' This is a second rent appeal filed by the appellant landlord against the concurrent finding on the question of default by the Rent Controller and the First Appellate Authority. Rent Case No. 1383/69 was filed on 15.7-1969 by the Managing Trustee of Isrnailje Ameeje Nathani Education Trust, owners and landlords of the premises in question, for the ejectment of the respondent/tenant on the following grounds (a)Default in the payment of rent for 23 months 1. e. From 1-8-1967 to 30-6-1969 ; (b)subletting a part of the premises ;
(c) making material alterations in the premises without permission from the appellant.
' The ejectment application was resisted by the respondent, who filed a written statement. On behalf of the appellant, three witnesses were examined. S. M. Yahya, Rent Collector, was the first witness. Ghulam Abbas, Managing Trustee, also gave evidence. Moosa, a neighbour, also gave evidence on behalf of the appellant. On behalf of the respondent firm, Ibrahim, one of the partners of the respondent firm, gave evidence. By order dated 20-10-1972, the ejectment application was dismissed by the Rent Controller. The appellant filed Rent Appeal No. 543/72 but the same was also dismissed by the learned Vth Additional District Judge, Karachi by order dated 12-2-1973.
Challenging the orders dated 20-10-1972 of the Rent Controller and 12-2-1973 of the First Appellate Authority, the present second appeal has been filed by the landlord. I have heard at length Mr. Mansoorul Arfin, learned counsel for the appellant and Mr. Mohsin Tayabally, learned counsel for respondent.
2. It may be observed here that the premises in question comprise of tenement No. 6, tenement No. 7 and some open space. There is a rent agreement dated 6-1-1958 between the parties in respect of open space only. There was no period provided for the period of lease in the agreement dated 6-1-1958. In para. 3 of the ejectment application it was mentioned that the total rent of the two tenements and the open space was Rs.
82.25 per month and this rent was payable by the 5th of the next succeeding month. In para. 3 of the written statement filed by the respondent, para. 3 of the ejectment application was admitted except for the allegation that the rent was payable by the 5th day of the next succeeding month. It was averred as follows :- "The practice was for collection of the rent by the landlord through their "so-called" trustee at the latter's convenience for a few months every time and there was no period fixed for payment of the rent between the parties. Hence, the applicant's allegations in this respect is false to his own knowledge."
' In para. 5 of the ejectment application it was asserted that rent had not been paid from 1-8-1967 to 30-6-1969 amounting to Rs. 1,891.75. Para. 5 of the ejectment application was replied by the respondent in para. 5 of the written statement which is reproduced here :- "That para. No. 5 of the application is also denied in its entirety, inasmuch as the opponent has never failed, refused or neglected to tender or pay the agreed rent to the landlords, or committed default within the meaning of law in payment of rent at any time ; on the contrary, every time the rent was tendered in accordance with the prevailing practice it was refused by the trustee of the landlords with deliberate design to harass the opponent so as to coerce him to succumb to unreasonable demands. Of the landlords in the matter of withholding and blocking existing amenity of the passage facilities to the godown in possession of the opponent and relinquishing his option for raising construction on the open piece of land in terms of the earlier agreement between the parties. The opponent therefore, was compelled to deposit the rent in the Court according to law for safeguarding his interest, and he had advised of this fact to the lendlords at once. The opponent accordingly has deposited upto date rent in the Court and as such there is no question of any default having been committed by him in any manner."
3. As observed earlier three grounds were taken in the ejectment application namely default, subletting and material alterations. On the question of subletting tenement No. 7 and material alterations in the premises, I find that there is hardly any evidence adduced by the appellant for proving their case on these two issues. I find no illegality in the orders of the Rent Controller and the First Appellate authority in dismissing the ejectment application on these two grounds. In my view the burden of establishing A their case on these two grounds had not been discharged by the appellant and no interference is called for in respect of the concurrent findings or the Rent Controller and the First Appellate Authority on the issues relating to subletting and material alterations. The only question that requires consideration in this second appeal, therefore, is whether the concurrent finding of th two tribunals on default call for interference. In fact the main arguments in this second appeal were addressed by the counsel for the parties on. The question of default only.
