' This is a First Rent Appeal filed by the appellant/tenant against the order, dated 19th February, 1981 of the Rent Controller, Karachi, allowing Rent Application No. 3525/76 filed by the respondent/landlord and ordering ejectment of the appellant from the premises in question. The Rent Application was filed on 20th August, 1976 by the respondent on the ground of default in the payment of rent for the months of May, June and July, 1976. However, it was admitted by learned counsel for the respondent that on the day the Rent Application was filed there was a default for more than 60 days in the payment of rent by the appellant for the month of May, 1976 only. The solitary ground on which the Rent Application was filed by the respondent is contained in para. 2 thereof which reads as follows :- "That the opponent has failed to pay/tender the rent w. e. f. 1st May, 1976. He is defaulter within the meaning of law and has rendered himself liable to ejectment."
' In his written statement, dated 15th January, 1979 the appellant has replied to para. 2 of the Rent Application as follows :- "2. Contents of para. 2 of the application are denied and it is averred that the opponent has not committed any default in the payment of rent. That the applicant lives in the same building and used to collect rent directly from the opponent. That the tenancy commenced in February, 1975 when opponent through his brother Younus took his house on rent after paying Rs, 11,500 (Rupees eleven thousand five hundred only) as pugree to the applicant. That applicant regularly collected rent from the opponent upto April, 1976 but thereafter stopped collecting rent. That there was no reason for stopping to collect rent and opponent did not realise that the applicant had deliberately done so to concoct a case of payment of rent to eject the opponent and collect more pugree from the new tenant. Therefore when this case was filed it was a surprise to the opponent. In these circumstances it is averred that opponent is not a defaulter in payment of rent.
2. The defence of the appellant in his written statement is contained in para. 2 of his written statement which has been produced above. Briefly the defence is that both the parties lived in the same building and the respondent used to collect rent directly from the appellant, that the tenancy commenced in February, 1975 when the appellant through his brother Younus took the premises on rent after paying Rs, 11,500 as "Pugree" to the respondent, and that the respondent regularly collected rent from the appellant upto April, 1976 but thereafter stopped collecting rent and the appellant did not realize that the respondent had deliberately stopped collecting the rent.
3. It is necessary here to refer to certain events that had taken place prior to the filing of the written statement, dated 15th January, 1979. After the Rent Application had been filed, the appellant was served and a Vakalatnama was filed by an Advocate who appeared on behalf of appellant before the Rent Controller on 20th October, 1976 but thereafter no one appeared on his behalf nor any written statement was filed and in circumstances, the Rent Controller, on 22nd December, 1976 ordered the case to proceed ex parte-against the appellant. An affidavit in ex parte proof was filed by the respondent on 21st January, 1977 and by an ex parte order, dated 26th January, 1977, the Rent Application was allowed and the appellant was directed to hand over possession of the premises to the respondent. An appeal was filed against this ex parte order (Civil Appeal No. 311/77) by the appellant which was, however dismissed by order dated 30th March, 1978 of the IIIrd Additional District Judge, Karachi. The appellant then filed a Second Appeal No. 142/78, which was allowed by judgment, dated 16th October, 1978 of this Court and the case was remanded to the Rent Controller for decision on merits. In these circumstances the case came back to the Rent Controller where the aforesaid written statement, dated 15th January, 1979 was filed by the appellant. Before the ex parte order was set aside by this Court in the aforesaid Second Appeal, a Distress Warrant Application No. 108/77 was filed in March, 1977 by the respondent before the Small Causes Court, Karachi, against the appellant for recovery of the rent for the period from 1st May, 1976 to 28th February, 1977 (4) Rs, 65 per month amounting to Rs, 650. In that Distress Warrant Application No. 108/77 a written statement was filed by the appellant, in which the following pleas were taken by him :- "(2) That there is not rent due whatsoever from the opponent to the applicant as at the time of occupation of the premises. The opponent had deposited a sum of Rs, 11,500 (Rupees eleven thousand five hundred only) with the applicant against receipt dated 1 1 th February, 1975 refundable at the time of vacating the premises after deducting the dues (a photostat copy of the said receipt for Rs, 11,500 is filed and marked Annexure "A".
(3) That at the time of the payment of rent for the month of April, 1976 by the opponent it was mutually agreed upon between the parties in presence of respectable persons that since May, 1976 the rent and electric charges shall be adjustable out of the said amount of Rs, 11,500 in deposit with the applicant.
