1. The two Courts below concurrently found that the default committed by the respondent was not wilful and deliberate and accordingly exercised the discretion in favour of the respondent under section 13(2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959, by refusing to pass the order of ejectment. The appellant has challenged the order of the Courts below in this appeal as contrary to law and the principles laid down by the superior Court for exercise of discretion in such cases. I have beard Mr. Hussain Adil Khatri, the learned counsel for the appellant and Mr. Faizuddin the learned counsel for the respondent. , . .
2. The learned counsel for the appellant, urged before me that the documentary evidence on record has not been correctly appreciated by the Courts below. It is contended that the rent receipts produced by the res--pondent in evidence show that sometimes the rent was paid in advance for several months together while sometimes it was paid in lump sum after arrears were accumulated. It is accordingly submitted that the documentary evidence failed to disclose any consistent practice being followed by the landlord for recovery of the rent in lump sum at specified intervals. According to learned counsel at best it was a case of irregular payment- by a tenant which was generously condoned by the landlord which could not give rise to a plea of estoppel or variation of the statutory obligation of the tenant. The period of tenancy is admitted to have started from 1968 and it is also admitted before me that the receipts which are produced in evidence are all the receipts issued to the respondent by the appellant until the filing of ejectment application. It will therefore, be advantageous to reproduce here all the ten receipts produced before the Rent Controller in evidence showing payment of rent in order to appreciate the contention of appellant.
2. These are as follows :-
(1) Receipt dated 14-2-1968 for Rs.12.50 for the period September, 1967 to January, 1968 (A-8).
(2) Receipt dated 5-4-1968 for Rs.30 for April 1968 to March, 1969 (A-2).
(3) Receipt dated 20-8-1969 for Rs.30 for April, 1969 to March, 1970 (A-7).
(4) Receipt dated 26-8-1970 for Rs.30 for April, 1970 to March, 1971 (A-9).
(5) Receipt dated 31-7-1972 for Rs.30 -for April, 1971 to March, 1972 (A-5).
(6) Receipt dated 4-12-1972 for Rs.45 for April, 1972 to December, 1972 (A-4).
(7) Receipt dated 3-5-1973 for Rs.20 for January, 1973 to April, 1973 (A-11).
(8) Receipt dated 4-8-1973 for Rs.20 for May, 1973 to August, 1973 (A-6).
(9) Receipt dated 17-1-1974 for Rs.20 for September, 1973 to December, 1973.
(10) Receipt dated 26-1-1974 for Rs.60 for January, 1974 to December, 1974.
3. A perusal of the above receipts shows that right from the inception of tenancy there was no settled practice followed by the landlord for recovery) of rent. There is however, no doubt that rent was recovered on all occasions A in lump sum for several months at a time. As for instance, on 14-2- 1968 the appellant recovered 5 months rent at a time after the expiry of period while on 4-12-1972 he recovered 9 months' rent at a time after the expiry of period. Similarly on 3-5-1973, 4-8-1973 and 17-1-1974, rent was recovered by the appellant on each occasion for 4 months at a time respectively. However, on 5 other occasions, namely, 5-4-1968, 20-8-1969, 26-8-1970, 31-7-1972 and 26-1-1974, rent was recovered in lump sum for 12 months at a time and out of these five payments on 2 occasions the rent was recovered in advance while on 2 other occasions it was collected in the middle of the period and on one occasion it was recovered after expiry of the period for which rent was recovered. Before the Rent Controller the appellant bad alleged default on the part of respondent from January, 1975 to June, 1975. On the face of the above documentary evidence it cannot be said that the discretion exercised by the Courts below under section 13(2) (i) of the Ordinance, in refusing to order the ejectment of the respondent on the ground that the consistent practice of landlord followed in the case was to recover the rent for several months at a time; and therefore, the default in payment of rent for six months was not deliberate and willful, was perverse or arbitrary or contrary to the guidelines laid down by the superior Courts of this country for exercise of discretion in such cases. It cannot be disputed that under section 13(2) (i) of the Ordinance the Controller and the appellate authority had the discretion not to pass an order of ejectment against a tenant even if the default is proved if it was shown that the default was neither wilful nor deliberate but had resulted. On account of circumstances beyond the control of tenant.
4. In the present case, I am in doubt that the landlord by his own conduct by recovering the rents from 1969 to 1974 (for seven years) in lump sum at a time consistently led the tenant to believe that this practice is to continue. Therefore, before the tenant could be held to have defaulted in payment of rent in these circumstances in my opinion it was necessary to lead some evidence to show that the landlord had put up the tenant to a notice that the earlier practice of recovery of rent in lump sum at a time will not be followed in future. Admittedly no evidence was led by the appellant to prove these facts. On the contrary the appellant even did not produce the Rent Collector who allegedly went to recover rent from the respondent every month but the respondent allegedly did not pay the same. Having considered the evidence on record I have reached the conclusion that the discretion exercised by the Controller and confirmed in appeal by the First Appellate Court in the circumstances of the case can neither be termed as perverse, nor capricious nor against the principles laid down by superior Court for exercise of such discretion so as to call for interference by this Court in second appeal. I need not emphasise here that instance of inter--ference by this Court in second appeal with the discretion exercised by the lower Courts is limited to the cases where it is found that the Courts below have acted in an arbitrary or capricious manner or in disregard of the principles laid down by the superior Courts for exercise of such discretion. No such case is made out in the circumstances of the present case. The learned counsel for the appellant referred to the cases of Muhammad Alam v. Noor Muhammad (1973 SCMR 606)
5. Hafiz Dawood v. Abdul Ali Khan (1973 SCMR 598), Ali Hassan v. Abdul Qadeer (1980 CLC 912) and Muhammad Alimullah v. Ziaul Hassan (PLD 1973 Kar. 56), in support of the appeal but all these cases are quite distinguishable on facts. In none of these cases cited by the learned counsel the Courts considered a situation where the landlord consistently recovered rent in lump sum from the tenant for several months together for a continuous period of 7 years. I, therefore, find no ground to interfere with the orders of the Court below and dismiss the appeal but in the circumstances of the case there will be no order as to costs.