4. Reference has already been made to the defence raised on behalf of the respondent/tenant about the default. According to the respondent, there was a practice of the appellant for collection of the rent at landlords' convenience for a few months at a time and there was no period fixed for payment of the rent between the parties. Then in para. 5 of the written statement it was averred that when the rent was tendered in accordance with the prevailing practice it was refused by the trustee of the appellant and in these circumstances respondent was forced to deposit the rent, with the Rent Controller for safeguarding his interest and that upto date rent had been deposited with the Rent Controller. In his examination-in-chief, S. M. Yahya, the rent collector, stated that the respondent had not paid the rent since August, 1967. He further stated that the appellant had never refused to accept the rent. In his cross-examination this witness stated that he used to go every month to receive the rent from the tenants and he issued the receipt at the time of payment. Six receipts were shown to him in his cross-examination and he admitted that these six receipts had been issued by the appellant and the same were brought on record as Exh. P-l/5 to P-1/10. Ghulam Abbas P. W. 2, the managing trustee, stated in his examination-inchief that Yahya (P. W. I) was his rent collector and he was connecting rent of the building on behalf of the trust. He further stated that no letter of appointment had been given to Yahya and that he had personally introduced Yahya to the tenants. It was further stated by him that Yahya was his personal servant and he had also authorised Yahya to collect rent trust of the building. In his cross-examination this witness denied that there was no dispute between the parties prior to 1968. According to the witness, there was a dispute about non-payment of rent and a case was filed previously but he could not say in which Court the previous case was filed. The third witness Moosa was examined in connection with other grounds and not on the issue of default in the payment of rent. As noted earlier, only one witness appeared on behalf of the respondent and he was Ibrahim, a partner of the respondent firm. In his examination-in-chief he has stated that he was the tenant of the premises for the last 40 years and he paid rent on the 5th of every month. According to him the rent collector used to collect rent once after every two or three months and sometimes he used to come after six months and eight months. It was further deposed by him that he was always present on the premises, night and day. He referred to the rent receipts Exh. P-1/5 to P-I/10 and said that these rent receipts were issued to Lim. It was further stated by him that this practice of collecting rent was for all the tenants. He then stated that he had tried to give rent to the appellant but they refused and stated that their rent collector had got the receipt and he would come and collect the rent and when the appellant did not accept the rent this witness deposited the rent in Court. In his cross-examination, this witness stated that he could not say since when he started to deposit the rent in the Court but it was admitted by him that he started depositing rent in Miscellaneous Rent Case No. 20/68. He admitted that he had not given any notice to the appellant that they had refused to accept the rent and as such he was compelled to deposit the same in Court. Notice dated 21-4-1968 (Exh. P- 1/2) is given by the Respondent to the appellant and according to this witness after the rent bad been deposited in Miscellaneous Rent Case this notice was sent to the appellant. This witness knew the correct address of the trustees and stated that he had personally been to their office to pay the rent. He denied that he refused to pay the rent to the rent collector. The witness did not know whether the appellant had filed any D. W. Application against him for recovery, of the rent. It was further stated by him in the cross-examination that entries .Were made but him ,in accounts books about the payment of relit. According to him' the respondent maintained rent account in their account books. It may be observed here that the account books were not produced in evidence.
5. The Rent Controller in his impugned order, dated 20-10-1972 referred to the six rent receipts namely Exh. P/1/5 to P-1/10 and then observed that a careful perusal of these rent receipts shows that the rent for the premises in dispute had been received from 1961 upto July, 1967 in lump sum.
According to the Rent Controller he was inclined to believe the case of the respondent that it was the custom and habit of the appellant to receive rent from the respondent periodically and in lump sum. It was further mentioned by the Rent Controller in his order that the respondent paid rent upto July, 1967 vide Exh. P-1/6 and thereafter started depositing rent in Miscellaneous Rent Case No. 29/68 and that on 17-41968 the respondent for the first time deposited rent with the Rent Controller for eight months i. e. From August, 1966 to February, 1968 in lump sum and thereafter continued to deposit rent in Court every month without fail till the passing of the tentative rent order. , According to Rent Controller therefore the respondent had only defaulted in the payment of rent when he deposited rent for eight months from August, 1967 to February, 1968 in lump sum on 17-4-1968. The Rent Controller took the view that in the circumstances of this case the respondent had not committed wilful default in the payment of rent and it was a fit case to exercise the discretion in favour of the tenant. Reliance, was placed upon P 1, D 1972 Mr.
22. The learned Vth Additional District Judge, Karachi by his order dated 12-2-1973 agreed with the Rent Controller and dismissed the appeal filed by the appellant. According to First Appellate Authority the discretion was properly exercised in favour of the tenant by the Rent Controller, Reliance was also placed on PLD 1973 Kar.
63. Learned counsel for the appellant had argued that on the basis of the evidence adduced by the parties a case of wilful default had been made out. On the other hand it was contended by learned counsel for respondent that although technically the default had been committed in respect of payment of rent for eight months from August, 1967 to February, 1968 as rent for these eight months had been deposited in the Misc. Rent Case by the respondent on 17-4-1968, in the facts of this case, a discretion has been exercised properly by the Rent Controller in favour of the respondent and the concurrent findings, being neither perverse nor arbitrary, this Court may not disturb the concurrent findings in the present second appeal.
6. I may first refer to one contention raised by Mr. Mohsin Tayabally, leal tied counsel for the respondent/tenant, that there is a concurrent finding of the Rent Controller and the First Appellate Authority on the question of default in favour of the tenant, and this being a finding of fact, it is not liable to be disturbed in second appeal by the High Court. Reliance was placed on the following judgments :-
(i) Muhammad Kamil v. Mst. Imtiaz Fatima 36 I A 210.
' In this judgment the Privy Council did not disturb a concurrent finding of fact on the point of existence of a custom.
(ii) Raja of Ramnad v. Mangalam I A 264.
' In this judgment also the Privy Council did not disturb a concurrent finding of the Courts below regarding existence of a custom.
(iii) Masjid Chah Ferozewala v. Talib Husain PLD 1961 Lah.
918.
' In this judgment by a Division Bench of the Lahore High Court it was observed that concurrent findings by the two Courts below on the question of possession and that a party was governed by custom, being findings of fact, could not be challenged in second appeal.
(iv) Australasia Bank v. Muhammad Din PLD 1963 Kar.