(4) That by calculation after adjustment of Rs, 650 the outstanding balance amount comes to Rs, 10,850 is still lying in deposit with the applicant.
(5) That it is astonishing that the applicant has gone back from the said mutual understanding and filed this case unnecessarily in order to harass the opponent.
(6) That the applicant has also filed a rent case No. 3525/76 in the Court of Rent Controller No. III at Karachi against the opponent on the ground of default for the same period of 10 months i. e. From May, 1976 to February, 1977 and on account of the illness of the opponent the applicant obtained on ex parte order of the ejectment against the opponent.
(7) That generally under the law the applicant is not entitled to file two proceedings in two different Courts for the dues and for the same period, and particularly when the applicant owes a sum of Rs, 10,500 to the opponent as stated above the applicant-filed the said cases illegally."
' By order, dated 5th May, 1977 of the Small Causes Court, Karachi, the aforesaid Distress Warrant Application was disposed of by the following order :- "Parties counsel present. Distrsss Warrant amount to be paid in 4 equal instalments on monthly basis by the end of each month beginning with May, 1977. In default Distress Warrant to issue. This disposes of this Distress Warrant."
' It may be mentioned here that before the judgment, dated 16th October, 1978 of this Court allowing Second Appeal No, 152/78 setting aside the original ex parte order passed against the appellant, the amount claimed by the respondent in disress warrant proceedings and had already been deposited by the appellant.
4. I have heard at length Mr. A. M. Hashmi, learned counsel for the appellant and Mr. Muhammad Sharif, learned counsel for the respondent. It was contended by Mr. Hashmi, learned counsel for the appellant that in the instant case there was no default committed by the appellant and as such the order of the Rent Controller is liable to be set aside. According to learned counsel an amount of Rs, 11,500 had been paid by the appellant to the respondent as "Pugree" at the time of taking the premises on rent. On a query from the, Court, learned counsel stated that this amount of Rs, 11,500 was not a deposit or advance payment of rent but it was a consideration for obtaining possession.
However, it was then submitted that it was a kind of refundable deposit and if tenant was not paid for a few months it was to be treated as a security for payment and at the time of vacating the premises, the rent of few months which was not paid was to be deducted and the balance security paid to the tenant, but if the default was for 6 months or more the landlord was entitled to eject the tenant as in that case the intention of the 'tenant would become clear that he did not want to pay the rent. I am at a loss to appreciate this contention of learned counsel for the appellant. Firstly it was contended that the amount was not a deposit or advance payment but simultaneously it was contended that it was a special kind of refundable deposit which could save the tenant from the clutches of the rent law relating to default in the payment of rent only if there was a default in payment of rent for a few months but could not save the tenant from ejectment if the default was for 6 months or more. It was contended by Mr. Hashmi, learned counsel for the appellant, that this was the practice in Karachi and that perhaps I should take judicial notice of the same. I am afraid it is not possible to accept this contention as, firstly no evidence was led to prove or establish such a practice in Karachi, and secondly no case law was cited to support the contention that such a practice was an established practice in Karachi. Even otherwise I have not found any force in this contention.
5. It was then contended by learned counsel for the appellant that there was only a default of one month i. e. May, 1976 and that at best could be treated as a technical default, and in the circumstances of the instant case the Rent Controller erred in not exercising discretion in favour of the appellant/tenant and in not dismissing the Rent Application of the respondent. The following 6 circumstances were mentioned by learned counsel for the appellant for the argument that the discretioe should have been exercised by the Controller in favour of the appellant/ tenant :- -
(1) The default was only for one month i. e. May, 1976.
(2) No notice had been given prior to the filing of the Rent Application by the respondent.
(3) Pugree of Rs, 11,500 had been paid by the appellant to the respondent through the appellant's brother Yunus.
(4) The parties resided in the same building and the respondent used to come and collect the rent and as did not come to collect the rent for May, 1976 the default being for one month, the Controller should have noticed this fact as a circumstances in favour of the tenant.
(5) Reliance was placed on certain reported judgments including the judgment of a learned Single Judge of this Court Amir Ahmad v. Alima Ahmad PLD 1981 Kar. 150 for exercise for discretion in appellant's favour.
