1. ' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 filed by Fazl ur Rehman/tenant (hereinafter referred to as appellant) against the order of XII Senior Civil Judge & Rent Controller, Karachi dated 1.2.1981 whereby the appellant has been directed to hand over vacant possession to landlords (hereinafter referred to as respondents).
2. ' Briefly stated the facts of the Rent Case are that respondents filed application under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the appellant on 2.10.1974 in which they stated that appellant is their lessee in respect of premises No,G-I, bearing City Survey No,P.R. 2/33, Garden Road, Preedy Quarters, Karachi and he is chronic defaulter in the payment of rent and he has failed to pay to respondent 1 towards her share of rent after May, 1974 and to respondents 2 to 6 after October, 1973. The appellant in his written statement denied the allegation and stated that he has constructed partition wall alongwith other alterations at the cost of Rs,10,000 at the commencement of tenancy with the permission of landlord and amount of Rs,10,000 was paid to landlord in cash as advance rent which has not been adjusted.
3. ' Before the Rent Controller, on behalf of respondent/landlord Dr. Sultan Farooqui Exh. 5 and Muhammad Usman Farooqui Exh. 6 were examined and the affidavit in evidence of appellant Fazlur Rehman only is at page 103. He has not examined any witnesses in support of his contentions.
4. ' Dr. Sultan Farooqui stated that appellant is tenant on monthly rent of Rs,900 and his father Hamid Hussain Farooqui executed lease deed on behalf of respondents. He has deposed that his father died in 1972 and after his death the respondents were getting rent from appellant proportionately as mutually decided by them. He has stated that respondent 1, their mother, have 61.5% share in the demised premises whereas respondents 2 to 6 have 38.5%. The break up of rent is according to share in the property. He has further stated that he is authorised to receive the rent on behalf of respondents .2 to 6 and he received the rent upto the month of October, 1973 and respondent No,1 received upto May, 1974. According to his evidence respondents 2 to 6 were. Living in the premises bearing No,37-X-Block 6, P.E.C.H.S. Till November, 1974 but respondent No,1 remained there till filing of the rent case and appellant was also aware about his official address as he is working in Jinnah Hospital as Doctor since last 16 years.
5. ' He has denied about payment of Rs,10,000 as rent advance at the time of commencement of lease. They had never asked for enhanced rent. They had not given permission of carrying out repairs. He has denied the suggestions of appellant that they refused to accept registered A/D letter. Another witness Mohammad Usman has stated that after the death of his father he started collecting the rent and is maintining the account. He has produced documents pertaining to correspondence between his late father and appellant. Appellant/tenant in his evidence stated that he took the premises on Rs,900 monthly rent from respondent's through their attorney late Hamid Hussain Farooqui under an agreement dated 25th May,1963 and he paid Rs,10,000 to him as advance rent on 19th Apri1,1963 which was to be adjusted against the future rent. He has produced such receipt Exh.A-11. He has deposed that in spite of demand advance was not adjusted and letter through Advocate was sent on 15th August,1968 Exh.A-24 to Mr. Farooqui Hussain. After the death of attorney Mr.Hamid Hussain the appellant started paying rent proportionately to respondents as decided by them. The rent of respondent No,1 was received by Mr.Samad. The rent on behalf of respondents 2 to 6 was received by Muhammad Usman (respondent No,4). He has stated that Rent for the months of December, 1973 and January,1974 was paid in cash to respondent No,1 and rent for February, March, April and May, 1974 was paid by Cheque which was cashed on 11th July,1974 and payment of June, July, August and September, 1974 was paid by cheques which was acknowledged by letter, dated 12th November,1974.
6. ' So far rent to respondents 2 to 6 the appellant has stated that they had left the house and none of the respondents 2 to 6 informed him about his new address. He used to send cheques every month on old address but nobody received the same, therefore, there was no wilful default on his part.
7. ' Mr.Munawar Abbas the learned counsel for the appellant/tenant has submitted that failure of the appellant to pay rent for the alleged period to respondents Nos.2 to 6 occasioned due to change of residence and he had no information about their new address. So far rent to respondent No,1 it was argued that she accepted her share and acknowledged, therefore, there is no default. He has further contended that rent could be adjusted from the advance.