105.
' In this judgment by a Division Bench it was observed that a finding on custom of trade was a finding of fact and it could not be disturbed in a second appeal filed under section 100 of the Civil Procedure Code except when the finding is unreasonable and based on no evidence at all.
(v) Abdul Majid v. Khalil Ahmed PLD 1955 FC 38.
' In this judgment the Federal CoUrt observed that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the petition of the case on the merits.
(vi) Nighat Yar Khan v. Hamida Khatoon 1982 CLC 593.
' In this judgment a learned Single Judge of the Lahore High Court observed that the High Court never interferes with a finding of fact though the High Court may differ from the conclusions arrived at on facts by the lower Courts. However, in that case the learned Single Judge thereafter proceeded to examine the evidence and came to the conclusion that on merits also a correct decision had been taken by the Courts below.
' On the other hand Mr. Mansoor-ul-Arfin, learned counsel for the appellant-landlord relied upon the judgment of the Supreme Court in the case of Muhammad Alam v. Noor Muhammad (1) in which it was observed that the question whether there was a default within the preview of section 13 of the Rent Restriction Ordinance, 1959 was a mixed question of law and fact and the High Court could, therefore, displace the concurrent finding of the Courts below on this point.
' There is no doubt a concurrent finding of the. Rent Controller and the First Appellate Authority in the present case to the effect that the respondent is not a defaulter under section 13 of the 1959 Rent Ordinance but this is not a pure question of fact. In view of the decision of the Supreme Court in 1973 SC MR 606, it may be observed that this is a mixed question of law and fact and as such the High Court can in second appeal interfere with the' concurrent finding on this point. I may here very humbly add that the finding on the point whether rent of a particular period has or has not been paid is, however, a finding of fact but the question whether it would amount to a default under section 13 of the 1959 Kent Ordinance for which the tenant is liable to be ejected is a mixed question of law and fact. I may also observe that it is not every finding of fact which is immune from interference in second appeal by the High Court. There can be concurrent findings, which may not be based on any evidence or which might be perverse, in which case the High Courts can and do interfere with such concurrent findings. The preliminary objection of the learned counsel for the respondent that the concurrent finding of the Rent Controller and the First Appellate Authority in this case on the point of default cannot be disturbed is accordingly overruled.
7. Reference may now be made to other judgments relied upon by the two learned counsel in support of their respective contentions on the question of default. Mr. Mansoor-ul-Arfin, learned counsel for the appellant/landlord had argued that, in this case, on the material on record, a case of default had been established by the appellant for which the respondent was liable to be ejected from the premises in question. Reliance was placed on the following reported judgments by the learned counsel for the landlord :- Abdul Rashid v. Saleh Muhammad 1980 SCMR 506.
' In this case plea taken by the tenant on the question of default was that a practice had arisen between the tenant and the landlord that the rent would be paid periodically at intervals of 34 months and in support of this contention the tenant had produced some receipts issued in his favour by the landlord showing that on several occasions rent had been paid for 2 or 3 times at a time. It was further contended on behalf of the tenant that in view of this practice he had not tendered the rent for the 4 months in question in the hope that either the landlord or one of his sons will come and collect the rent and when no one came to collect the rent he sent the rent to the landlord through a money order which was not accepted by the landlord. This contention was repelled by the Supreme Court. Paras: 8, 9, 10 and 11 of this judgment are reproduced here :- '4(8) This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of
(1) 1973 SCMR 606 ' the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whiling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmed Khan 1971 SCMR 598 that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/ respondent for several months at a time, showed that the landlord has condoned the detault and not that be had agreed to vary the terms and conditions of the rules regarding payment of rent.
(9) In Muhammad Hasan & Co. v. Mahmood Ahmad Khan 1975 SCMR 355 where the tenant had taken up same position, namely that a practice has grown up to pay rent in lump sum after certain interval it was observed by this Court inter alia that "in any event such a practice was contrary to section 13 of the West Pakistan Urban Rent Restriction Ordinance, and there for the former could not overrule that law."
(10) In Messrs Tar Muhammad Janoo (I Co. v. Taherali and others (C P No. 1(116 of 1979) where the tenant/petitioner had raised the same contention as in the present case and while dismissing the petition this Court observed as follows :- "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 month. 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 reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his he hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non-payment of rent in time very month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
(11) In view of the above discussion we feel that the petition has no merit whatsoever and the same is, consequently dismissed."
(ii) Syed Warts Ali TirmizI v. Mst. Llaqat Begum 1980 SCMR 601.
' In this case a contention was raised on behalf of the tenant on the question of default that the tenant had - been paying rent at long intervals at the request of landlord's husband to suit his convenience. The Supreme Court found that out of 9 payments, the tenant had twice paid rent of only one month and twice paid rent of two months at a time. On these facts the Supreme Court observed that the tenant's claim regarding landlord having himself desired not to be receive rent at the end of every month or two months stood prima facie belied. It was further observed that if a landlord agrees to accept rent periodically, this can only be the result of a fresh agreement between him and the tenant and if he enters into such an agreement he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month, but the burden of proving such an agreement between the landlord and the tenant is not to be inferred lightly and cannot generally be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals. It was further observed that the tenant had failed to prove that the landlord had agreed to alter the terms of the tenancy with the petitioner/tenant and to receive rent from him at long intervals. The petition filed by the tenant was dismissed by the Supreme Court.
