1. ' The appellant is a tenant in respect of premises known as Islamic Hotel, New Challi, Frere Road, Karachi. Originally one Abbu Ibrahim was the tenant who died on 11-5-1969. Thereafter his legal heirs became the tenant. The respondent filed an ejectment application on 23-12-1970 on the ground that the appellants have defaulted in payment of rent from May, 1969 to November, 1970.
2. The appellants pleaded that the respondents were in the habit of collecting rent from late Abbu Ibrahim in lump sum, and also used to obtain loan from Abbu Ibrahim. It was also pleaded that there was mutual trust between the parties and the rent was being paid in lump sum for 24 months, 14 months and six months and rent receipts were some time issued even after one year of the payment of rent. It was also stated that the rent was tendered but was accepted by the respondent stating that there was no hurry in payment of rent and he would accept it at a later stage. It was also averred that the respondent wanted to enhance the rent and 04 refusal he has fded the application. The Controller after considering the evidence has held that default has been committed and granted the ejectment application. In appeal, the learned Additional District Judge confirmed the order of the Controller.
3. Mr. Abdul Majid Khan, the learned counsel for the appellant has contended that the finding that default has been committed is a mixed question of law and fact and therefore the High Court is entitled in Second Appeal to disturb such concurrent finding of fact. Reliance has been placed on Muhammad Alim v. Noor Muhammad (1). In this case it was observed that "the question whether there was default within the perview of section 13 of Rent Restriction Ordinance, 1959 was a mixed question of law and fact. The High Court could therefore, displace the concurrent finding of the Courts below on this point". There can be no two views about this, but the question whether rent has been paid or not is a question of fact. In the present case the appellant was relying on the practice between the parties. Therefore before bringing the case within the preview of section 13 for determination, whether any default has been committed or not, it as necessary to establish that there was a practice between the parties to pay the rent in lump sum, and therefore, the discretion should have been exercised favour of the appellant. Mr. Abdul Majid Khan the learned counsel for the appellant has referred to the various rent receipts by which the rents were received by the respondent for the periods which vary. These receipts however, do not establish that there was any practice to pay the rent in lump sum. Receipt dated, 22th January, 1968 shows that rent from November, 1966 to December, 1967 was paid in lump sum. Again two months rent was paid on 1-4- 1964 and about two years rent was paid on 1-8-1964. From these receipts it can be established that the rent was not being paid regularly. In none of the receipts there is any uniformity in the period for which rent was paid. In order to establish a practice it is necessary that on (sic) should prove that the mode of payment alleged to have become a practice was uniform, consistent, continuous, and accepted by the other side without objection or change for a long period. If the evidence produced on record does not satisfy these conditions then unless otherwise proved it can be presumed that lump sum payment made from time to time only demonstrates that such payments were made irregularly and receipts were issued as and when payment was made or demanded by the payee.
4. Acceptance of such payments without objection may perhaps amount to waiver of default on the part of landlord if he does not take objection to it rather than a case of practice between the parties. Both the Courts below have found that no practice as alleged by the appellants has been established. This finding is based on perusal of the documentary as well as the oral evidence produced by the parties. In these circumstances, I do not find any valid reason to disturb or displace this concurrent finding of fact.
5. The appellants have admitted that the rent has not been paid for 19 months but they have tried to show that wilful default has not been committed. In these circumstances the burden was entirely on the appellants to establish such facts which were necessary for such determination. As discussed above, the appellant has not succeeded in this regard. Reference can be made to a notice Exh. 6, dated 4-11-1970 in which the respondent called upon the appellants to pay the rent for the last 19 months. He also complained that the appellants have been promising to pay it but have avoided on one pretext or the other. The respondent also threatened to take action against them. The appellant acknowledged his signature on it as a token of receipt of this notice, but later on stated that he had only signed on a blank paper. {{FOOT NOTE}}
(1) PLD 1973 SC 606 {{FOOT NOTE}} ' This version has not been believed by any Court. No evidence has been produced to show that this notice was not received. This plea has been set up by the appellant mainly because the reply to this notice was not sent.
6. ' Mr. Abdul Majid Khan the learned counsel contended that the appellants were minors and respondent wanted to enhance the rent and taking advantage of this situation he purposely created a default. This contention runs counter to the earlier plea where it was stated that there was full confidence between the parties who were on good relation and visiting terms with each other and the appellants tendered the rent, but the respondent always asked them to keep it and pay it afterwards. If the respondent had made demand for higher rent then the appellants should have suspected the bona fide of the respondents and should have remitted rent by money order or deposited the same in court. In these circumstances, the Controller was justified in refusing to exercise discretion in favour of the appellants.
7. Mr. Abdul Majid Khan the learned counsel contended that notice (Exh. 6) was not issued to all the joint tenants and therefore, no reliance can be placed on it. He has relied on PLD 1965 Lah. 269 but this authorit does not support the appellants for the simple reason that in that case servic of notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance was under consideration which notice in all respect is completely different in its effect from a notice of demand to be made by the landlord. The fact remains that the notice was served on the appellant No, 2 who was running the hotel at that time. For these reasons the appeal is dismissed. However, by consent of the parties one year time is allowed to the appellants to vacate the premises in dispute provided they pay the rent regularly. {{FOOT NOTE}} {{FOOT NOTE}}