1. ' This appeal is directed against the order of the learned Rent Controller, Karachi, dated 10-4-1980 whereby the Rent Case No, 2042 of 1978 filed by the appellant was dismissed.
2. ' The facts leading to this case are that the respondent Musa is occupying the disputed shop on Plot No, 14/E, Block Ill, Commercial Area, near Gol Market, Nazimabad, Karachi, which is the property of the appellant, Dr. S.M. Satter. The appellant's case is that the respondent was put in possession of the demised premises as a tenant on monthly rent of Rs,160 from first June, 1973. On 9-6-1973 rent deed was executed between the parties which inter alia stipulated that the rent would be paid in advance by 5th of each calendar month and receipt would be issued, acknowledging the payment of rent. The respondent for the first time defaulted in payment of rent from January, 1975. However, in April, 1975 he paid a lump sum of Rs,300. Neverthe less, the Rent Case No, 25/76 was filed by the appellant, seeking ejectment of the respondent from the disputed shop. During pendency of that case, the respondent not only cleared all rent dues but also apologized to the appellant, promising to be regular in paying the rent in future. On this the appellant withdrew his case on 25th August, 1976. Once again, the respondent made default in payment of rent from January, 1978 as a result of which the present litigation was initiated on 26-4-1978 by filing Rent Case No, 2042 of 1978, seeking ejectment of the respondent on the sole ground of default in payment of rent.
3. ' The respondent opposed the ejectment application denying the allegation that he had defaulted in payment of rent. Though he admitted the execution of the rent deed, dated 9-6-1973, yet he refuted the allegation that during the pendency of the earlier case, he had apologized to the appellant and promised to be regular in paying the rent. The plea taken by the respondent was that due to his professional engagements, the appellant could not spare time for issuing receipt, and therefore as and when the rent was offered to him and receipt was demanded, he got annoyed and even threatened to get the premises vacated. Thus, according to the averment made by the respondent, the appellant avoided accepting the rent on the pretext of his heavy engagements with the result that the respondent had no option but send the rent by money order which, too, was declined by him. Thereupon the Respondent is stated to have started depositing the rent in Court.
4. ' After taking into consideration the evidence produced by the parties, the learned Rent Controller dismissed the ejectment application as mentioned above. Being aggrieved by the order of dismissal, the appellant has come in this appeal.
5. ' The learned counsel for the parties were heard at great length and the appeal was accepted by short order, dated 18-4-1984 with no order as to cost. By the same order the respondent-tenant was directed to hand over the possession of the demised premises to the appellant within three months subject to the condition that the respondent-tenant will continue to deposit the monthly rent regularly in Court and in the event of any default in this regard, he will be ejected from the premises without any further notice. Following are reasons in support of the short order: ' In the ejectment application which was filed in 26-4-1978, the allegation of the appellant-landlord (hereinafter referred to as landlord) is that respondent-tenant (hereinafter called as the tenant) made default in payment of rent from January, 1978. That is to say by the date of filing of the ejectment application,' the tenant was in arrears of rent for four months, namely January, February, March and April, 1978. As rent was payable in advance by 5th of every calendar month as per agreement between the parties, even the rent for the month of April had become due by the date on which the ejectment application was filed. It appears that the learned Rent Controller while discussing the evidence on the issue with regard to the default in payment of rent, has referred to a number of receipts issued by the landlord indicating the practice of paying the accumulated rent of several months in lump sum. The learned Rent Controller has also taken pains to show .in the course of the appraisal of the evidence on the said issue that even after the withdrawal of the. earlier rent case by the landlord on the 'alleged apology and undertaking of the tenant to be regular in future, the landlord continued to accept the accumulated rent in lump sum periodically.
6. As pointed out in the impugned order, the last payment of the accumulated rent for the months from July, 1977 to December, 1977 was made on 9-11-1977 vide receipt (Exh.P /5). As for the period of default involved in this case (i.e, from January, 1978 to April, 1978) the learned Rent Controller has observed as follows:-- "In April 1978 when the rent is due from January, 1978, the appellant has filed this case without serving any notice of demand of rent upon the opponent. The opponent must be under the bona fide impression that because of the established long practice for payment, of rent after several months, he will not be committing any willful default by paying rent after April, 1978. The appellant had been accepting the rent all the times without any protest and issuing receipts on the paper of his letter-pad. He is himself scribe of the receipts. Had he protested he would have at least endorsed such protest on the receipt?"
