' This first appeal under section 15 of the Baluchistan Urban Rent Restriction Ordinance (Ordinance VI of 1959) is filed by the tenant who has been directed to hand over the possession of the shop situated on Toghi Road, Quetta belonging to the respondent.
2. The appeal arises in the following circumstances :- ' An application was filed by the respondent against the appellant Mehmood Ahmed son of late Sher Muhummad in the Court of the Civil Judge 1st Class-cum-Controller on 2nd September, 1982 for his eviction from Shop No, 6-7/78 (33) 747 situate on Toghing Road, Quetta (the boundries whereof are given in the eviction application) on the ground of default in payment of rent for the month of May, 1982 to August, 1982 (for a period of four months) and the averments in that behalf are that the tenant (present appellant) was in occupation of the shop on a monthly rent of Rs, 120 payable on the first date of each calendar month after expiry of the tenancy month for which the rent had fallen due and it was alleged that the tenant was generally a bad paymaster towards payment of the monthly rent and in spite of repeated demands and warnings failed to pay monthly rent regularly. The rent upto 30th April, 1982 was paid for which a regular receipt was issued but no rent for four months (from 1st May, 1982 to 31st August, 1982) was paid or tendered. In the written statement the appellant/tenant did not deny the tenancy nor the rate of rent but pleaded that "the applicant used to collect rent at his convenience and generally rent for two to four months was collected by him and the allegation that he was a bad paymaster was denied and it was asserted that he never made default in the payment of rent, and as was the practice the applicant (landlord) used to collect rent for two to four months in lump sum. It was also pleaded that on several occasions the rent was offered but it was refused. The rent through money order was sent but it was refused, therefore the rent in Court was deposited.
3. The Rent Controller framed the following issues :
(1) Whether the respondent has failed to pay or tender the rent w,e,f, 1st May, 1982 to 31st August, 1982 ?
(2) Relief ?
4. The respondent/landlord examined himself as witness and tendered 10 receipts which showed that previously the monthly rent used to be paid each month but later on two occasions the rent for four months was received in lump sum. The last receipt showed to payment of the rent upto 30th April, 1982 and thereafter no rent was paid to the landlord and it was found that the rent for May to August, 1982 was deposited in Court after the eviction application was filed in Court on 12th September, 1982. The learned Controller after examining the evidence tendered by the appellant/tenant came to the conclusion that the plea that the applicant/landlord used to collect accumulated rent was not proved and it was held that the practice of the landlord of taking "rent accumulated" does not override the provisions of the Ordinance and the tenant had committed default and had rendered himself liable to eviction and since he had failed to prove circumstances beyond his control the eviction order was passed and he was directed to handover the vacant possession of the shop in question to the landlord upto 16th September, 1983. The eviction order was passed on 16th August, 1983. Against this order this appeal has been filed.
5. The learned counsel for the appellant has urge grounds :-
(a) that only a default of two months, and not for claimed by the landlord, has been proved ;
(b) that the Controller has not given any reason to statement of landlord and disbelieved the tenant ; d the following four months as believe the sole witnesses of the
(b) that the receipts produced proved that the landlord used to collect the rent in lump sum ; and
(c) the discretion in favour of the tenant/appellant should have been exercised by the Controller which has not been done.