(1) Ali Hassan v. Abdul Qadeer 1980 CLC 912.
In this case a learned Single Judge of this Court repelled the contention raised on behalf of the tenant that in every case where the landlord is shown to have accepted rent in lump sum in the past, discretion not to order ejectment follows as a matter of course. 7 rent receipts produced by the tenant were considered by the High Court and then it was observed that this evidence did not establish an implied agreement between the parties for payment of rent with intervals and the best these receipts indicated was that in the past the landlord generously exonerated the defaults in the payment of rent on the part of the tenant and accepted them on occasions after they remained in arrears for long periods. In these circumstances it was held that the default committed by the tenant could not be wiped off merely because on the previous occasions the landlord abstained from taking legal action.
(iv) Muhammad Hamiduddin v. Feroz Ahmed PLD 1980 Kan 337.
' In this case the landlord had accepted the rent from the tenant on two occasions in lump sum according to the rent receipts produced in evidence. A learned Single Judge of this Court was of the view that the tenant had failed to produce satisfactory evidence to prove that landlord himself accepted the rent periodically as against the clear provision in the agreement that rent was to be paid every month. According to the learned Single Judge if the landlord had accepted rent from the tenant on two occasions as per the receipts, it could be said that it was an act of indulgence on the part of the landlord to condone the default and that the same could not be adopted by the tenant to be a plea to the effect that the landlord has varied the terms of the agreement by his conduct to accept rent periodically.
(v) Textile Trading Co. Ltd. v. Jalilur Rehman 1972 SCMR 384.
' In this case a contention was raised on behalf of the tenant that there was no default in the payment of rent as there was an implied agreement that the rent was to be paid in lump sum and only when the rent collector of the respondent would come and collect them. Repelling this contention, the Supreme Court observed that the implied agreement was never pleaded by the petitioner/tenant in his written statement and that such practice of payment of rents in a lump sum had been denied by the rent collector appearing as a witness on behalf of the landlords and the tenant had failed to prove that the practice was SO consistent as to give rise to an implied agreement.
(vi) Muhammad Hassan Co. v. Mahmood Ahmed Khan 1975 SCMR 355.
' In this case the tenant's contention was that a practice had grown up and he paid rent in a lump sum every 6 months or one year. According to the Supreme Court the tenant failed to prove this practice. It was then observed by the Supreme Court as follows "The learned Single Judge has rightly observed that the implied contract on the basis of the aforesaid practice v4:-..s not pleaded by the petitioner in his written statement, and that in any event such a contract was contrary to the provision of section 13(2) of West Pakistan Urban Rent Restriction Ordinance (VI of t959), and, therefore, the former could not prevail over the latter. The petitioner has failed to controvert this legal position."
(vii) Mst. Magbool Jan v. Begum Nargis Jan 1968 SCMR 111.
In this case it was observed by Supreme Court that in the absence of anything to the contrary the ordinary implication of tenancy would be that the rent would be payable monthly.
(viii) Hafiz Dawood v. Ali Khan 1973 SCMR 598.
In this case it was observed by the Supreme Court that tender of rent of several months at a time in a lump sum by the petitioner/tenant was not a proper tender under the 1969 Rent Restriction Ordinance.
(ix) Rafagat All v. Muhammad Bashir Qureshi PLD 1979 Lah.
444.
' In this judgment Aftab Hussain, J. Of the Lahore High Court, after referring to several reported judgments of the Supreme Court and the High Court and the High Courts in Pakistan observed that acceptance by the landlord of rent at long intervals cannot imply that the landlord had made the tenant believe that the rent was not payable by the tenant every month and that such conduct of the landlord, in the absence of definite proof to the contrary, cannot automatically attract exercise of discretion against eviction.
(x) Muhammad Qasbn v. Mehrban All 1983 SCMR 1205.
' In this case a tenant was ordered to be ejected by the Rent Controller and the District Judge dismissed the appeal filed by the tenant. However, in second appeal, the Lahore High Court set aside the ejectment order. The main ground on which the second appeal was accepted by the High Court was that by producing three receipts showing that the rent was accepted by the landlord periodically after intervals of 2 to 3 months, the tenant bad successfully established that the mode of payment of rent had been changed contrary to the terms of the agreement between them and this alteration in the terms of the agreement could be taken into consideration in favour of the tenant. The learned Single Judge of the Lahore High Court accepting the appeal of the tenant had relied upon 1973 SCMR 606, PLD 1973 Kar. 56, PLD 1972 Kar. 220 and PLD 1965 Lab.