(6) The amount in question i. e. For May, 1976 alongwith amounts for future months had already been recovered by the respondent through the aforesaid Distress Warrant Proceedings and the amount had also been withdrawn by the respondent from the Small Causes Court and as such there was no default on the part of the appellant.
I will first deal with the last point raised by learned counsel for the appellant that the amount had already been recovered by the respondent through Distress Warrant Proceedings. It may again be mentioned here that an ex parte order of ejectment had been passed in the rent proceedings by the Rent Controller on 26th January, 1977 an the ex parte order was set aside in Second Appeal No. 142/78 by order dated 16th October, 1978 of this Court. Before the said ex parte order, dated 26th January, 1977 was set aside, the respondent filed Distress Warrant Proceedings and recovered the rent from the appellant including the rent for May, 1976. It is an admitted position that the amount had been recovered by the respondent before the ex parte order was set aside. In my view the filing of the distress warrant proceedings, the deposit by the appellant of the rent in those A proceedings and the withdrawal of the amount by the respondent had all taken place before the ex parte order had been set aside. In the circumstances it cannot be contended that the respondent had waived the default in the payment of rent. In any case the default had ahead been committed and by filing distress warrant proceedings and recovering the rent, without anything further, it cannot be presumed that the landlord had waived the default and had given up his right to pursue the case for ejectment on the ground of default in the payment of rent. Of course, there might be cases wherefrom the circumstances and the special facts of those cases the Courts may come to the conclusion that there was a waiver on the part of the landlord as far as the default is concerned but otherwise the default that has been committed is not obliterated by subsequent payment.
6. Mr. Muhammad Sharif, learned counsel for the respondent, in reply to the arguments- of Mr. Hashmi had contended that the plea taken by the appellant in his written statement in the rent case is quite contrary to the plea taken by him in his written statement filed in the distress warrant proceedings. The contradictions between the defence taken by the appellant in the Distress Warrant Proceedings and in the instant Rent Case is apparent. In the Distress Warrant Proceedings where the written statement had been filed in March, 1977 the plea taken by the appellant as regards non-payment of rent was that no rent was due as at the time of occupation of the premises the appellant had deposited a sum of Rs, 11,500 with the respondent against receipt, dated 11th February, 1975 which was refundable at the time of vacating the premises after deducting the dues and a Photostat copy of the receipt, dated 11th February, 1975 was also filed in the distress warrant proceedings. It was further averred by the appellant in those proceedings that at the time of payment of rent for the month of April, 1976 by the appellant it was mutually agreed between the parties in the presence of respectable persons that from May, 1976 the rent and electric charges shall be adjustable out of the said amount of Rs, 11,500 deposited with the respondent. It was further averred that after adjustment of Rs, 650 a sum of Rs, 10,850 was still lying in deposit with the respondent and it was astonishing that the respondent had gone back on the mutual understanding and filed the distress warrant proceedings unnecessarily to harass the appellant. In the Distress Warrant Proceedings, therefore reliance was placed on a receipt, dated 11th February, 1975 for Rs, 11,500 and mutual agreement between the parties in the presence of respectable persons that from May, 1976 the rent and electric charges would be adjustable out of the said amount of Rs, 11,500 deposited with the respondent. If this plea is to be taken as the plea of the appellant then after April, 1976 there was no question of setting up a case that the respondent had not come to collect the rent May, 1976 and onwards and, therefore, the rent had become due or that the appellant had tried to tender the rent and it was not accepted by the respondent. In the written statement filed in the instant rent case, however, the appellant has taken an absolutely different plea and that is that rent was collected by the respondent who lived in the same building till April, 1976 and thereafter he did not come to collect the rent and there was no reason why he should not have collected the rent and that when the Rent Case was filed, the appellant realised that the default was created mala fide so as to give a cause of action to the respondent to file the Rent Case. In the written statement in the instant Rent Case, the plea has not been taken that after April, 1976 on account of mutual agreement between the parties arrived at before respectable persons, further rent was not to be collected with effect from May, 1976 and adjustment was to be made out of the "Pugree" amount paid by the appellant to the respondent. Further the specific plea about receipt, dated 11th February, 1975 has also not been taken which shows that reliance has not been placed on the said receipt on which reliance had earlier been placed in the distress warrant proceedings. In the face of two contradictory positions, the earlier stand taken by the appellant is taken as the stand of the appellant and if that is the plea of the appellant then the case becomes a case of non-payment of rent with effect from May, 1976 and the case does not remain a case where the respondent/ landlord is to be blamed for not coming to collect the rent. In the circumstances, there is no substance in the contention on behalf of the appellant that the technical default arose on account of the respondent not coming to collect the rent.
