondent in their evidence before the learned Kent Controller, proved long-established practice between the parties that the respondent was to pay rent when representative of the landlord came for its collection only. In support of his contention the learned Advocate for the respondent relied on cases reported in PLD 1978 Lah. 862 and PLD 1979 Lah. 444 and further submitted that both the lower Courts have exercised their discretion judicially and after taking into consideration the evidence led by both the parties and as such the same ought not to be interfered with by this Court and for this purpose he relied upon the principle laid down in 1980 SC MR 834.
8. 1 have carefully considered arguments advanced by both the learned Advocates as well as the authorities cited by them in support of their contentions. I have also gone through the evidence and pleadings of the parties and have carefully read the impugned orders of both the learned lower Courts. There is no dispute either about the quantum of the rent or in respect of the period of rent for which default was alleged by the original appellant, in view of Exh. 7 produced by the respondent in support of his contention that he had paid rents upto June 1965. Only point which requires consideration is whether both the learned lower Courts have taken into consideration all the evidence on record properly and then came to conclusion that there was no default and/or have judicially exercised their discretion under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in refusing to allow ejectment of the respondent on the basis of the evidence brought on record by both the parties. In this connection the learned Advocate for the appellants submitted that rent receipts Exhs. 7, 22, 23, 25 and 26 on which the respondent relied show that respondent failed to clear all arrears due even when he made payment periodically and as such the respondent is clearly a defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 even if his contention regarding established practice for payment of lent periodically is accepted between the parties and as such the discretion exercised by both the learned lower Courts in favour of the respondent is not judicial but arbitrary and consequently this Court on the basis of the law laid down by the Honourable Supreme Court in case reported 1973 SCMR 606 can interfere with the concurrent findings of both the lower Courts, especially as both the lower Courts have overlooked the important fact that rent receipts Exhs. 7, 22, 23, 25 and 26 produced by respondent clearly show that respondent did not clear all the arrears which were due at the time when he made periodical payment as per alleged practice. In this instant case both the learned lower Courts accepted the plea of defence that practice had grown up for payment of rents periodically between the parties on the basis of solitary receipt produced by the tenant and as such both the lower Courts held that the tenant was not wilful defaulter and dismissed landlord's application for ejectment by exercising discretion vested in them under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. However, High Court reversed concurrent findings of the learned Rent Controller and the 1st Additional District Judge, Karachi by holding that one solitary instance of payment of rent for three months together in 32 years of tenancy did not constitute a practice which will vary statutory time fixed for payment of rent between the parties. This decision of the High Court was challenged before the Supreme Court in this case, reported in 1973 SCMR 606. The Honourable Supreme Court held that question of default within purview of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was a mixed question of law and fact and held that High Court could, therefore, displace the concurrent findings of the lower Courts on this point. In the present case the concurrent finding of both the lower Courts is based on assumption that respondent paid all the accumulated rents to the original appellant as and when it was demanded which is not the true position a C is evident from Exhs. 7, 22, 23, 25 and 26. Rent Receipt Exh. 7 shows that there was a balance of Rs, 96 due and payable after payment shown in this receipt, and similarly rent reciept Exh. 22 shows that there was a balance of Rs, 192 still due and payable, Exh 23 shows that there was a balance of Rs, 204, still due and payable, Exh. 25 shows that there was a balance of Rs 48, still due and payable and Exh. 26 show that there was balance of Rs, 12, still due and payable by respondent. It seems that the learned lower Courts have overlooked these very important facts in arriving at their decision and exercising their discretion in favour of the respondent. The facts of the case reported in 1980 SCMR 601 regarding receipts for lump sum payment is more or less similar to the present case as in the rent receipts produced in the said case before the learned Rent Controller clearly showed that tenant was mostly in arrears of rents even when he made periodical payments as such I cannot accept findings of both the lower Court in the face of the above-mentioned rent receipts that the respondent paid the rents in arrears as and when demanded and as such he was not defaulter and/or respondent was entitled to benefit of discretion under S. 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In view of this conclusion arrived at by me I have no hesitation in accepting the contentions of learned Advocate of the appellant that both the learned lower Courts have failed to exercise their discretion judicially and t heir concurrent findings is based on erroneous reading of the law and perverse appreciation of the evidence and specially relating to rent receipts Exhs. 7, 22, 23, 25 and 26.
9. Therefore I set aside concurrent findings of both the learned lower Courts as well as discretion exercised by them in favour of the respondent, as it is clear from Exhs. 7, 22, 23, 25 and 26 produced by the respondent while making payment in respect of the accumulated rents mentioned in these receipts, respondent failed to clear all the arrears which were then due and hold that respondent is a wilful defaulter within the meaning of section 13 of the West Pakistan Urben Rent Restriction Ordinance.
1959.
10. In view of the above findings of mine, 1 set aside the orders of both the learned lower Courts and grant appellant's appeal for ejectment on the ground of default and direct the respondent to put the appellant in possession of the premises in occupation within 60 days from this order and allow this appeal with no order as to costs.