1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the landlord to examine whether a tenant continuing in possession of the demised premises after the expiry of the written agreement of tenancy, was not controlled strict sensu by the terms of the agreement particularly with regard to the payment of rent by a particular date and whether Controller's discretion not to eject a tenant on his being found in default has to be based on recognized equitable principles.
2. ' The appellant had let out the p, emises, a shop in the commercial area of PECH Society, on a monthly rent of Rs, 175, by a written agreement, dated 1-9-1968 valid for 11 months. The rent was payable in dance by the 5th of each calendar month. After the expiry of the written agreement the tenant continued in possession of the premises. The appellant instituted an application dated the 1st of March, 1971, seeking eviction of the respondent alleging as follows- "That the opponent has committed default in the payment of monthly rent inasmuch as he has failed and neglected to pay the due and lawful rent from the month of April, 1970 to February, 1971, amounting to Rs, 1,925 (Rupees., one thousand nine hundred and twenty-five only) to the applicant in spite of 'her repeated demand in this behalf, hence this application for his eviction."
3. ' In resisting the claim the respondent took up the plea that "the landlord intentionally delayed the receipt of layrnent of rent from time to time although the opponent requested him verball as well as in writing to desist from such tactics which were presumably steps towards making out grounds for ejectment in view of the circumstances that the commercial value of the shop had increased."
4. The respondent-tenant himself pleaded (para. 2 of the written-statement) that "the respondent made payment of Rs, 350, being rent for October and November, 1969, vide receipt No, 3, dated 19- 4-1970 and again of Rs, 700, being rent for January to March, 1970, vide receipt No, 9, dated 1-8- 1970. Again a sum of Rs, 1,050 was paid through Cheque, No, CBR 803332, dated 20-8-1970 on United Bank Limited, Tariq Road, being rent for April to September, 1970 for this the applicant issued no receipt although it was demanded from him time and again. The opponent, therefore, sent him a letter registered A/D on 19th October, 1970, but the same was not replied. The opponent again on 27-3-71 sent a sum of Rs, 700, through Money Order No, 3879, being rent for October, 1970 to March, 1971, but the same was refuse."
5. ' Issues were framed and the parties went to trial.
6. ' The Rent Controller recorded the following finding on the question of default- "In the present case the applicant has failed to prove that there was any default made by the opponent in payment of rent by any material evidence. The conduct of the applicant shows that she has been accepting accumulated rent from the opponent sometimes in cash and sometime through cheques, and therefore there is no wilful or deliberate default committed by the opponent in payment of rent to the applicant. Hence the opponent cannot be called persistent defaulter.
7. Since the applicant has failed to substantiate her allegations of default committed by opponent by any material evidence, I, therefore, come to the conclusion that opponent has not made any wilful or deliberate default in payment of rent; nor he is persistent defaulter as allowed by the applicant.
8. 1, therefore, answer the issue in negative."
9. ' The Rent Controller refused to order ejectment.
10. ' An appeal was preferred to the Additional District Judge. The first appellate Court held as follows:- "In view of this position according to the version of the respondent himself on the very face of it there is no doubt that the respondent admittedly committed default in payment of monthly rent which he was required to pay every month due and payable at least before 15th of each calendar month which he has failed to do so. There is mention by the respondent in his written statement that it was agreed between the parties in writing or otherwise that he shall pay accumulated rent in lump sum of certain months together much less that he had proved on evidence that there was any such practice between the parties. The mere fact that on certain occasions the appellant/landlord accepted accumulated rent does neither alter the legal position nor the terms and conditions of the agreement are altered thereby automatically. In this view of the matter I find that the learned Rent Controller divulged in his discussion of evidence on record at length for some reasons disregarding these two main points in respect of default admittedly committed by the respondent. 1, therefore, find that the findings of the learned Rent Controller as alleged default are erroneous and in my view the impugned order cannot be sustained. According to the evidence on record and the version of the respondent himself admittedly has committed default without any justification."
11. ' The appeal was allowed. The tenant was given two months' time to give vacant possession of the premises to the landlord.
12. ' A second appeal was then filed by the tenant which came up for disposal before a learned Judge of that Court. After reviewing at great length the fact of the case of the parties and the law points involved in the case, the learned Judge in the High Court recorded the following three findings all relating to questions of law- "(1) That in view of the above discussion it is evident that the learned Rent Controller did not exercise discretion in favour of the appellant arbitrarily or capriciously or unreasonably, and, therefore, the learned Ist appellate Court was not justified in interfering with the discretion exercised by the learned Rent Controller."