6. The learned counsel for the appellant has argued that the rent was tendered by the appellant has stated that the rent was offered but it was refused. He has also relied on the receipts submitted by the appellant before the Rent Controller and according to him this is sufficient to prove a practice changing the terms and conditions of tenancy that instead of monthly payment the landlord had impliedly agreed to accept lump sum payment. Therefore according to the learned counsel, the appellant could not be evicted on ground of default of rent. The argument is without force. If the appellant tendered the rent in time the month of June as stated by the witness Faizullah and it was refused, the appellant could send the rent through money order or tender in Court and this negates the alleged practice. If there was any arrangement/agreement not to pay rent in time on monthly basis there was no need for the appellant to tender the rent. The pleas taken by the appellant in this behalf are self-contradictory. The landlord has alleged in the eviction application that the tenant/appellant in spite of demand and warnings failed to pay monthly rent regularly and the last two receipts which established that the rent for four months was accepted by him as it was then tendered for which the tenant was asked not to do so in future thus the assertion stands proved. The receipts (ten in number) produced by the landlord respondent go to show that the rent was previously paid in time. In the face of this statement of fact if the landlord had accepted the rent in lump sum on only two occasions when it was tendered, it cannot be asserted with any legal justification that he has acquiesced in the practice of payment of rent in lump sum. Mere fact that the respondent on two occasions accepted even the delayed payment o rent and condoned the default only shows indulgence on his part but it did not give rise to any practice which modified the contractual or statutory obligation of the appellant/tenant or that the landlord has consented to the mode of payment. The tenant/appellant has definitely failed to prove that the practice was so consistent as to give rise to an implied agreement.
7. In Muhammad All v. Ziaul Islam (1) it was observed by Dorab Patel, J. (as his Lordship then was) that even if a landlord receives rent at intervals, this does not necessarily lead to the conclusion that it was in persuance of an agreement not to receive rent at the end of every month and it has been laid down that if the landlord accepts rent after the expiry of a long period in a lump sum that did not estop him from applying for ejectment on the ground of default if the default can be brought home to the tenant on account of his failure to make payment. It was further ruled out that it was the duty of the tenant to pay or tender rent to the landlord even if it was not demanded and the recipient of an indulgence cannot claim any right or equity to its continuance. This Karachi case was referred with approval in Rifaqat Ali's case (2) and it was held by Aftab Hussain, J that it would not be correct to say that if the landlord accepts rent for long periods the discretion should be automatically exercises in favour of the tenant. From such conduct it cannot be implied that the landlord has made the tenant believe that the rent was not payable by him every month. There may be several reasons why the landlord has accepted the rent after the tenant had made default. As held in Karachi case the acceptance of the landlord of rent at intervals does not necessarily lead to the conclusions of such an agreement one of such reasons may be to accommodate the tenant, or to avoid litigation.
In view of these possibilities, unless there be a definite proof to that effect it cannot be inferred from such conduct of landlord that he had made the tenant believe that the rent was not payable by him. There c must be specific proof on record in order to arrive at such a conclusion before the Controller exercises his discretion in favour of the tenant. In other words there must be material on the record of the case to prove that default was not wilful or deliberate.
(1) PLD 1973 Kar. 56 (2) PLD 1979 Lah. 444 ' To the same strain is the judgment of Lahore High Court reported in Muhammad Bashir v.
Muhammad Iqbal (1).
' The Karachi case (1973 Kar. 56) was also referred with approval by Zafar Hussain Mirza, J. (as his Lordship then was) in All Hassan's case (2) and it was observed at page 914 : "The best that the aforesaid evidence indicates that in the past the appellant (landlord) generously exonerated the default in the payment of rent on the part of the respondent (tenant) and accepted them on occasions after they remained in arrears for long period. Such being the case the default committed by the respondent (in that case) which was made the foundation of eviction proceedings, cannot be wiped out, merely on the previous occasions the appellant abstained from resorting to legal action."
In my humble opinion the position of the tenant is that of a debtor who has to find out his creditor and the tenant is never absolved from his liability to pay rent regularly.
8. The proposition of law on the point was set at rest by the Supreme Court in Abdul Rashid's case (3). At page 508 of the report the weighty observations of Aslam Riaz Hussain, J, who delivered the judgment on behalf of the Bench, are found. His Lordship, reiterating the earlier decision of the Supreme Court on the point observed : "With regard to the question of default in the payment of rent, as already mentioned, the plea taken up by the petitioner/tenant is that a practice had arisen between him and the landlord that the rent would be paid periodically at intervals of 3 or 4 months. In support of this contention he produced some receipts issued in his favour by the landlord or his sons showing that on several occasions rent had been paid for 2 or 3 months at a time. It was contended further on his behalf 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 to collect it and when no one came to collect it, he sent the rent to the landlord through a money order which was not accepted by him."