7. As regards the question of "Pugree", I have already observed that according to learned counsel for the appellant this is not advance rent or a deposit which was liable to adjustment in the normal course but that it was a special kind of deposit which was liable to adjustment only if there was a default for two or three months only. I have not accepted this plea for the reasons already mentioned and I may further add that in the Distress Warrant Proceedings a specific plea had been raised about the receipt, dated 11th February, 1975 being given on behalf of the respondent and a photostat copy of that receipt had also been filed before the Small Causes Court but in the instant Rent proceedings this receipt was neither referred to nor filed nor relied upon.
8. The contention that no notice was given by the respondent prior to the flag of the Rent Case is also of no assistance to the learned counsel for the appellant as under the law it is not necessary that a prior notice must be given before filing of a rent case on the ground of default in the payment of rent. The contention that there was a default in the payment of only one month's rent and, therefore, discretion should hay been exercised in favour of the appellant, in the circumstances of the present case, is also of no assistance as this is not a case, as observed earlier, of the landlord not coming forward to collect the rent but it is case where the first plea taken was that no rent was liable to be paid after April, 1976 as the agreement was that with effect- from May, 1976 the rent would be adjusted from the "Pugree" amount of Rs, 11,500 and that agreement was made in the presence of respectable persons. No evidence was led by the appellant to prove this understanding or agreement between the parties. Even such plea was not taken in the written statement in the instant Rent Case and no witness was examined to prove such an understanding or agreement between the patties. It is, therefore, not a case of default in the payment of on month's rent on account of some misunderstanding or on account of the landlord not coming forward or on account of any practice that rents for more than one month were being collected from time to time but it is case of deliberate non-payment with effect from May, 1976 on account of ' the agreement alleged by the appellant which agreement has neither been pleaded in the instant Rent Case nor provided by any evidence.
9. I may make a reference here to certain reported judgments cited before me during the arguments. Mr. A. M. Hashmi, learned counsel for the appellant, in support of his contentions relied upon the following reported judgments :-
(i) Mohomed Alimullah v. Ziaul Islam PLD 1973 Kar.56.
(ii) Abdul Aziz Beg v. Mushtaq Ahmed Shaikh 1980 SC MR 834.
(iii) Alif Din v. Khadim Hussain 1980 SCMR 767.
(iv) Amir Ali v. Alima Ahmed PLD 1981 Kar.
150.
' On the other hand Mr. Muhammad Sharif, learned counsel for the respondent had placed reliance on the following judgments :-
(v) Ismail v. Muhammad Siddik PLD 1961 Kar. 1n.
(vi) Muhammad Siddiq v. Herchand Rai PLD 1976 Kar.
966. (vii) Subhan Ali v. Satba' PLD 1964 Kar.
206.
(viii) Fida Hussain v. Muhammad Ibrahim 1972 SCMR 262.
(ix) Ashrafuddin v. Sabir Hussain 1973 SCMR 309.
(x) S. M. Hamid Ali v. Machdo PLD 1976 Kar.
817.
(xi) Muhammad Bashir v. Muhammad Iqbal 1980 CLC 1077.
(xii) Tar Muhammad Janoo v. Taher Ali 1981 SCMR 93.
10. Mr. Hashmi, learned counsel for the appellant, relied upon PLD 1973 Kar. 56 for the following observations made in that judgment at pages 62-63 of the report :"
'--in my humble opinion, the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent. The discharge of this statutory obligation by the tenant is a condition of his protection, and, in my humble opinion, he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13, if he was not able to trace his landlord's whereabouts despite reasonable efforts or if there was genuine dispute about the landlord's title. Again if he has been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadvertence overlook his obligations. Similarly, the case of a tenant who can prove an estoppel or an agreement to pay rent at long intervals is much stronger."
' The above observations do not help the appellant as I have already observed that it is a case of deliberate non-payment on the basis of an agreement or arrangement which was not proved as no evidence was led in that behalf.