(ii) In my view as in the instant case the learned Ist Appellate Court was not justified in interfering with the discretion exercised by the learned Rent Controller, this Court is competent in the above second appeal to rectify the above error committed by the Ist Appellate Court.
13. 'WO I may observe that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of the Ordinance, but if a landlord by his representation/conduct/omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance is not to be adhered to, and, thereafter the landlord wishes to enforce the above provision strictly, in that event, in my opinion the landlord should first put the tenant to notice by Serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of the above provision or in any case the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein. Any other view will result in miscarriage of justice. It is a matter of common knowledge that during last few years in Karachi occupancy value inter alia of commercial premises and their rental have been enormously increased, which has generated desire on the part of some landlords to cause eviction of their tenants and in order to achieve the said object they deliberately cause the commission of default in payment of rent by the tenants."
14. ' On these findings the High Court allowed the second appeal of the tenant, restored the order of the Rent. Controller and dismissed the ejectment application.
15. ' The learned counsel for the appellant contended that the conclusion of the High Court that the Rent Controller had exercised his discretion in protecting the tenant against the claim of the landlord was patently erroneous. In fact the Rent Controller had recorded the finding that keeping in view the understanding and the practice of the landlord and the tenant, the tenant was not at all a defaulter (wilful) and was not liable to eviction for default. On such a finding having been recorded, there was no question of the discretionary powers being exercised by that authority for condoning a failure or an omission when none had, in fact, on the finding taken place. Similarly it is contended that the learned Judge was in error in taking the first appellate Court's order to be an interference with the exercise of a discretionary power. In fact it was a reversal of the finding of the Rent Controller and its substitution by another finding namely that the tenant had to be adjudged on any interpretation of the law a defaulter in the payment of rent for at least three months and such default was not condonable and was unmitigated. The first appellate Court, therefore, only gave effect to its own legal finding of a default having been committed by the tenant. As regards the third finding, the contention of the learned counsel for the petitioner is that the High Court has after noting what it considered to be a hardship in the statute, proceeded to rectify or remedy it by superimposing its own provision of two notices to the tenant calling upon him to rectify his conduct and be have properly. Such a superimposition over a statute on the ground of policy by a Court of law was wholly unjustified. As regards the question of default it is stated that whether it be the law laid down inn Muhammad Yousaf's case , which is applied or that laid down in Nal Din's case , the tenant admittedly was in default in the payment of rent for at least three months of October, November and December, 1970, and was not entitled to any equitable relief whatsoever, as no reason for such default had been brought on record. The so-called landlord's practice of realizing rent at intervals could not condone the default as held in Muhammad Alimullah v. Ziaul Islam and approved in the case of Syed,'Waris Ali Tirmizi v. Mst. Liaqat Begum .
16. ' The learned counsel for the respondent, on the other hand, contended that the case of the appellant was somewhat different in the ejectment application and the sort of claim made and the way it was made, disentitled her to any equitable relief even if default was found. For example, it was not a case of default or delay in the payment of rent that was put forward. It was a categorical case of non-payment of rent from April, 1970, onwards till the institution of the ejectment application. The Rent Controller as well the two appellate authorities dealing with the matter came to the conclusion that rent up to September was paid when the application for eviction was instituted and the rent after October was tendered before the tenant received notice of the eviction' application filed by the landlord. In such a background the default of one or two months1 2 3 4 even if established should have been and was rightly condoned because the claim of the landlord was not honest and straightforward and the conduct of the tenant, on the other hand, which had support of the practice of the parties was very clear and straightforward.
17. ' The ejectment application was instituted on 1-3-71. The appellant alleged non-payment, .Default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admitted payment of rent from April, 1970 to September, 1970, by cheque dated 20-8-1970 and next by Money Order on 27-3-1971 for the rent of October, 1970 to March, 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousaf's case, the tenant was clearly in default for April and May, 1970 and October to December, 1970. This was so in spite of his having received a notice (Exh. P. 10) dated 14-9-70 calling upon him to pay the arrears and the current tent directly to the landlady. The alleged practice of the attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice (Exh.
18. P. 10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance protects the tenants against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition c precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice.
19. ' We find that the respondent was clearly in default in paying or tendering the rents for April and May, 1970 and from October, 1970 to December, 1910. There was no plausible explanation for such default. He was, therefore, liable to ejectment. This appeal is allowed with costs and the respondent is directed to hand over vacant possession of the premises to the appellant. PLD 1980 SC 298 1980 SCM R 767 PLD 1973 Kan 56 1980 SCM R 601
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