"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 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 whitling 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 All v. Shabbir Ahmed Khan 1971 SCMR 598 that "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,
(1) 1980 CLC 1077 (2) 1980 CLC 912
(3) 1980 SCMR 506 ' showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent.
"In Muhammad Hasan & Co. v. Mahmood Ahmed 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 intervals 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 therefore the former could not overrule the law."
"In Messrs Tar Muhammad Janoo & Co. v. Taherali and others (Civil Petition No, K-16 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 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 every 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."
' The authorities quoted above of the High Courts and the Supreme Court are sufficient answer to the argument of the counsel for the appellant in this appeal. It is hardly necessary to point out that the law enunciated by the Supreme Court is binding on all Courts in Pakistan in view of the provisions of the Constitution.
9. The two propositions-the first of implied agreement contrary to the agreement for payment of monthly rent and secondly, exercise of discretion in favour of the tenant should not be confounded.
They are clearly distinguishable.
' Clause (1) of subsection (2) of section 13 of the Ordinance (Ordinance VI of 1959) defines default. It provides that if there be an agreement and time for payment fixed therein the default should accrue after expiry of 15 days from the time fixed. In the absence of an agreement the default will accrue after 60 days from the period for which the rent is payable and the tenant shall be in default immediately after the expiry of 60 days from the period for which the rent is payable.
Section 23 of the Contract Act does not permit any agreement to defeat the provisions of a Statute and declares such a contract as void.
10. The learned counsel for the appellant has candidly admitted before me that except Faizullah and the attorney of the tenant/appellant, the evidence produced by the appellant does not support the case of the appellant, and has laid stress that these two witnesses should have been believed. In order to appreciate the submission I have carefully examined the evidence and found that the witness Faizullah by saying that in June, 1982 the rent was tendered in his presence to the landlord belied the tenant's contention in para. 2 of the written statement as by that time only rent for May, 1982 was due and payable. If there was such a practice as alleged by the tenant, there was no need to tender the rent on the expiry of one month alone, the tenant would have waited. If the statement of Faizullah is true, then it would have put the tenant on guard and on the refusal of the landlord the rent could have easily been-sent through money order or tendered in Court to avoid the eviction proceedings.
11. In view of these facts it can be safely concluded that the pleas of the tenant/appellant are anything but honest versions of the facts and I am satisfied that the evidence produced by the tenant has been rightly E disbelieved. The learned Controller has correctly appreciated the evidence and his findings in that behalf are unassailable and must be upheld. The default in payment of rent by the tenant being wilful.
12. There remains the last submission of the learned counsel that in this particular case discretion in favour of the appellant/tenant should have been exercised but the submission lost sight that discretion, in favour of a tenant, is exercised only in circumstances where it is shown that the default in payment of rent was occasioned due to unavoidable causes. Nothing is shown to indicate that causes, beyond the control of the tenant, existed in the present case. In fact no such plea was even taken. This view finds support from a judgment of this Court in F.A.O. No, 11 of 1979 (Mst. Shami Bai D/o Nazir Begum (Prostitute) v. Aymiri Khan son of Sultan Khan decided on 2nd June, 1980. Petition for Special Leave to Appeal was preferred before the Supreme Court C.P.S.L.A.
No, 13 of 1980) but the leave was refused vide orders, dated 3rd June, 1981. Thus, the dicta laid down in Mst. Shami Bai's case stands approved by the Supreme Court.
For the above reasons the appeal has no merit and is dismissed with no order as to costs.
13. These are my reasons for my order, dated 24th December, 1983 whereby the appeal was dismissed by a short order.