1. ' This second appeal by the landlord is filed against the order of the 2nd Additional District Judge, Karachi, in Rent Appeal No,479/75 whereby he reversed the finding of the Rent Controller and dismissed the ejectment application of the appellant on the ground of default.
2. ' The appellant/landlord instituted Rent Application No,2107/71 alleging default against the respondent from November, 1970 to July, 1971. The default was not disputed in the written statement but it was alleged that it occurred on account of the conduct of landlord who refused to accept the rent tendered by the respondent. It was further alleged in the written statement that the respondent used to remit rent every month through money orders in the names of two applicants but after November, 1970 the postal authorities refused to accept money order in the names of two landlords jointly. Rent Controller after recording the evidence of the parties came to the conclusion that the default committed by the respondent was wilful and accordingly ordered his eviction from the premises. On appeal the first appellate authority came to the conclusion that although the default was committed by the tenant for the period mentioned in the rent application but it was not a wilful default as the tenant succeeded in showing a practice on the part of landlord to receive the rent in lump sum for several months together. Accordingly the order of ejectment passed against the respondent was set aside and ejectment application filed on the ground of default was rejected.
3. ' Mr. Noorally, the learned counsel for the appellant contended before me that the reversal of the finding of Rent Controller by the first appellate authority has proceeded on an erroneous view of law. It is contended that the respondent nowhere alleged in his written statement that there was any practice of acceptance of rent for several months by the landlord in lump sum. It is further contended that the evidence on record neither established the alleged practice of acceptance of rent in lump sum by landlord nor other reasons explained for not tendering the rent in time. I have gone through the pleadings of the parties and the evidence recorded in the case before the Rent Controller with assistance of the learned counsel for the parties. The explanation offered by the respondent in his written statement for accumulation of rent is as follows:-- "The difficulty for the opponent is two-fold, firstly each month in addition to rent the opponent has to incur expenses for the Money Order out of his own pocket, and secondly all the Money Orders have been received by some lady although the applicants had informed the opponent that rent should be paid only to them and only a receipt issued by them will be valid. The opponent repeatedly asked the applicants to give proper receipt for the Money Orders sent right from October, 1967 up to October, 1970 i,e, for over three years but the applicant's conduct has not been clear and definite in this respect. Neither they admit receipt of the rent nor issue the receipt for the same. The opponent was, therefore, worried over the matter that after a long time the applicants may not accept that the rent sent by Money Order has been received by them at all and fail to give any credit for the same and in that case the opponent might suffer. There is another trouble that the Post Office always objects to accepting the Money Order in the name of two payees."
4. ' The above explanation offered by the respondent in his written statement for the default does nowhere indicate that the landlord had agreed to accept the rent in lump sum for several months.
5. On the contrary the money order coupons Exhs. 8 to 19 produced by the respondent in his evidence show that the rent wa remitted to applicants for each month. The learned counsel for the appellants contends that although in the written statement it is not specifically pleaded by the respondent that there was practice on the part of landlord to accept the rent in lump sum but he did produce evidence before the Controller which supports the contention of respondent that the landlord used to accept the rent in lump sum. The learned counsel in this regard relied upon the money order coupons Exhs.20 to 37. The contention of learned counsel has not impressed me at all, Firstly, if the practice of receiving rent in lump sum was relied by the respondent it should have been specifically pleaded in the written statement. Secondly the money order coupons Exhs.20 to 37 relied by the learned counsel do not show that there was any consistent regular practice on the part of landlord to receive rent in lump sum which gave rise to the presumption that the statutory obligation of respondent to tender the rent every month stood modified by such practice on the part of appellant. These payments only suggest an irregular mode of payment by respondent which at times was not objected by the appellant but his is not sufficient to hold that there was any such consistent and regular practice on the part of appellant to receive rent in lump sum which modified the statutory obligation of respondent. Money Order coupons Exhs. 20 to 37 show that they were addressed in the joint names of two applicants. Some of them are for 2 months rent, some for 4 months and some time for one month while one is for 5 months rent. The Rent Controller, therefore, in these circumstances rightly came to the conclusion that the respondent failed to establish a consistent practice for payment of periodic rent at a regular interval of time.
6. There is also no evidence on record to show that the postal authorities ever refused to accept the money orders in the joint name of applicants as contended by the respondent in his written statement. On the contrary all the money order coupons produced in evidence by the respondent were addressed in the joint name of applicants. In a these circumstances the conclusion reached by the first appellate Court that the respondent had succeeded in showing that the landlord used to receive rent periodically in lump sum and therefore no wilful and deliberate default was committed by him is contrary to evidence on record and does not proceed on logical reasoning. In the case of Messrs Tar Muhammad Janoo b Co. v. Taherali and others 1981 SCMR 93 in somewhat similar circumstances the Hon'ble Supreme Court observed as follows:-- " We are not impressed by this contention. When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement, a tenant would be defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. 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 reasons for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own works his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation.
7. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord had been accepting the same and argued that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits."
8. ' In view of above discussion I am of the view that the reversal of the finding of the Rent Controller by the first appellate Court was not justified and had proceeded on insufficient reasoning. Besides it is also not supported by the evidence on record. I accordingly set aside the order of the first appellate Court, restore that of Rent Controller. The respondent is allowed four months' time to vacate the premises. There shall be no order as to costs.