7. ' From the above observations it is gathered when the landlord went to the court in April, 1978, the tenant who was in arrears of the rent from January, 1978 was under the impression that he had committed no default because of the practice of paying the accumulated rent in lump sum. When the learned counsel for the tenant was confronted with the above situation, he frankly conceded that when the ejectment application was filed, the rent for four months was outstanding against the tenant. He, however, argued that since the practice had developed and even the landlord did not object to such practice of accepting the accumulated rent of several months in lump sum, the failure on the part of tenant to pay the rent for four months prior to filing of the ejectment application could not be held as default, making the tenant liable for ejectment. This argument was far from convincing. Suffice it to say that any practice which is in violation of law cannot be accepted as legal and binding. It is a common ground that as per agreement between the parties contained in the rent deed executed by them as far back as 9th June, 1973, it was, inter alia, provided that the rent would be payable in advance on or before 5th day of each calendar month and that for each payment, valid receipt will be issued by the landlord and no payment will be recognized without any valid and proper receipt from the landlord. No doubt, the rent deed was valid only for eleven months. Consequently, the agreement contained therein came to an end at the expiry of the said period of eleven months. Nevertheless, the relationship of the landlord and the tenant continued between the parties even after the expiry of the aforesaid agreement. Thus, the parties came to be governed by law and the tenancy between them became statutory tenancy. When the ejectment application was filed, the West Pakistan Urban Rent Restriction Ordinance, 1959 held the field. As provided in section 13(2)(i) of the said Ordinance, the tenant was obliged to pay or tender rent due from him within fifteen days after the expiry of the time fixed in the agreement of tenancy and in absence of any such agreement within sixty days from the period for which rent is payable. Thus, the practice of paying the accumulated rent in lump sum relied upon by the tenant was not in consonance with the requirement of law and as such cannot be approved as legal and binding. In this connection, reliance has been placed on the latest Supreme Court authority reported as MRs, Alima Ahmed Begum v. Ameer All PLD 1984 SC 32 wherein it was held: "The alleged practice of the attorney of the landlady of collecting accumulated rent is of no avail in explaining these delays and . defaults..."
8. ' White making the above observations the Supreme Court followed the law laid down by it in the case of Dr. Syed Warisali Tirmizi v. Liaquat Begum 1980 SCMR 601.
9. From the above authorities it is clear that the practice of payment of accumulated rent in lump sum has no legal recognition and, therefore, it cannot be'availed by the tenant as a ground for the delayed payment. In the instant case the rent for the months of default was never paid before filing of the ejectment application. Thus the tenant had made a clear default in respect of rent for the months from January, 1978 to April, 1978.
10. ' The next argument of the learned counsel for the tenant was that at the time of execution of rent deed in 1973 the tenant had deposited with the landlord Rs,800 as a security which was refundable to him only on vacating of the shop in dispute. Therefore, his submission was that since the said security amount had not been returned to the tenant the rent due from the latter could be adjusted from the said amount of the security. Consequently,. the tenant could riot be held as defaulter. No doubt, in para 8 of the rent deed it is mentioned that the tenant has paid to the landlord a sum of Rs,800 as fixed deposit which will be refundable to the tenant only on his vacating of the premises and handing over the vacant possession thereof to the landlord in good condition. But it is stipulated in the same para that this amount shall not be adjustable towards the rent or other charges, etc. Thus, it was agreed between the parties that the security would riot be adjusted towards the rent dues. Apart from this, the said security deposit was a part of the agreement and was paid in pursuance of the agreement made between the parties on 9th June, 1973. Admittedly, the agreement had expired long ago. The question arises if the landlord still retained the said amount even though near a decade had elapsed since expiry of the agreement.
11. If the landlord still had the amount with him the tenant was free to mention it in his written statement, claiming further the adjustment of the amount towards the rent due. However, the written statement which lays down the foundation of the tenant's case is absolutely silent'in this regard. Admittedly, the tenant has not even referred to the security deposit in his evidence in this case nor has he put any such question in cross-examination to his adversary, namely the landlord.
12. In absence of the material to show that the security deposit was still in tact with the landlord. It is not possible to hold that it is adjustable towards the rent arrears due from the tenant. Accordingly, their argument of the learned counsel for the respondent is also of no help to him.
13. ' The upshot of the above discussion is that the tenant has committed default in payment of rent and as such he is liable to eviction on that ground. Accordingly the appeal was accepted and consequently the impugned judgment stood set aside.