The facts leading up to this second appeal briefly stated are that the respondent landlord filed Rent Application No. 814/72 against the appellant-- tenant for eviction from the Premises No. G-4, 472 Commercial Area Bahadur--abad under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on ground of subletting and default in payment of rent, in the Court of learned Rent Controller, Karachi on 8-4-72. The learned Rent Controller by his order, dated 30-8-1974 dismissed the application on both the grounds. Consequently the respondent-landlord filed 1st Appeal No. 82/75 in the Court of learned Additional District Judge, Karachi, challenging the order of the learned Rent Controller on both the grounds. The learned 1st Appellate Court since the appeal was filed admittedly beyond a period of limitation condoned the period of limitation of six days and allowed the appeal only on the ground of default in payment of rent and directed the eviction of the appellant-tenant from the premises in question. The appellant --tenant consequently filed the Second Appeal No. 152/78 challenging the above--mentioned finding of the learned 1st Appellate Court and the one of the condonation of delay in filing the 1st appeal.
2. On the admitted facts of .The case the default in payment of rent is for a period of three months of January to March, 1972. The appellant-- tenant has contended that the respondent-landlord used to come and collect the rent from him at his convenience sometimes after one month and some--times after two to three months. The respondent-landlord did not come to collect the rent from him for the months of January to March, 1972 and that be came to him in April, 1972, and demanded enhanced rent of Rs.70 per month when the agreed rent was Rs.50 per month. The appellant-tenant tendered the rent for the defaulted three months at the agreed rent of Rs.50 per month but the respondent-landlord refused to accept the same and threatened to file an application for ejectment in case the enhanced rent of Rs.70 per month was not paid. The persuasions in that respect on the part of the appellant-tenant produced no result. The appellant- tenant, therefore, directed his brother Munawar Hussain who tendered rent for the defaulted three months at the agreed rent of Rs.50 by' money order, which also the respondent-landlord refused to accept and in the meanwhile filed an applica--tion for ejectment.
3. It is also contended that the allegation of subletting was without basis and that the case had been filed only in order to get the enhanced rent at the rate of Rs.70 per month as on the previous occasion also the respondent-- landlord in the year 1963 in the same manner had managed to get enhanced rent from Rs.40 to Rs.50 per month by filing ejectment application and subsequently compromising the same.
4. The trial Court framed two issues on grounds of subletting and default in payment of rent and the two Courts below decided the same in the manner stated above.
5. In this second appeal the pleas raised are that neither there was sub--letting as alleged nor wilful default in payment of rent in view of the alleged practice between the parties to the effect that the respondent-landlord was collecting rent periodically at his own convenience and had accepted the same in the same manner in the past without any objection and that the Rent Controller had exercised his discretion judicially by not evicting the appellant --tenant under section 13 of the West Pakistan Urban Rent Restriction Ordi--nance, 1959. The further pleas raised is to the effect that the period of limitation could neither be legally condoned by the 1st Appellate Court nor it can be condoned by this Court in the circumstances of this case and that this appeal would succeed on this ground as well.
6. I have carefully perused the evidence on the record and have also heard the learned counsels for the parties, Mr. Masoom Hussain Rizvi for the appellant-tenant and Mr. Azharali Siddiqi for the respondent-landlord at sufficient length.
7. As regards the plea of subletting the learned counsels for the parties have failed seriously to contest the same. According to the learned Rent Controller there is no evidence in support of this plea and that in absence of the appellant-tenant his brother Munawar Hussain sits and works on the shop which fact alone provides no proof in support of the plea of subletting. The learned 1st Appellate Court has come to the conclusion that the respon--dent-landlord had failed to prove absolute transfer of tenancy rights by the appellant-tenant in favour of any other person and that the appellant-tenant's brother Munawar Hussain had been working on the shop and this would not amount to subletting. What I find that the respondent-landlord has even failed to depose that the shop was sublet by the appellant-tenant to any other person. In his cross-examination he deposes that he dues not know the name of the persons to whom the appellant-tenant and sublet the shop.
