This appeal has been filed against the judgment passed by the learned 1st. Additional District Judge, Karachi on 13-9-1976 whereby he allowed the appeal, set aside the order of the Rent Controller and ordered eviction of the appellant.
2. The brief facts of the case are that in early 1972 the appellant entered into an agreement of tenancy with the respondent in which it was agreed that the tenant shall pay rent at the rate of Rs.
50 per month to the respondent in respect of the shop situated on Plot No. 239/2 Commercial Area, Liaquat--abad, Karachi which was let out to the appellant.
The appellant paid rent from January 1972 to May 1972 amounting to As. 250 in lump sum on 10-3- 1972 for which the respondent executed a receipt Exh.
6. Rent from June 1972 to April 1973 was also paid from time to time by the appellant to the respondent for which there is no dispute.
The respondent also paid rent for the period from May, 1973 to August, 1973 amounting to Rs. 200 in lump sum for which he executed receipt marked Exh.
7. No rent however was thereafter paid or tendered by the appellant to, the respondent, consequently the latter filed an application for ejectment on 2-10-1974 in the Court of the Civil Judge and Rent Controller being case No. 1783/74 on the ground of default in payment of rent for the months of September, October and November 1973.
The respondent filed written statement wherein he admitted that rent was not paid for the period from September, 1973 till the filing of the case, but he sought to explain that the landlord had told hire that he would receive the rent yearly instead of from month to month as originally agreed.
3. On the pleadings of the parties the learned Rent Controller framed the following issues :--
(1) Whether the opponent bas committed default in payment of monthly rent?
(2) What should the order be?
4.-(i) The Respondent landlord examined himself on his own behalf while the appellant tenant examined himself in support of his defence. After hearing the parties the learned Rent Controller by order dated 12-7-1975 dismissed the aforesaid ejectment application on the ground that the respon--dent was collecting rent periodically which was corroborated by the Rent receipts Exhs. 6 and 7 and therefore according to the learned Rent Controller there was no wilful default and thus a fit case where he should exercise his discretion in favour of the appellant. The learned Rent Controller relied upon PLD 1972 Kar. 220 wherein the learned Single Judge of this Court observed that where it is proved from the record that the landlord was in the habit of receiving arrears of rent periodically from the tenant in lump sum and the Controller refused to order ejectment holding that there was no wilful default on the part of the tenant, the Rent Controller had exercised his discretion judicially and properly m favour, of the tenant.
(ii) Against the aforesaid- ocher of dismissal of ejectment case, passed the Rent Controller, the respondent filed Appeal No. 403 of 1975 which was heard by the learned 1st Additional Judge, Karachi who allowed the appeal, set aside the order of the Rent Controller and ordered the ejectment of the appellant.
5. Against the aforesaid judgment of the learned 1st Additional District Judge this Second Appeal has been preferred by the appellant/tenant under section 15 of the then West Pakistan Urban Rent Restriction Ordinance,1959.
6. Mr. S. Zaheer Hassan, the learned counsel for the appellant, sub--mitted that the rent could not be paid from month to month in spite of the agreement to pay rent monthly as the respondent landlord had himself asked the appellant that he would receive the rent for one year at a time in lump sum. It was further argued that the discretion was exercised by the Rent Controller in favour of the tenant and thus according to the learned counsel the first appellate Court was not justified to interfere with the order passed by the Rent Controller. The submissions of the learned counsel for the appellant, however, do not find support from the record. The plea set up by the appellant in the written statement and which has also been urged before this Court is that the Respondent landlord had himself asked the appellant/tenant that he would get "one year's accumulated rent". In support of the plea of alleged practice to pay the rent in lump sum periodically, the learned counsel for the appellant relied upon the two receipts Exh. 6 and Exh. 7, referred to above. I however find that the plea of alleged agreement or representation alleged to have been made by the respondent that he would not receive rent of every month but would receive one year accumulated rent, does not find any support from the record of the case. 1t will be note that the Respondent/landlord had appeared in support of the case as a witness wherein be had stated in the examination-in-chief that the appellant is his tenant at a monthly rent of Rs. 50 on the condition that this monthly payment of rent shall be made by the tenant every month and that the tenant had not paid the rent from September 1973. He further expressly stated that there was no agreement between him and the appellant/tenant that the latter would pay rent yearly. The landlord/respondent was subjected to cross-examination but no suggestion was even made in his cross-examination that there was any agreement or representation made by the respondent that he would receive accumulated rent for one year at a time.
Besides in his own cross-examination, the tenant himself admitted that there was an agreement between the parties in which he had agreed to pay the rent monthly to the respondent and that after the aforesaid agreement was made, no other agreement was made between him and the respondent and the terms and conditions were never altered or changed.
It may be useful, first to refer to the principles laid down by the Honour--able Supreme Court as well as this Court, which would by the guiding rules in the light of which this case could be decided.
"That mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it."
The Honourable Supreme Court in the above case further observed that even if the landlord who bad accepted the irregular payments, it does not. Absolve the tenant from paying the rent every month and that the tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same has given rise to a practice of irregular payment of rent.
PLD 1981 Kar, 164 the learned Single Judge of this Court held :---- "The periodical acceptance of accumulated rent without any objection by the appellant, by itself did not amount to alteration of terms and conditions of written tenancy agreement if any or the provisions of law for payment and tender of rents by the tenants as laid down by West Pakistan Urban Rent Restriction Ordinance, 1959."
7. It would be noted that under section 13 of the Ordinance of 1959 then in force, it was the obligation of the tenant to pay or tender rent to the landlord within 15 days after the expiry of the time fixed under the agreement of tenancy with his landlord or in the absence of any such agreement, within 60 days from the period for which the rent is payable.
Having noted above the law and the principles authoritatively laid down, we may now examine the present case.
8. It is admitted position that the obligations imposed upon a tenant to pay or tender the rent in the manner prescribed by law and discussed above has not been discharged by the appellant in this case. In the state of evidence on record, the first appellate Court was fully justified to bold that appellant failed to pay rent as agreed. The respondent has denied that there was any agreement between the parties for payment of rent periodically or yearly. On the other hand, the appellant himself admitted in his evidence in cross-examination as noted above, that under the agreement made between the parties according to which the tenant/appellant agreed to pay rent monthly, no other agreement was made and these terms and conditions were not changed.
Here it may also be mentioned that the case reported in PLD 1972 Kar. 220 on which the learned Rent Controller has relied has been disapproved by the Honourable Supreme Court in the case reported in 1980 SCMR 601.
For the reasons stated above I find no merits in this appeal which is accordingly dismissed. The appellant is however granted four months time to vacate the premises and deliver vacant possession of the demised premises to the landlord provided he continues to deposit rent with the Nazir of the District Court, for this period. .
There shall however be no order as to costs.