23. The Supreme Court accepting the appeal of the landlord and setting aside the judgment of the Lahore High Court in second appeal, observed that 1973 SCMR 606 and PLD 1973 Kar. 56 did not help the case of the tenant. As regards the other two cases, that is, P L 0 1972 Kar. 220 and PLD 1965 Lah. 23, it was observed by the Supreme Court that the view taken in these two cases that where the landlord repeatedly accepts arrears of rent from the tenant in lump sum periodically the tenant cannot be said to have wilfully defaulted in paying the rent if he failed to pay rent of any particular month in time now stands overruled by a decision of the Supreme Court in the case of Abdul Rashid v. Saleh Muhammad 1980 SCMR 506 in which judgment of tne Supreme Court reliance was placed on Syed Riaz All v. Shabbir Ahmed Khan 1971 SCMR 598 and Muhammad Hassan & Co. v. Mahmuod Ahmed Khan 1975 SCMR 375. It was observed by the Supreme Court that the mere fact that the landlord accepts rent from the tenant periodically does not mean that he does not desire or expect it to be paid in time, as required by the Urban Rent Restriction Ordinance, and that "people are generally hesitant to enter into litigation and do not usually rush to a Court of law on the very first default by the tenant. In most of the cases a landlord, out of decency or out of hesitation to resort to litigation, tries to induce and coax the tenant to pay rent in time and accepts it even when a delayed payment is made. But if there are repeated delays on the part of the tenant there comes a time when the landlord feels that enough is enough and cannot tolerate the delay in payment of rent any longer. If he goes to the Court at that stage, the tenant cannot be allowed to plead his own negligence. However, in view of the above habitual default, the tenant in such cases, is not even entitled to claim exercise of discretion by the Rent Controller in his favour."
(xi) Koonch Amna v. Mst. Zubaida PLD 1983 Kar.
584.
' In this case Saleem Akhtar, J. Of this Court observed that before bringing the case within the purview of section 13 of the 1959 Rent Ordinance for determination whether any default has been committed or not it was 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 in favour of the tenant. In that case reliance was placed on behalf of the tenant on various rent receipts by which the rent was received by the landlord. After considering these rent receipts, the learned Single Judge observed that these receipts did not establish that there was any practice to pay the rent in lump sum. According to Saleem Akhtar, J.. In order to establish a practice it is necessary that one proves 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.
(xii) Vivi. Ahmed v. Muhammad Ashraf PLD 1983 Kar.
196.
' In this case a learned Single Judge of this Court did not accept the contention raised on behalf of the tenant that there was a practice between the parties for payment of rent for several months at a time in lump sum and on account of this practice, ejectment should not have been ordered. The learned Single Judge observed that the appellant can neither plead a practice against the contract between the parties nor against the provisions of law.
8. On the other hand Mr. Mohsin Tayabally, the learned counsel appearing for the respondent/tenant relied upon the following reported judgments :-
(i) Muhammad Alan: v. Noor Muhammad 1973 SCMR 606.
' In this case, after noting that the appellant/tenant was required to pay rent by the 5th of every month as per the rent deed, it was observed by the Supreme Court that if the tenant failed to pay rent within 15 days after expiry of the date fixed in the agreement of tenancy, he became liable to eviction and that no practice to the contrary should whittle down the requirement of law. After making this observation comes the following passage in the judgment of the Supreme Court on which great reliance was placed by the learned counsel for the tenant :- "The Rent Controller could, however, condone the delay if he was satisfied that by agreeing to accept the rent periodically the landlord had made the tenant believe that rent was not to be paid every month in which case it could be said there was no deliberate default and the Court might exercise discretion against directing eviction of the tenant although, in law default is proved on his part."
(ii) Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar.
56.
' In this judgment Mr. Justice Dorab Patel, as he then was, after referring to section 13(2) of the 1959 Rent Restriction Ordinance, observed that the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay the rent and than .Ne discharge of this statutory obligation by the tenant is a condition of his protection and the tenant 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. Thereafter it was observed by him as follows :- "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 a 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 2 or 3 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 such stronger. However, merely because a tenant has on a few occasions being allowed to pay rent "at intervals of time" this cannot possibly entitle him to invoke discretion under section 13. After all if he is allowed to fall into errors this is an indulgence on the landlord's part and the recipient of an indulgence cannot claim any right or equity to its continuance."
(iii) Mehrban All v. Muhammad Qasim PLD 1976 Lab.
1052.
' In this judgment Zakiuddin Pal, J. Observed that if the default has been committed by the tenant deliberately then order of eviction against him may be passed but if deliberate default is not proved then it is discretionary with the Controller to pass such an order and he may or may not pass an ejectment order against the tenant in the given circumstances of the case though default in payment of rent is proved.
(iv) Muhammad Shafi v. Zahir Hussain PLD 1978 Lab.
762.
' In this judgment after referring to 1973 SCMR 6O6 it was observed that the conclusion that can safely be drawn from 1975 SCMR 606 is that although such a practice could not change the terms of tenancy nor the legal liability of the tenant to eviction could be affected by such conduct the same could be utilized for invoking the discretionary power of the Controller to decide against eviction in case the default is not wilful.
(v) Mujiaba Khan v. Muhammad Umer 1980 CLC 1703.
' In this case there was an admission on the part of the landlord that rent bills were not issued to the tenant every month and that rent as a matter of practice was recovered from the tenant in accumulated form. Upon an over all consideration of the evidence adduced by the parties in that case and in the light of the aforesaid admission made by the landlord, it was observed by the learned Single Judge of this Court that it appeared that the landlord had been recovering rent in the accumulated form periodically which must necessarily have created an impression in the mind of the tenant that rent was not to be paid every month. Agreeing with the Courts below, the learned Single Judge held that the default for three months was rightly held not to be deliberate default and the discretion by the First Appellate Authority was, therefore, exercised on sound principles in favour of the tenant. The second appeal filed by the landlord was dismissed.
