1. ' The respondent filed an application for ejectment against the appellant on the ground of non- payment of rent, from May, 1968 to December, 1969. The appellant pleaded that the rent was not payable every month and it was paid whenever the rent collector used to collect the rent from the appellant and other tenants after lapse of six months or so. It was further pleaded that as the rent collector did not come to collect the rent from the appellant, he remitted it by cheque dated 17-3- 1970 which was refused on the ground that the ejectment case has been filed. The learned Controller by his order dated 31-10-1974 dismissed the ejectment application against which the respondent filed appeal which was allowed by the learned 1st Appellate Court on 31-7-1976 and the case was remanded. However, the learned Controller by order dated 17-4-1977 again dismissed the application. The learned Controller held that there as an established practice of accepting rent periodically as and when the rent collector made a demand and, therefore, in view of PLD 1972 Kar. 220 the default if any was to be condoned. Relying on PLD 1976 Lah. 1050 it was held that acceptance of rent after intervals amounted to a change in contract regarding mode of payment.
2. The respondent filed an appeal before the Additional District Judge, which was allowed by the impugned judgment.
3. ' Mr. Rehanul Hassan Farooqui, the learned counsel for the appellant has contended that there was a practice between the parties, whereby the respondent used to collect rent after intervals and this practice was of such a nature and long duration that it led the appellant to believe that the rent was not payable every month, and therefore, there was no wilful default, and if at all there was any, discretion should be exercised in favour of the appellant. Before dealing with this contention, it is necessary that the nature of defence set up by the appellant may be examined. In the written statement the appellant denied that the rent was payable every month at the close of English calendar month, and it was further stated that the rent collector used to collect rent from the opponent and other tenants some times after six months or so and whenever the rent collector came, the appellant paid rent. In view of the defence set up by the appellant the following issues were framed:-
(1) Whether the application as framed is maintainable?
(2) Whether there is any agreement to pay monthly rent by close of English calendar month? If so, its effect?
(3) Whether the opponent has committed any wilful default as alleged?
(4) Whether the opponent has commited any wilful default as alleged?
(5) To what relief, if any, is the applicant entitled?
4. ' As pointed by Mr. Shaikh Abdul Aziz the learned counsel for the respondent, there is no specific plea that a practice had developed between the parties whereby the appellant was not bound to pay rent every month. Where a party relies on a practice, he should plead it specifically and further that it should be proved by clear and cogent evidence that the mode of payment which has turned into a practice was adopted by the parties continuously for considerably long time without variation and without objection from the other side. The learned counsel for the appellant has made much emphasis on the practice, but neither from the pleadings, nor from the issues and even from the evidence of the appellant such a practice has been established. By establishing practice a party seeks to change a statutory duty to pay rent every month. Issue No,2 only speaks of an agreement not to pay monthly rent, but it does not even refer to any practice as envisaged by the learned counsel for the appellant. In the evidence the appellant did not specifically put any suggestion to the respondent that he had allowed the rent to be accumulated and had asked the appellant not to pay till such time he collects the rent or that the receipts issued for lump sum were in pursuance of such practice not to collect or pay the rent every month. Even the statement of the appellant in this regard is very vague and unspecific. To prove the practice the appellant has relied on rent receipts Exhs. 0/1 to 0/6 which were issued in the following manner:-
(1) Exh. 0/1 rent from January to June, 1967 paid on 10-6-1967.
(2) Exh. 0/2 rent from April, 1967 to December, 1967 paid on 23-9-1967.
(3) Exh. 0/3 rent from January to April, 1968 paid on 4-5-1968.
(4) Exh. 0/4 rent from May, 1967 to January, 1968 paid on 15-2-1968.
(5) Exh. 0/5 rent from October, 1966 to March, 1967 paid on 4-4-1967.
(6) Exh. 0/6 rent from April, 1969 to August, 1969 paid on 19-8-1969.
5. ' The appellant claims to be the tenant from the year, 1947, but he has filed only six receipts issued during the years 1967 to 1969. Even these receipts do not prove that there has been any consistent and uniform practice to pay the rent after fixed intervals. The intervals range from 3 to 8 months.
6. Another significant aspect is that at the end of receipt it is provided that tenancy of this premises is subject to the terms and conditions printed on the reverse. One of the conditions on the reverse is that the rent is payable every month. This is the statutory obligation of tenant also. The respondent's witness has also stated that he used to collect rent every month but the appellant never paid. He admitted that whenever the appellant paid the rent he used to pass on the receipt.
7. From these facts it is clear that the appellant has failed to establish a practice operating between the parties, whereby the mode of payment was changed.
8. ' Mr. Farooqui the learned counsel has very vehemently argued that the appellants were led to believe that the rent was not to be paid every month. In this regard the learned counsel has referred to Muhammad Alam v. Noor Muhammad 1973 SCMR 606 and Ghulam Abbas Adamjee v.
9. Hassan Ali and others PLD 1984 Kar.
373. The basis of the learned counsel's argument is the observation made in Muhammad Alam's case. Even for application of the principle laid down in Muhammad Alam's case the tenant should establish some overt act of the landlord by which it can prove that the tenant was not required to pay rent every month. Such mode of payment cannot be established by producing some receipts for payment of rent in lump sum. It is the statutory obligation of a tenant to pay rent every month and acceptance of delayed payment of rent in lump sum on several occasions cannot give rise to any practice whittling down the requirement of law that rent has to be paid by the tenant every month. Reference can be made to S. Riaz Ali v. Shabbir Ahmed 1971 SCMR 598, Muhammad Hassan Khan v. Mahmood Ahmad Khan 1975 SCMR 355, Abdul Rashid v. Saleh Muhammad 1980 SCMR 506, Syed Waris All Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601, Fide Hussain v. Muhammad Ibrahim 1972 SCMR 262, Muhammad Qasim v. Mehrban All 1983 SCMR 1205, Malika Begum v.
10. Mehr All Hashmi 1984 SCMR 755, Alima Ahmed v. Amir All PLD 1984 SC 32 and Ghulam Abbas Adamali Jeeva All v. N. Hassanali & Co. PLD 1984 Kar.
11. 373.
12. From these authorities, it is clear that if the tenant puts up a plea that the rent was to be collected in accumulated form or that a practice had developed to pay the rent in lump sum then it will not be a valid defence. In the present case, except the receipts produced by the appellant no other evidence has been deduced to show that there was a prevailing practice by which the appellant was led to believe that the rent for every month was not payable. The appellant has stated that there were other tenants also in the building, but none were examined nor the respondent was called upon to produce the counter foil of the receipts of other tenants to show that it was the practice to receive rent after intervals. The conditions mentioned in the rent receipts coupled with the statement of respondent's attorney belie the fact that there was any such practice. The appeal is, therefore, dismissed. Five months' time is allowed to the appellant to vacate the disputed premises.