' By an order, dated 16th March, 1980 XIIIth Civil Judge and Vth Rent Controller, Karachi dismissed the Rent Application filed by one Rais Ahmed Barqi for ejectment of his tenant Shaikh Abdul Qayyum. This is an appeal against the said order.
2. The appellant who is the landlord filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance on 9th October, 1975. He rented out a shop under a written deed to the respondent in respect of the plot No, II-B-4 ; Commercial, Block No, 2, Nazimabad, Karachi at a monthly rent of Rs, 125 which was payable in advance each month by the respondent. The appellant in his rent application alleged that the respondent is a habitual defaulter towards the payment of rent and has defaulted in payment of rent for the months of August, September and October, 1975. He has further pleaded that the premises in question are in good faith required for his own need as well as for his son and both of them want to carry on the business in the said shop.
The appellant has further stated that he had no source of income and the appellant does not own nor occupies any other shop where he can start the business and that the shop occupied by the appellant in Block No, 5, Nazimabad was vacated by him in 1973 due to his ill-health and that the same was far of from his residence. Under these circumstances he needs the premises in possession of the respondent in good faith for himself and for his son to do business together in the said premises.
3. In the written statement the respondent has denied to have committed default and contended that the rent was not payable in advance but since the beginning of the tenancy the practice bad been that the appellant used to collect the rent according to his own convenience and mostly in lump sum. He has denied that the appellant ever collected the rent in advance. The respondent has controverted personal bona fide requirement of the appellant and has contended that the appellant had also previously tried to manipulate the ground of personal requirement and had issued such a notice which was replied on 15th May, 1973 and the appellant did not move any application on that ground then. The following three issues were framed by the learned Rent Controller :- "(1) Whether the opponent has committed wilful default in payment of rent as alleged in the application ?
(2) Whether the applicant required the premises for his personal and his son's bona fide use ?
(3) What should the order be ?"
' The Issues Nos. 1 and 2 were answered in negative.
4. The appeal was argued by Mr. Muhammad Salim Qureshi on behalf of the appellant and by Mr. M. Habibur Rehman Afridi on behalf of the respondent.
5. The learned counsel for the appellant submitted that the indulgence on the part of the landlord in accepting the rents after intervals of two months or three months would not create a right in favour of the tenant to pay rents at such intervals. The object of the West Pakistan Urban Rent Restriction Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent. The discharge of this statutory obligation by the tenant is a condition of his protection and, he can invoke discretion under section 13 of the Ordinance only if he can establish that he was ready and willing to full.11 his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligation.
However, merely because a tenant has on a few occasions been 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 arrears, this is an indulgence on the landlord's part, and the recipient of an indulgence cannot claim any right or equity to its continuance. While arguing this the learned counsel referred to PLD 1973 Kar.
56. He has also referred this Court to PLD 1979 Lah.
444. The following extract from the said authority is relevant on the point :- "The only proposition favourable to the tenant which can be found out in the case of Muhammad Aslam v. Noor Muhammad (1973 SCMR 606) is that if such practice is proved, discretion might be exercised by the Rent Controller against eviction 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 (1971 SCMR 598) 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 period 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 has 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 due to pre- occupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc. In the case of Syed Riaz Ali v. Shabbir Ahmed Khan it was pointed out that the receipt of the rent for a several months at a time may be proved of condonation of default by the landlord and not of any consent to vary of these diverse possibilities, unless there be a definite proof to the 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 tenant. In other words, there must be material on the record to prove that the default was not wilful or deliberate."
6. In this case certain receipts were produced by the tenant as Exh. 02/1 to 02/5 showing that the payments of rents were made periodically and were accepted by the landlord although there is no specific proof that this practice was followed by the parties willingly or the landlord accepted the amounts in protest. Law quoted above shows that mere indulgence on the part of the landlord by accepting rents in lump sum does not invariably establish the fact that the tenant shall pay the rents at will and at his own convenience. The tenant is bound by a written agreement Exh. A-1 to pay the rents monthly and the same in advance. As per record I find that the tenant/respondent has not controverted this fact. The arrears in this case at the time when the Rent Application was filed were for the months of August, September and October, 1975. It has come on record that on 21st October, 1975 the rents for the months of August and September were accepted by the landlord/appellant. Thus according to the agreement the rent for the month of October, 1975 was to be paid in advance before the date the Rent Application was presented4 before the Rent Controller. Since there exists a rent deed the respondent has defaulted firstly in the month of October, 1975 and secondly if we consider that it was mere indulgence of the landlord in accepting the rents for the months of August and September, 1975 on 21st October, 1975, it cannot be construed that the tenant/respondent has not committed the default in respect of the months August and September, 1975 also. However the learned Rent Controller has exercised his discretion in favour of the respondent/tenant believing that there is no wilful default as the rents were accepted in lump sum periodically. I have considered this point with a sufficient attention. I believe that the default is committed by the tenant, the discretion exercised by the learned Rent Controller in favour of the respondent need not be accepted.
7. In this appeal issue No, 2 appears to be more important. The' case of landlord/appellant is that he was doing business in Block No, 5, Nazimabad and since he grew old, he abandoned that business and vacated that shop in 1973. The shop in possession of the respondent is on the ground floor of his house which he is occupying and in conjunction with his son he would do business which would be more convenient considering his age which is said to be about 70 years. He would be B helped by his son. The requirement of the appellant/landlord, an old man, is pressing and that his bona fides cannot be doubted on the grounds that he has grown old and he would be assisted by his son in conjunction of whom he would start business on the ground floor of his own house.
The learned Rent Controller has examined the correspondence in-between the appellant and the respondent wherein the appellant has asked th respondent to vacate the ground floor on the grounds that he would do business in the said premises. But the learned Rent Controller observed that the landlord/appellant went in hibernation for two years and five months and therefore his requirements were not bona fide. This observation cannot be accepted by me as other circumstances which surround the condition of the old man i. e. The appellant are that he has become too old and that it would be difficult for him to do business excepting on the ground floor of his own building. There is nothing wrong and one cannot come to the conclusion that the appellant/landlord has through mala fide instituted the Rent Application. The contention is raised on behalf of the respondent/tenant that the son of the appellant was not examined in these proceedings. The examination of the appellant was, in my view, sufficient and he has mentioned the name of his son in whose conjunction he would do business. After all he is nearing death and after his demise it is his son who will lookafter the business and have some means of earing.
Considering the requirement of the appellant the Issue No, 2 is decided in favour of the appellant.
8. For the facts and reasons mentioned above, the appeal is hereby allowed and it is ordered that the vacant possession of the premises in question be handed over peacefully to the