(vi) Ameer All v. Alima Ahmad PLD 1981 Kar.
150.
In this judgment, Ajmal Mien, J. Of this Court, after discussing various judgments of the Supreme Court and High Courts enunciated several principles about rent restriction law and one such principle stated by the learned Single Judge was that a Rent Controller is not obliged to grant an application for ejectment if from the facts and circumstances of the case it appears that there was no deliberate default on the part of the tenant.
(vii) Najmuddin v. Zamir Ahmed PLD 1982 Kar.
188.
' In this case, Naimuddin, J. Of this Court held that the Rent Controller was not bound to order eviction in every case where default in payment of rent had been proved but he has ample discretion to be exercised after taking into consideration all factors. In that case the landlord had told his tenant of his inability to receive the rent due to his being busy in the preparation of the accounts. It was held by Naimuddin, J. That the Rent Controller had rightly refused to order ejectment in these circumstances.
(viii) Muhammad Siddigue v. Abdur Rashid 1982 CLC 217.
' In this case the two Courts below concurrently found that the default committed by the respondent/tenant was not wilful and the deliberate and accordingly exercised the discretion in favour of the tenant under section 13(2) (i) of the 1959 Rent Restriction Ordinance by refusing to pass the order of ejectment. The landlord challenged the two orders before the High Court in second appeal. Saeeduz Zeman Siddiqui, J. After considering the rent receipts produced in evidence, observed that the said receipts had shown the right from the inception of the tenancy there was no settled practice followed by the landlord for recovery of the rent and that rent was recovered on all occasions in a lump sum for several months at .a time. According to the learned Single Judge on the basis of the documentary evidence in the case it could not be said that the discretion exercised by the Courts below refusing the order of ejectment on the ground that the consistent practice of the landlord followed in the case was to recover the rent for several months at a time and therefore the default in payment of rent six months was not deliberate and wilful, was perverse or arbitrary or contrary to the guidelines laid down by the superior Courts of this country for exercise of discretion in such cases.
(ix) Jalilur Rehman v. Jauher Trading Co. 1982 CLC 219.
' It was held by a learned Single Judge of this Court that under the 1959 Rent Restriction Ordinance, the Rent Controller was vested with discretion to condone the default if the same was found to be not deliberate depending on circumstances of each case. In that case, according to the learned Single Judge, wilful default had not been proved and the landlord had declined to receive rent from the tenant being interested in making ground for ejectment of the tenants. According to the learned Single Judge, in these circumstances, the lower Court was perfectly justified in holding the tenants not to be wilful defaulters.
8. By analysis of the judicial pronouncements on the subject, certain general principles can be enunciated. Firstly there is no absolute rule that in case of non-payment of rent by the tenant within the period provided by section 13(2)(i) of the 1959 Rent Restriction Ordinance, eviction has to follow automatically. In suet cases, discretion vests with the Rent Control Autho-rities under the 1959 Rent Restriction Ordinance to pass an order of eviction or they may decline to order ejectment. However, such discretion is not to be exercised arbitrarily but bas to be exercised on sound judicial principles. According to the 1959 Rent Restriction Ordinance, a tenant is required to pay rent within fifteen days of the time fixed in the tenancy agreement or lease-deed, in case such an agreement or lease-deed exists and is in operation during the relevant period. In the absence of such an agreement or deed, the tenant is required to pay rent within 60 days from the period for which the rent is payable. In case rent is not paid within the period provided by section 13(2) (i) of the 1959 Ordinance, the burden of bringing on record evidence which would make out a case for exercise of discretion in his favour is on the tenant. It is necessary for the tenant to bring on record either through cross-examination of the landlord and/or his witnesses or through his own witnesses such evidence on record on the basis of which he could establish that the default was neither wilful nor deliberate and ask for the discretion to be exercised in his favour. In case the only evidence on record is that rent has not been paid within the time provided by law and no other evidence in favour of the tenant is on record, an ejectment order will follow as a matter of course.
' Another principle which is now well-established, in view of the various pronouncement of the Supreme Court, is that the tenant cannot plead a practice about payment of rent in lump sum which is contrary to the provisions of the Rent Restriction Ordinance and ask for discretion to be exercised in his favour merely on the basis of such practice. What this principle lays down is that as the law requires the payment of rent to be made within a particular time, a practice cannot be pleaded which is contrary to such' requirement as the parties cannot contract themselves out of the provisions of the law. However, in my humble view, the tenant is not debarred from 'bringing on record evidence to the effect that previously rent was being paid by him or was being collected by the landlord in lump sum for several months at a time and although such evidence by itself would not be sufficient to make out a case for the exercise of discretion in favour of the tenant, this evidence in conjunction with other evidence adduced on behalf of the tenant might make out a case for exercise of discretion in favour of the tenant. For instance, the evidence might show that it was the desire of the landlord himself that the rent should be paid in lump sum for several months at a time or the evidence may establish that the consistent practice was that the rent was collected for his own convenience, by the landlord himself or his rent collector, and that the landlord or the rent collector came, say after every three months or six months, and collected the rent from the tenant. In such situations the presumption would be that the landlord had made the tenant believe that the rent was not payable by him every month. I may here refer to paragraphs 15 and 16 of the judgment of Aftab Hussain, J. In the case of Rifaqat Ali v. Muhammad Bashir Qureshi
(I) where the learned Single Judge of the Lahore High Court after referring to the various judgments of the superior Courts of this country made the following learned observations :- "15. The two propositions-the first of implied agreement contrary t. Express written agreement and secondly, exercise of discretion-should not be confounded. They are clearly distinguishable.
