1. This second appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) is directed against the order dated 5-10-1976 passed by the 1st Additional District Judge, Karachi in Rent Appeal No. 78 of 1976 upholding the order of the Rent Controller dated 30-1-1976 whereby the Controller ordered the eviction of the appellant on the ground of default in payment of rent.
2. It is not disputed that the appellant had not paid the rent for the months of May and June, 1974 within the statutory period and was therefore, clearly in default and that is also the concurrent finding of the Controller, and the Additional District Judge, Karachi. What is contended before me by Mr. Maroof Ali Khan, the learned counsel for the appellant is, that, on the facts and circumstances of the case, the discretion has not been properly exercised by the Controller and the Additional District Judge, Karachi. It is, therefore, necessary to refer to them briefly.
3. When the respondent filed an application under section 13 of the Ordinance on 21-9-1974, the appellant had not paid the rent for the months of May to August, 1974. The plea taken by the appellant in paragraph 2 of his written statement was that he was very regular in payment of rent and since the applicant-respondent wanted to get the house vacated as he wanted to increase the rent, therefore, when the rent was tendered he refused to accept the same. However, it has come in evidence that the rent for the month of February, 1974 was tendered to the respondent on 9-6-1974 vide Exh. 6-A. The rent for the month of March, 1974 was tendered on 14-7-1974 vide Exh. 6- B and the rent for the month of April, 1974 was tendered on 11-8-1974 vide Exh. 6-C. Thus for all these months the rent was tendered beyond the statutory period. The rent for the months of May, 1974 to September, 1974 was sent by money order (Exh, 6) on 9-9-1974 which was again so far as the rent for the months of May and June, 1974 are concerned was beyond the statutory period. The explanation of the appellant that the attorney of the respondent had refused to accept the rent was not accepted by Controller and the same has also not been accepted by the Additional District Judge Karachi for cogent reasons. I need not go into them. It would suffice to point out that the appellant has admitted in his cross-examination that the attorney of respondent used to come every month for collecting the rent. The attorney of the- respondent in his deposition has stated that whenever he went to collect rent from the appellant he used to ask him to come again. This statement finds support from the receipts Exhs. 6-A, 6-B, 6-C. If admittedly the respondent's attorney was coming to the appellant then why he did not pay rent for the month of February, 1974 next month or in April and why did he pay the same in ~ the month of June. The same would be the question in respect of rent for the months of March and April. If the respon--dent had refused to accept the rent for the month of May, 1974 when tendered he should have immediately sent the same by money order but it is also an admitted position that the rent for the months of May to August, 1974 and alongwith rent for the month of September, 1974, was sent only on 9-9-1974. Thus it is, clearly established that the appellant was a habitual defaulter.
4. Accordingly, the finding of the Controller as well as of the additional District Judge, Karachi that the appellant was a habitual or wilful defaulter is correct: It was submitted by Mr. Khan that the respondent used to accept late payment and that being the course of dealings between the parties, the discretion should not have been exercised in favour of the respondent. Relied on Syed Riaz Ali v. Shabbir Ahmed Khan (1971 SCMR 598) and Muhammad Ala Noor Muhammad (1973 SCMR 606).
5. But it is in evidence of the attorney of the respondent as already pointed, that he used to go to the appellant every month but the appellant to ask him to come again and again. In these circumstances, it cannot be said that the respondent gave any impression that he would a condone the default. He perhaps did so because the rent of the premises was only Rs.37.50 per month and the litigation would have been quite expensive and time consuming Mr. Maroof Ali Khan himself has referred to Muhammad Alam v. Noor Muhammad wherein it was observed by the learned Judges of the Supreme Court at page 608 of the report as follows "Another aspect of the case is that the appellant was required to pay rent by the 5th day of every month as stipulated in the rent deed Exh.
27. If he failed to pay rent within fifteen days after expiry of the date fixed in the agreement of tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law."
6. "In the present case the appellant failed to prove the alleged `practice'. Indeed he said he paid rent `monthly sometimes after two months or three months'. Such a vague statement did not make out a `practice' which would deviate from the date fixed in the agreement of tenancy. The solitary instance of payment of rent for three months on 11-3-1965 indicated condonation of default by the landlord for this period, but did not vouch for future defaults. The default being admitted, the appellant was liable to be evicted."
7. "Moreover, the receipt of rent by the respondent for 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. In this view the High Court had properly set aside the orders of the lower Courts and allowed the application for eviction."
8. Same is the case here. The respondent by accepting late payment of the rent for the months of February, March and April had only condoned the defaults but on this premises it cannot be argued that he had agreed to accept the rent after three months after it became due. No such agreement could b implied by the conduct of the respondent.
9. 1972 SCMR 384) the Rent Collector of the landlord used to come at an interval of several months and collected rent in lump sum. The practice was denied. It was observed by Salabuddin Ahmed, J.
10. As follows "The implied agreement was never pleaded by the petitioner in his written statement. Such practice of payment of rents in a lump sum has been denied by the Rent Collector appearing as a witness on behalf of the respondents and the petitioner has failed to prove that the practice was so consistent as to give rise to an implied agreement. Both the Controller and the First Appellate Court have concurrently found that there was default on the part of the petitioner, and this concurrent a finding of fact has been accepted by the learned Single Judge of the High Court. There is, therefore, no substance in this contention."
11. The concurrent findings of the Controller and the First Appellate Court were sufficient to - warrant dismissal of this appeal. However, even after examination of the submission, no different order could be passed in this case for I have reached the conclusion that discretion has been properly exercised in ordering the eviction of the appellant. I, therefore, dismiss this appeal with costs.