The appellant is the statutory tenant of the respondent in a tenament on the second floor of a building on Plot No. S R. 61; 1;' 1 New ChalliFrere Road, Karachi. Previous to the ejectment proceedings out of which the present appeal has arisen, the respondent landlord had brought pro--ceedings in which orders of ejectment of the appellant were made by the Rent Controller on the ground of default in payment of rent on 25th January, 1965 (vide R.C. No. 35:64). However, on the same date the parties entered into a compromise reduced into writing whereby the landlord allowed the appellant to continue his tenancy on altering the rate of rent, namely Rs. 50 per month plus Rs 11) towards the water charges. This agreement has been placed on the record before the Rent Controller as Exh.
7. Condition No. 7 of the agreement between the parties stipulated as under :- "That the opponent (tenant) shall pay rent as settled above regularly."
2. In the events that happened, however, the appellant failed to pay rent for five mouths from November,1966 to March, 1967. The respondent, therefore, on 15th April, 1967 brought the present proceedings for ejectment of the appellant before the Rent Controller, inter alia on the ground of default. The learned Rent Controller after hearing the evidence of the parties, passed order dated 31st March. 1971 whereby he directed the appellant to band over possession of the premises to the respondent on the finding that he was guilty of default in the payment of rent for the period disclosed in the application. The learned IVth Additional District Judge, Karachi, in an appeal filed by the present appellant has affirmed the findings of the Rent Controller and maintained the order of eviction. The appellant has now come up in Second Appeal.
3: 1 have heard Mr. Sattar, for he appellant. The respondent and his counsel have remained absent.
4. Learned counsel for the appellant has invited my attention to Second Appeal No. 232 of 1974 Haji Mustajab v. Muhammad Umar, decided by me on 7th November, 1979. This was a case of ejectment by the respondent against another tenant in the same building. The plea of the tenant to the said cited case as well as in the present case was that it was the practice of the respondent to collect the rent from the tenants periodically in accumulated from for several months together whenever it suited him. This plea of the tenant in the cited case was rejected up to the High Court stage and it was held that in view of the statutory obligation of the tenant 'to tender rent every month and the fact that there was a written agreement of similar nature in that case for payment of rent regularly, the tenant was clearly in default. Reference in this behalf was made in the aforesaid case to, Umar Din v. Ghulam Jilani Shah (PLD 1976 Lah. 567) Muhammad Alain v. Noor Muhammad (1973 SCMR 606) and Muhammad Alimullah v. Ziaul Islam (PLD 1973 Kar. 56).
5. In view of the aforesaid learned counsel very fairly concedes that in the present case also it is not open to the appellant to plead that he is not guilty of default in the payment of rent for the period of five months. He, however, contended that as in the cited case of tenant Muhammad Umar, the present appellant is also entitled to the exercise of discretion by this court in order to relieve him of the forfeiture of tenancy. The argument is that it was admittedly the practice of the respondent not to issue rent bills every month and to collect rent for several months period--ically, which gave rise to a legitimate impression in the mind of tenant that the landlord will not hold him liable for ejectment if rents are not paid ,I every month. I regret my inability to accept this contention in the present case.
6. The question of discretion in favour of a defaulting tenant is a question of fact depending on the circumstances of each particular case. In the case of the tenant Muhammad Umar the learned Additional District Judge exercised discretion in his favour on the ground that the landlord had made a categorical admission in his deposition that he used to collect rent himself periodically some times for three months and some times for one month. It was mainly on this basis that the discretion was exercised by First Appellate Court in favour of the tenant which was maintained in Second appeal by me. Learned counsel argued that the finding in the aforesaid case proves that as a matter of practice the respondent collected rents from all the tenants including the present appellant periodically. However, it is well established that the evidence of one case cannot be imported in another case and the decision given on the basis thereof even if the parties are the same. The proper course for the appellant was to confront the respondent with his admission in the previous case and in case -of denial prove the contradiction as required by the Evidence 'Act. As far as the present case is concerned the suggestion made to the respondent in the cross- examination that he used to collect rent periodically was denied. We are, therefore, left only with his own assertion by the appellant in this behalf which is contrary to the terms of the contract as stipulated in para. 7 of the written agreement of tenancy reproduced above. It cannot be, therefore, held that the appellant was under the impression that by a consistent course of conduct a practice had been established for the respondent to recover rent with intervals of several months. The appellant has produced only to instances of rent collected once on 7th October. 1966 and secondly on 3rd March, 1967 on both occasions for 2 months, which is hardly sufficient to establish a consistant course of dealing. The other distinguishing feature of this case is that the discretion of the Courts below was not invoked or at any rate no discussion on the question of discretion finds place in the judgments. On a question of fact therefore, it is difficult to give a decision for the first time in Second Appeal.
7. For the foregoing reasons there is no merit in this appeal which is accordingly dismissed with no order as to costs.