' That reliance was placed on 1980 SCMR 834 for the proposition that where there was a defaulter for one month only the Tribunal could exercise its discretion in favour of the tenant. However, in the very same case the Supreme Court declined to interfere with the discretion exercised by the lower Court against the tenant where there was a default for one month only on the ground that such discretion was neither based on irrelevant consideration, nor erroneous or perverse.
' Mr. Hashmi cited 1980 SCMR 767 where it was observed that the fact that the landlord had in the past been accepting the rent after the due dates did not mean that the relevant term in the lease deed had become inoperative but it meant that the landlord had condoned the default in that instance and could not plead it as a ground for ejectment of the tenant. This observation also cannot come to the rescue of the appellant as the rent was recovered by the respondent through Distress Warrant Proceedings and that too after the ex parte order of ejectment had been passed.
Respondent in the instant case could not be held to have condoned the default if he resorted to distress warrant proceedings.
' The facts of PLD 1981 Kar. 150 are also distinguishable from the facts of the instant case. There were various facts and circumstances in the ease in the presence of which a learned Single Judge of this Court held that no deliberate default had been committed. The facts and circumstances which persuaded the learned Single Judge in that case to take the view that discretion should have been exercised in favour of the tenant are different and clearly distinguishable from the facts of the instant case where a case of deliberate default has been established.
11. I may now refer to the judgments cited by Mr. Muhammad Shard, learned counsel for the respondent. In PLD 1961 Kar. 111 it was held that mere acceptance by landlord of rent relating to period subsequent to notice to quit did not amount to waiver of such notice.
' In PLD 1976 Kar. 966 it was held that tender of rent beyond due date did not wash out default already committed by the tenant. In PLD 1964 Kar. 206 also it was held that if there was a default in the payment of rent by the tenant as contemplated by section 13 (2) (i) of the 1959 Rent Ordinance, such default could not be wiped out or erased by subsequent payment. In 1972 SCMR 262 it was observed by the Supreme Court that tender of rent must be made within the time prescribed by law and the contention that the defaulting tenant had deposited rent with the Rent Controller before ejectment application was filed by the landlord and, therefore, there was no default was not accepted.
' In 1973 SCMR 309 it was observed by the Supreme Court that the correct view in law was that the liability to pay or tender the rent due remains on the tenant irrespective of the higher amount demanded by the landlord.
' In PLD 1976 Kar. 817 it was held that negligence in the payment of rent was never a ground for condition of default and that a person who is negligent or is absent minded is always to suffer for his such traits.
' In 1980 CLC 1077 it was observed by a learned Single Judge of the Lahore High Court that it was the duty of the tenant to pay or tender rent to the landlord even if it was not demanded by him and if rent accumulates due to fault of the tenant and not on account of any act of omission or commission on the part of the landlord, it cannot be held that the landlord had conducted himself in such a manner as to make the tenant believe that he would not be proceeded against if the rent was not paid in time.
' In a recent case reported in 1981 SCMR 93 it was observed by the Supreme. Court at page 95 of the report as follows : "When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no 'rent deed or written agreement, a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The 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. Nor does it absolve the tenant from paying the rent every mouth, A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reasons for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. 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".
12. The judgments cited by learned counsel for the respondent confirm the principles that (i) it is the duty of the tenant of pay rent regularly even if it is not demanded by the landlord, that (ii) tender or deposit of rent prior to filing of the ejectment application does not condone the default already committed, that (iii) negligence of the tenant in committing default in the payment of rent cannot be condoned, that (iv) even if higher rent is demanded by the landlord, the tenant is liable to pay or tender the due rent and that (v) in a particular case although there may be a technical default, ejectment may not be ordered if there is no fault or negligence on the part of the tenant and his conduct can be equated with that of a reasonable man.
13. The case law discussed in para 11 of this judgment supports the case of the respondent that the appellant, in the circumstances of the instant case, has committed default and the Rent Controller has exercised discretion correctly against the appellant.
14. In the circumstances I am of the view that no case has been made out by the appellant for interference with the order, dated 19th February, 1981 of the Rent Controller in Rent Application No. 3525/76 which order is maintained and the present First Rent Appeal No. 111 o 1981 is dismissed.
There will be no order as to costs. The appellant is, however, granted time till 31st March, 1982 to vacate the premises.