Wherever the question has been considered by the Supreme Court or by the High Court of Sind and Baluchistan, it has been pointed out that no such variation by conduct "or even by oral agreement can be proved to displace, and or to vary the terms and condition of tenancy of written agreement in view of sections 91 and 92 of the Evidence Act. It has also been laid down in the Karachi case that if the landlord accept rent after the expiry of a long period in a lump sum that did not stop him from applying for ejectment on ground of default, if the default is brought home to the tenant on account of his failure to pay rent within 15 days from the day of payment as stipulated in the argeement.
15. The only proposition favourable to the tenant .Which can be found out in the case of Muhammad Aslam v. Nur Muhammad is that if such practice is proved, discretion might be exercised by the Rent Controller against evidence of the tenant. But this proposition is qualified by the condition that such discretion can be exercised only if the Rent Controller is satisfied 'that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. If the Rent Controller is not satisfied about this condition, the matter would be governed by the case of Syed Riaz Ali v. Shabbir Ahmed Khan where it was held that discretion should be exercised judicially and not in an arbitrary manner and default of ten months should not be condoned on any hypothesis. It will not, therefore, be correct to say that if the landlord accepts rent for long periods the discretion against eviction should be automatically exercised in favour of the tenant. From such conduct it cannot be implied that the landlord had made the tenant believe that the rent was not payable by him every month. There may be several reasons why the landlord had accepted the rent after the tenant had made the default. As held in the Karachi case, the acceptance by the landlord of rent at long intervals does not necessarily lead to the conclusion of such an agreement. His failure to collect rent regularly may be du to pre-occupation with his own affairs, fear of the expenses and hazard of litigation, a desire to accommodate his tenant etc. In the case of Syed Riaz All v. Shabbir Ahmed Khan it was pointed out that the receipt of the rent for several months at a time may be a proof of condonation of default by the landlord and not of any consent t vary the terms and conditions of lease regarding payment of rent. {{FOOT NOTE}}
(1) PLD 1979 Lah. 444 {{FOOT NOTE}} ' In view of these diverse possibilities, unless there be a definite proof to that effect it cannot be inferred from such conduct of the landlord that he had made the tenant believe that the rent was not payable monthly by him. There must be specific proof on the record in order to arrive at such a conclusion before the Rent Controller exercises his discretion in favour of the tenant. In other words, there must b material on the record to prove that the default was not willful o deliberate."
' I am in complete agreement with the aforesaid enunciation of the principles by Aftab Hussain, J. If the only evidence on record is that previously the tenant has paid or the landlord has collected rent for long periods, such evidence would not standing alone be sufficient for exercise of discretion in favour of the tenant. Apart from such evidence, there must be Other evidence from which it could be implied that the landlord had made the tenant believe that the rent was not payable by him every month in which case the default would not be wilful or deliberate. It is in the light of the above principles that it has to be seen whether, on the basis of the evidence on record in the instant case, the exercise of discretion-by the rent control authorities in favour of the tenant was justifiable in law.
9. As observed earlier, in this case the Rent Controller believed the tenant's case that it was the custom and habit of the landlord to receive rent from the tenant periodically and in lump sum. For reaching this finding, the Rent Controller relied upon six rent receipts namely Exh. P-1/5 to P-1/10.
According to the Rent Controller these six receipts show that the rent had been received from 1961 upto July, 1967 in lump sum. An examination of the receipts does not at all indicate that there was any practice or custom between the parties whereunder the rent was being received by the landlord periodically in lump sum. As noted above, the premises in dispute comprise tenements Nos. 6 and 7 and some open space, and in respect of the open space only there was an agreement of tenancy dated 1950. The respondent has been tenant of the premises since about 194 P. Out of the six receipts produced in evidence, three (Exh. P-1/7, P-1/9 and P-1/10) relate to the same period i. e. From January to October, 1961, as for each tenement a separate receipt has been issued. Exh. P-1/8 is a joint receipt for all the three tenements for November, 1961 to April, 1962. Exh.
P-1/5 is a joint receipt for August, 1966 to March, 1967 and Exh. P-1/6 for April, 1967 to July, 1967. The periods covered by these six receipts are from January, 1961 to April 1962 and from August, 1966 to July, 1967. No receipts for the intervening period i. e. From May, 1962 to July, 1966 were produced. In fact, apart from the aforesaid 6 receipts, no other receipts were produced. The Rent Controller was, therefore, wrong in reading these receipts as if these covered the entire period from 1961 to July.
1967. Then, in a tenancy extending over 20 years, by production of only six receipts which covered only four periods and that too of different lengths i. e. From January to October, 1961 (10 months) from November, 1961 to April, 1962 (6 months), from August, 1966 to March, 1967 (8 months) and from April, 1967 to July, 1967 (4 months), the respondent had not established that there was a practice or custom of paying/receiving rent in lump sum for several months at a time.