The plea of subletting has been denied by the appellant-tenant and his two witnesses Munawar Hussain brother of the appellant-tenant and Orangzeb who is the tenant of the respondent- landlord and has no reason to depose against the interests of his own landlord, in their evidence.
On the basis of the evidence on the record, therefore, the plea of subletting has no substance and the concurrent finding of the two Courts below in that respect does not call for] interference.
8. With regard to the second plea, the default in payment of rent for a period of three months from January to March, 1972, is admitted, but the contention raised is that in view of the prevailing practice between the parties it was collected by the respondent-landlord periodically at his own convenience sometimes after one month and sometimes after two or three months and that on the one hand the default was not wilful, and on the other hand the respondent-landlord adopted the device of filing this case taking advantage of the situation to get enhanced rent as he had done on the earlier occasion.
It is admitted that on the earlier occasion in the year 1964 the respondent landlord had filed a similar application for ejectment and had subsequently compromised the same by getting enhanced rent from Rs.40 to Rs.50 per month. The learned Rent Controller has also come to the conclusion that the appellant-tenant had remitted rent for the period of three months January to March, 1972 on 11-4-1972 by money order without possibly having knowledge of the rent application for ejectment having been filed. What is further clear in the evidence on the record that the appellant is the tenant of the respondent-landlord in the premises in question which is a barbar's shop for a long period, according to the appellant-tenant for 16-17 years and according to the respondent-landlord for the last 8 or 10 years and during this long period admittedly for about ten times the rent had been paid in lump sum for a period of two to three months without any objection from the respondent-landlord otherwise it was paid throughout regularly every month.
Accordingly, the learned Rent Controller on the basis of such evidence and the circumstances on the record has concluded that the landlord was in the habit of accepting the rent periodically from the tenant in lump sum and, therefore, refused ejectment holding that there was no wilful default on the part of the appellant-tenant, exercising judicial discretion in favour of the tenant. Reliance was placed on the case of Sajjad Ali Khan and 2 others v. Pir Bux Mahar (PLD 1972 Kar. 220) in that respect.
9. The learned 1st Appellate Court placing reliance on the case of Syed Riaz Ali v. Shabbir Ahmed Khan.( 1971 SCMR 598) held that the receipt of rent by the respon--dent for the several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent and that the Rent Controller did not exercise his discretion judicially and decided in favour of the respondent --landlord. What I find that this decision would not be exactly applicable in the circumstance of the present case as even in this decision it was maintained that the Rent Controller had discretion to condone delay in payment of rent in suitable cases exercising his discretion judicially and not arbitrarily. In the case of Muharrmad Shafi v. Zahir Hussain acid another (PLD 1978 Lah. 862) while referring to the case of Syed Riaz Ali v. Shabbir Ahmed Khan and other cases it was maintained by the learned Judge Muhammad Afzal Zullah (as he then was) that the Rent Controller could condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that the rent was not to be paid every month. It was further maintained that in such a situation the default might not be wilful and deliberate and the Rent Controller might not order eviction; because it is discretionary with the Rent Controller not to direct eviction, in individual cases, despite default having been proved. It was further observed that the conclusion that can safely be drawn from the ruling of their Lordships in the cases including that of Syed Riaz Ali v.
Shabbir Ahmed Khan, that although such practice could not change the terms of tenancy nor the legal liability of the tenant could be affected by such conduct, the same could be utilised for invoking the discre--tionary power of the Controller to decide against eviction in case the default is not wilful. It was observed by the learned Judge Dorab Patel, J. (as he then was) in the case of Muhammad Alimullah v. Ziaus Islam (PLD 1973 Kar. 56) that if the tenant had been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for 2 or 3 month, he should be entitled to discretion in his favour because even a reasonable man can some--times through inadvertence overlook his obligations, though in that case failure to pay rent for 21 months was not condoned. In the instant case the failure is only for three months when admittedly the appellant-tenant mad efforts to send the rent even by money order, according to the learned Rent Controller when he had no knowledge that an application for ejectment was filed and that on a number of previous occasions admittedly the respondent landlord had agreed to accept rent periodically when otherwise for a large number of years it was paid regularly.
