' This second appeal is filed against judgment dated 21-7-1977 of learned VIIth Additional District Judge, Karachi, whereby appeal filed under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) against the order of ejectment granted by the Xth Civil Judge and Rent Controller, Karachi has been allowed.
2. Briefly stated the relevant facts are that the appellant firm before me is landlord (hereinafter to be referred as landlord) and the respondent firm is tenant (hereinafter to be referred as tenant) in respect of shop Premises No, 128 in the building known as "Liaquat Bazar" in Serai quarters, M. A.
Jinnah Road, Karachi 2. Monthly rent is Rs, 66 p. m. And terms and conditions between the parties are governed by agreement executed between them. Landlord applied for ejectment on the grounds of default in the payment of monthly rent, structural alteration without permission and damage caused to the demised premises. Tenant contested the proceedings and denied the allegations and after assessm ent of evidence produced by the parties the learned Rent Controller granted ejectment on the ground of default only and further held that the other two issues so framed were not proved. Tenant went in appeal, which has been allowed, in consequence whereof the order of ejectment has been set aside as stated above.
3. I have heard Mr. Nisar Ali counsel for appellant and Mr. Fazal Bhoy, counsel for respondent. Main grievance raised on behalf of the landlord is that order of ejectment passed by the Rent Controller is just and proper and consistent with evidence brought on the record and the Appellate Court has fallen into error by misreading the evidence. In this context, it was further submitted that default of payment of rent from June, 1975 to August, 1975 has been admitted by the tenant and it was not open to him to take the plea that the rent bills for these three months were not received by him and he was waiting for them and ultimately sent money order to pay up the rent for three months and further finding of the Appellate Court that the money order was accepted by the landlord before filing of rent case on 25-9-1975 is factually incorrect for the reason that the rent case was not filed on that date but on 25-8-1975 and the money order was received on 26-8-1975 and that too under protest. It appears from the impugned judgment of the Appellate Court that the line of reasoning adopted is that there was practice between the parties according to which the landlord used to send rent bill after which the tenant used to make the payment of rent and for the period of default alleged the rent bills were not sent, hence the tenant was constrained to send the money order for three months which was accepted by the landlord and that was done before the filing of the rent case. It also appears that perhaps due to inadvertence the Appellate Court was under the impression that the rent case was filed on 25 9-1975, when in fact the rent case was filed on 25-8- 1975. Mr. Fazal Bhoy argued that notwithstanding the inadvertent mistake with regard to date the conclusions drawn by the Appellate Court are supportable by the evidence brought on the record.
It is, therefore, necessary to go into the evidence produced by the parties.
4. Before the learned Rent Controller landlord has examined one witness namely Abdul Rasheed, who is Managing Director of the landlord firm. Likewise tenant has examined one witness namely Muhammad Ibrahim Sherazi, who is Director of the tenant's firm. It may be pointed out at the very outset that in the application filed for ejectment in paragraph 2, it is ' averred that there is an agreement in writing dated 11th June, 1966 executed by the parties which governs the terms and conditions of tenancy. In the written-statement assertion about the agreement is admitted but it is further stated that there was a practice between the parties according to which the landlord used to send the rent bill and after that the tenant used to pay rent. Photostat agreement Exh. A/1 is on the record. Paragraph 3 of the agreement clearly states that the tenant shall pay the rent regularly in advance before 5th day of each English calendar month to the landlord. Abdul Rasheed witness of landlord, who has produced this agreement, has further deposed that the tenant is habitual defaulter and before the filing of ejectment application the tenant was in arrears of rent from June, 1975 to August 1975. He has further stated that bills of rent used to be sent to the tenant regularly. He has also stated that for the months of default also the bills of rent were sent, which were accepted by the person on behalf of tenant who was sitting in the demised premises. The rent bills in dispute have been produced as Exhs. A/4, A/5 and A/6 on the record. In these bills there is a column for date on which they were sent. In Exh. A/4 is bill for June, 1975 which was sent on 2nd June, 1975. A/5 is bill for July, 1975 which was sent on 1st July, 1975.
A/6 is bill for August 1915, which was sent on 1st August, 1975. In Exh. A/5 arrears of two months are shown and in Exh. A/6 arrears of three months are shown. There is also column in these bills for signature of receiver. These bills appear to be signed by the some person who has signed rent bill Exh. A/3. Furthermore, these rent bills, which are on printed form, at the top it is printed "important" "due date for payment is 5th of each month in advance". Money Order coupon Exh. 0/2 on the record shows that the same was accepted on 26-8-1975 under objections. On the other hand Muhammad Ibrahim Sherazi witness for tenant has deposed that the landlord did not send rent bills for months June to August, 1975 and he has sent a notice dated 13-6-1976 by registered post A/D and has produced the copy of the letter and A D receipt as Exh. 0/3 and Exh. 0/4. He has further denied having received Exhs. A/3 to A/6 and further denied that they were signed by his employer.
So far notice of the tenant mentioned above is concerned, the same has been replied by the landlord by notice of Advocate Exh. A/12 in which the allegation of non-issue of rent bills has been denied and assertion is made that the tenant has failed to pay the rent in spite of receipt of rent bills. Witness for the tenant has further deposed before the learned Rent Controller that it is correct that he did not pay the rent as the bills were not sent by the applicant hence he sent the money order.
5. The question that arises for consideration is that in spite of whatever the evidence indicates as stated above can the tenant take up the plea that there was a practice according to which the landlord used to send rent bills after which he used to pay rent. This plea is in contravention of the terms of agreement which clearly envisages that the rent is payable in advance before 5th of each calendar month. Execution of this agreement or continuation of its operation has not been denied by the tenant. It is held in the case of Shabbir Ahmad Khan v. Syed Riaz All (1) that in law the tenant could no lead evidence in variation of the terms and conditions of the written agreement. In view of this legal position it can be said that in the instant case it was not open to the tenant to take up the plea which he has and h B did not have to wait for the receipt of rent bills when the agreement provide that he had to pay the rent before 5th of each month. Moreover, even the rent bills as stated above appear to have been sent to the tenant before the
(1) 1971 SCM R 59$ date due for payment of rent. Denial of receipt of rent bills is not of much help to the term ant when he is bound by the terms of agreement to pay the rent before 5th of each month. In the instant case default is admitted and even the fact that rent for three months was sent by one money order in lump sum proves default id-the payment of monthly rent. In this context, I may say further that even if landlord in the past had accepted rent in arrears from the tenant on some occasions, that would not be deemed to be variation of terms and conditions of the agreement. 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. Reliance is placed on the case of Messrs Tar Muhammad Janoo v. Taherali and others (1). It is, therefore, clear that in the instant case tenant cannot be allowed to take up the plea that there was a practice to wait for rent bills to be issued by the landlord, hence the tenant did not pay rent because he did not receive the rent bills. This plea is against the terms and conditions of the agreement by which the parties are bound. In the circumstances and for the facts and reasons mentioned above I hold that default in this case by the tenant is wilful and is not condonable. I, therefore, set aside the impugned judgment of the Appellate Court and restore order of ejectment passed by the Rent Controller. In the result appeal is allowed with costs. Tenant is directed to hand over vacant possession of demised premises within two months from today.
(1) 1981 SCM R 93