Even otherwise by merely producing a few receipts to the effect that previously on 4 occasions rent was accepted in lump sum for several months on each occasion, a case for exercise of discretion in his favour had not been made out by the respondent/tenant. From the aforesaid six receipts a presumption could not be raised that the appellant had made the respondent believe that the rent was not payable by him every month.
' It may also be observed here that in his evidence, Ibrahim (partner of Respondent firm) had stated that the respondent firm maintained rent account in their account books. It is an admitted position that account books were not produced by the respondent. It had been argued by the learned counsel for the respondent that the appellant/landlord should have produced their rent book which would have shown how the rent was paid or collected. Contention of learned counsel that the burden of proof in this regard was on the landlord cannot be accepted. It was the defence of the tenant that rent!, was being collected in lump sum periodically by the landlord and burden of proving this assertion lay on the tenant, which was not discharged in this case by the tenant.
10. When the evidence of Ibrahim, partner of respondent firm, is seen, it is found that contradictory stands have been taken on behalf of the respondent. He has stated in his evidence as follows "1 am the tenant of the premises in dispute. I am the tenant since 40 years. I pay rent on the 5th of every month. There was no written agreement to this effect. Rent Collector used to collect rent once after every two or three months. Some time he used to come after six months or eight months. I am always present on the premises night and day. Exh. P-1/5 to P-1/10 are the rent receipts issued to me. This practice of collecting rent is for all the tenants. I have tried to give rent to the applicant but they refused and said our rent collector has got the receipt and he will come and collect the rent.
When applicant did not accept the rent, I deposited the same in Court...."
' Different positions have been taken by the witness of the respondent. Firstly it was deposed that the respondent paid rent on 5th of every month. Secondly evidence is given about the so-called practice of collection of rent in lump sum. Then it was stated that the witness had tried to give rent to the landlord but they refused and said our rent collector has got the receipt and he will come and collect the rent". If rent was paid on 5th of every month, the defence based on practice of collection of rent in lump sum loses credibility. And if the rent was being collected in lump sum for several months at a time by the landlords' rent collector, where was the occasion for going to the office of the appellant and tendering rent. If rent was at all tendered and was refused, the tenant should not have waited for nearly nine months and then deposited the rent in Court in April 1968, rent being due since August, .1967.
11. It was contended on behalf of the respondent/tenant that there was no misreading or non- consideration of evidence by the lower Tribunals and as such the High Court should not interfere in the concurrent finding. In this case there has been misreading of the evidence, specially the rent receipts. Then there is error apparent on the face of the orders of the Tribunals. On the basis of the so-called practice of collection of rent in lump sum, without giving a finding that the practice had made the tenant believe that the rent was not payable monthly, the Rent Controller erred in exercising discretion in favour of the tenant. And in this case even the practice was not proved, as has been seen earlier.
12. Mr. Mohsin Tayabally, learned counsel for the respondent referred to the following factors/reasons in support of his contention that this Court may not upset the concurrent decision of the two Tribunals below where discretion has been exercised in favour of the respondent/tenant :-
(i) It was mentioned in the ejectment application that there was default of 23 months, whereas in fact there was default of 8 months only.
(ii) No mention was made in the ejectment application that rent had been deposited in Court.
Neither of these two factors tills the scales in favour of the tenant in the facts and circumstances of this case.
(iii) Ejectment case was filed on 15-7-1969, whereas the default is for the period from August, 1967.
Emphasis was on the delay in filing the ejectment application. In this case rent was deposited in Court by the tenant after he had defaulted in the payment of rent for nearly 8 months. Evidence does not show that the default was waived by the landlord. Delay in filing the ejectment application in the facts of this case did not wipe out the default and entitled the tenant for the discretion to be exercised in his favour.
(iv) Appellant is a Trust. In my view the fact that the landlord is a Trust did not raise a presumption that in case of default in the payment of rent for a few months, the landlord would not be inclined to file an ejectment case and, therefore, discretion could be exercised in favour of the tenant.
(v) Reliance was placed on Exh. P-2/7 which is the notice dated 27-6-1968 given on behalf of the appellant to the Respondent. It was argued that in this notice no demand for rent %vas made. In para. 1 of this notice, reference is made to the earlier letter of the Advocate of the appellant dated 11-5-1968 contents of which letter were reiterated in the notice dated 27-6-1968. These two documents are, therefore, to be read together and in the earlier letter dated 11.5-1968 reference has clearly been made about the default committed by the Respondent. '
13. In this case there is default in the payment of rent, as rent for 8 months i. e. From August 1967 to March, 1968 was deposited in Court on 17-4-1968 when the same should have been paid within the time specified in section 13(2)(i) of the Urban Rent Restriction Ordinance, 1969. No case was made out by the respondent for the exercise of discretion in his fivour. As a result II Appeal No. 146 is allowed, order dated 20-10-1972 of the Rent Controller dismissing Rent Case No. 1383/1969 and order, dated 12-2-1973 of the learned V Additional District Judge dismissing Rent Appeal No. 547/72 are set aside and in Rent Case No. 1383/1969 ejectment of the respondent I ordered. The respondent is, however, allowed time till 30-4-1984 to vacate the premises.
' There will be no order as to costs.