8. ' Mr.Munawar Abbas has relied upon the cases of Mohammad Yousuf v. Abdullah reported in PLD 1980 SC 298, Amir All v. Mrs. Alima Ahmed, reported in PLD 1981 Kar. 150, Mohammad Alimullah v.
9. Zia-ul-Islam, reported in PLD 1973 Kar. 56 and Tar Mohammad v. Adam 1979 CLC 854.
10. ' With reference to P L 0 1980 SC 298, it may be observed that the facts of the above case were that provision of deposit contained as one of the clauses in the agreement where it was mentioned that in case lessor does not pay rent for three consecutive months the deposit was liable to be adjusted.
11. ' In the present case there is no such clause in the agreement but only reliance is being placed on receipt E-A-11 of 19th Apri1,1963, before the lease-deed was executed. As regard receipt the letter written by the late Mr.Hamid Hussain Farooqui Exh. A-B, dated 29th May, 1963 to appellant, which states that amount was not actually received by him and he wanted his receipt back and after that during last 10 years appellant took no steps to settle dispute about advance.
12. ' Reverting to PLD 1981 Lah. 150 where it has been held that payment of rent by a tenant after committing default will not erase such default unless from the conduct and the facts of the case, it can be inferred that the landlord had waived/condoned the default and tenant cannot be permitted to urge that there was any practice in respect of payment of accumulated rent periodically unless he pleads the same in the written statement or gives full particulars of such payments in written statement and leads evidence in respect thereof.
13. ' The facts of the instant case are different. It has been admitted that rent for February, March, April and May, 1974 amounting to Rs,2212.48 and June, July, August and September 1974 amounting to Rs,2212.48 was paid later on to respondent No,1, therefore, there was wilful default and no explanation is given in written statement or produced any evidence for this default. The contents of letter Exh. A-7 are as under:- "Mr.Fazlur Rehman, New Snow-white Dry Cleaners, Garden Road, Karachi.
14. Sir, ' Receipt is hereby acknowledged of the payment of Rs,2,212.48 (Rupees two thousand two hundred and twelve and paisas forty-eight only) against the rent for June, July, August and September, 1974 for the premises under your occupation.
15. ' However, the payment was received long after proceedings for ejectment were filed against you for non-payment of rents on due date. Please'note that rents for the months of October and November,1974 are still over-due in terms of the lease agreement.
16. ' Yours faithfully, (Sd.)/ (Mrs.Taj A.Samad)." The above letter shows that respondent No,1 has neither waived nor condoned the default.
17. ' Reverting to P L 0 1973 Kar. 56 where it has been held that Ordinance imposes obligation to pay rent as it accrues, therefore, the facts of the present case are not relevant.
18. ' With reference to 1979 CLC 854 the facts relevant were that rent could not be paid because according to practice landlord used to collect rent and that ground was taken into consideration.
19. In the present case landlord himself used to send rent to tenant therefore, the facts of the present case are distinguishable.
20. ' Mr.Khalilur Rehman the learned counsel for the respondents contended that appellant has committed wilful detault in tendering the rent to respondents. He has relied upon the cases as 1982 CLC 1789 and 1983 CLC 1458.
21. ' In a case Mohammad Ali v. Mariam Begum 1982 CLC 1789 it has been held that tender of rent in lump sum after the default had already been committed would not have the effect so as to wipe out the default that had already been committed in payment of rent. The case Rais Allah Bux v.
22. Inamullah NLR 1981 A C 419 is clear on point of default.
23. ' Learned Rent Controller has fully discussed the evidence in his order and did not accept the explanation offered by appellant for nonpayment of rent and ordered his eviction. The reasoning given by the Rent Controller could not be described either as perverse or contrary to evidence on record.
24. ' I have gone through the record and impugned order and come to the conclusion that appellant committed default in payment of rent. I am, therefore, in agreement with the findings of the learned Rent Controller. Accordingly the order of the Rent Controller is maintained and appeal is dismissed with no order as to costs.
25. ' The appellant is granted time upto 15th March, 1984, to vacate the premises provided he deposits rent regularly every month in the Court of the Rent Controller. In case of default in payment of rent for any month during this period or he fails to hand over possession of premises by 15th March,1984, writ of ejectment be issued without any prior notice to the appellant.
26. Anneal