Considering the entire facts and law in the circumstances of the case, in the light of the above position of law in view, the default was not wilful and that the learned Rent Controller has exercised his discretion judicially and not arbitrarily in favour of the appellant tenant, by not directing his eviction. The finding of the learned 1st Appellate Court on this plea, therefore, has no legal justification and it needs to be se aside.
10. So far the plea of bar of limitation in filing the 1st appeal in the Court of learned Additional District Judge is concerned, it would appear that the 1st appeal was hopelessly time barred when the learned Additional District Judge had condoned the period of limitation of six days only on the basis of wrong assumption of facts. The fasts admittedly are that the learned Rent Controller passed the order of eviction on 30-8-1974 and the copy was supplied to the respondent-landlord on 12-9-1974. The appeal was presented in the 1st Appellate Court on 21-10-1974 without payment of court-fee. The court-fee was paid on 12-2-1979. It has been contended on behalf of the appellant-tenant that admittedly the 1st appeal was presented after a period of 10 days after the expiry of period of limitation without payment of court-fee. It has been further contended that the appeal presented without payment of court-fee is not a valid presentation and that since the court-- fee was admittedly paid on 12-2-1975 the presentation of appeal was admittedly 122 days beyond the period of limitation. Reliance in that respect has been placed on a Division Bench ruling of this Court Mst. Sadiqunnisa v Khan Sahib Agha Muhammad Sultan Mirza and 8 others (PLD 1972 Kai. 103), wherein it was held that a plaint or memo. Of appeal cannot be treated as properly presented so long as proper court-fee is not paid. Reliance in that respect has also been placed on the cases of Ally Brothers & Co. Lahore v. Secretary, Govern--ment of Pakistan, Ministry of Commerce, Islamabad (PLD 1979 Lah. 857) and Mst. Walayat Khatoan v. Khalil Khan and another (PLD 1979 SC 821). In the instant case, therefore, the 1st appeal was presented on 12-2-1975 the day on which the court-fee was paid, 122 days beyond the period of limitation. It is obvious that the First Appeal without the court-fee was presented 10 days after the period of limitation was over and 122 days on payment of court-fee after the expiry of the period of limitation. The learned Additional District Judge has calculated only six days delay in presenting the appeal as observed by him in the impugned judgment on the basis of wrong assumption of facts. The learned counsel for the respondent-landlord has contended that since the 1st Appellate Court has condoned the delay of six days it could also condone the delay of 14 days and that in any case this Court has ample power under sections 148, 149 and 151 to do justice by condoning the delay, if sufficient cause was made out for such condonation. In that respect he has relied on A I. R 1937 Lah. 688, AIR 1958 Manipur 7, AIR 1961 SC .882 and P LD 1970 Dacca 532. That may be true but in the present case the delay is for 122 days and not for 10 days only and that neither the learned First Appellate Court has given any thought for consideration of condonation of such deplorable delay nor the learned Advocate has been able to assign an reasons for such delay of 122 days for this Court to interfere at this stage. Obviously, therefore, no sufficient cause has been made out for such deplor--able delay of 122 days in filing 1st appeal. Accordingly, this delay was not condoned by the 1st Appellate Court and this Court does not find any sufficient cause for condoning it. The 1st appeal was filed after such on time after the period of limitation was over and it could fail on that ground alone.
11. The appeal filed by the appellant-tenant, therefore, succeeds on all the three pleas. The impugned judgment of the 1st Appellate Court directing appellant-tenants eviction from the premises in question is, therefore set aside and the appeal is allowed in the circumstances of the case with no order as to costs.