1. Appellant landlord filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) in the Court of IInd Senior Civil Judge anti Rent Controller, Karachi for eviction of respondent/tenant from demised premises which is shop No. 3 in building on Plot No. M-11-E/A--296/A of Mohammadi Road, Shersbah Colony, Karachi on the ground of default in the payment of Rent from 15th January 1973 to 14th May, 1974.
2. The premises in question were on rent at the rate of Rs. 25 per month. The tenant resisted the application and denied the allegation. Both parties produced their evidence which was evaluated by the learned Rent Controller, who vide his order dated 19-7-1975 granted ejectment. The tenant went in appeal and the learned Ist Additional District Judge, Karachi allowed his appeal vide judgment cared P-2-1976, whereby the order of eviction has been set aside and it is held that no default is committed by the tenant. The landlord filed this second appeal in which the judgment of the first appellate Court is called in question.
3. The findings of the two Courts below are at variance on the question whether default has been committed or not. In the evidence produced before the trial Court landlord has examined himself and has testified that the tenant failed to pay rent for 15 'months as such he was constrained to file application for eviction. He used to issue receipts each month for the payment of rent to the tenant.
4. On the other hand the tenant has deposed before the trial Court that he has remained tenant of the premises in question for the last 12 or 13 years before the date of his deposition and has been paying rent regularly. He has further stated that he paid rent upto January, 1973 for which he produced some other receipts to show rent paid by him in the past. He took up further plea that an amount of Rs. 2,000 was paid by him to the landlord as an advance rent for eight months for which the landlord promised to execute receipt but he did not. After the expiry of eight months in the month of September, 1973 he attempted again to continue paying rent but the landlord refused to accept rent from him till application for ejectment was filed. Such plea of refit paid in advance as mentioned above has been taken by the tenant in the written ,statement filed by him before the trial Court. Another plea taker? In the written statement is that the landlord used to accept the rent periodically at times after a lapse of four to six months together. The landlord has denied both these allegations stated above. He was confronted with receipts Exh. 2.2/A and 2/B which show that in these receipts he had accepted rent for four months together at a time. Another receipt Exh. 2/C shows that he accepted rent for three months. Exh. 2 relates to the period from 15-9-1972 to 14-1- 1973. Exh. 2/A relates to 15-1-1972 to 14-5-1972. Exh. 2/B relates to 15-5-1972 to 14-9-1972. Lastly Exh.
5. 2/C relates 15-1-1978 to 14-4-1978. Now question that arises for consideration is whether acceptance by the Landlord on four occasions in the past rent in lump sum as evidenced by the receipts mentioned above would suffice to conclude that there was a practice of accepting the rent by the Landlord periodically. This fact is to be considered in the light of admission by both the parties that tenancy is 12 or 13 years old. It is contended by the counsel for the land lord that printed receipts produced by the tenant clearly show that there are terms and conditions printed on the back of receipts which include the condition that rent is payable every month. Payment of rent every month is therefore part of agreement which is binding on the tenant. Acceptance of rent for some months together as shown in the receipts executed by the landlord and produced by the tenant are acts of indulgence by the landlord to condone the occasional delay to share good faith spread over period of tenancy of something like 12 years. The tenant has not produced any more receipt to show that rent regularly used to 'be collected by the landlord in lump sum. On this point it is held in the case of Mohd. Alimullah v. Ziaul Islam (PLD 1973 Kar. 568) and the relevant paragraph is reproduced as under :- "The object of the West Pakistan Urban Rent Restriction Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent. The discharge of this statutory obligation by the tenant is a condition of his protection and he can invoke discretion under section 13 of the Ordinance only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. Thus, for instance a tenant would be entitled to the benefit of discretion under section 13, if he was not able to trace his landlord's where--abouts, despite reasonable efforts or if there was a genuine dispute about the landlord's title. Again, if be has been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can some--times through inadvertence overlook his obligations. Similarly, the case of a tenant who can prove an estoppel or an agreement to pay rent at long intervals is much stronger: However, merely because a tenant hat on a few occasions been allowed to pay rent "at intervals of time", this cannot possibly entitle him to invoke discretion under section 13. After all, if be is allowed to, fall into arrears, this is an indulgence on the landlord's part, ad the recipient of an indulgence cannot claim any right or equity to its continuance. Similarly, as the Rent Restriction Ordinance imposes an obligation on the tenant to pay rent as it falls due be cannot be allowed to escape this obligation by invoking discretion."
6. PLD 1972 Kar. 220). This authority is not applicable to the fact of the present case for the reason that the practice of accepting rent periodically and in lump sum is not established in the instant case. In the reported case there was evidence on the record that the landlord lived out of the station and whenever he visited Sukkur on his demand the rent was paid to him by the tenant. In the instant case it is on tire record that the landlord lived opposite the demised premises.
7. For the facts mentioned above the judgment of the Appellate Court is set aside and order of eviction passed by the learned Rent Controller is hereby restored. 1n the result appeal is allowed with no order as to costs. The respondent is directed to handover vacant possession of the demised premises within two months from the date of this judgment.