' This first rent appeal under section 21 of Sind Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance) is directed against the Order dated 7th February,1980, of IIIrd Rent Controller/Senior Civil Judge Karachi whereby he dismissed the Rent Application of the appellant.
2. The facts of the Rent case are that S. Aziz Ahmed is landlord of Building known as "MANSOOR MANSION" situate on Plot No,402 RC-4, Ranchore Quarters, Sweeper Village Street, Karachi and the respondent Abdul Qadir is the tenant of Shops Nos. 5 and 6, at monthly rate of Rs,37. Appellant filed ejectment application on 13th January, 1968, under section 13 of the West Pakistan Urban Rent Restriction, Ordinance, 1959 on the ground that respondent has failed to pay or tender the rent from September 1967 upto 31st December,1967, therefore he is liable to be ejected.
3. Respondent filed his written statement in which he stated that as a matter of 'established practice the Rent Collector of the appellant used to come irregularly after every two or three months and collect the Rent from the respondent and other tenants. Since the month of October 1967 and onward the Rent Collector stopped coming. The respondent approached the appellant/landlord for tendering the Rent who advised him to pay the Rent to the Rent Collector who would come and collect the rent. It is stated that again in early December, 1967 and January, 1968, respondent approached the appellant but he avoided to receive the Rent on the pretext that receipt book was not with him. Finally in the 2nd week of February, 1968 the respondent tendered the rent by money order which appellant refused, therefore, in the circumstances he has not committed any default.
4. The Rent Controller on the pleadings of the parties framed following issues:
(1) Whether the respondent has committed default in payment of rent to the appellant.
(2) Whether the ejectment application is frivolous and vexatious entitling, the respondent for compensation from the appellant. Both the issues have been decided by the Rent Controller against the appellant and dismissed his application.
5. Before the Rent Controller appellant S. Aziz Ahmed examined himself while respondent Abdul Qadir has given his evidence as Exh.6, and in his support examined Muhammad Ismail Exh.7, and Janet All as Exh.8.
6. Appellant has given the evidence as per his Rent Application and deposed that respondent has failed to pay the Rent from September, 1967. The relationship of tenant and landlord is not denied.
The contention of the respondent as mentioned in written statement is that Rent Collector used to come but he had not collected the rent and he tried to tender the rent to the appellant but he avoided to receive the rent and finally filed ejectment application. Respondent in his support examined two witnesses Muhammad Ismail and Janet Ali. They both have supported the respondent and stated that Rent Controller use to come and collect the rent and they also accompanied the respondent to appellant for tendering the rent but on one or the other pretext the rent was not accepted.
7. I have heard Mr. Rehmat Ellahi learned counsel for appellant and Mr. A. Aziz Khan,Advocate for the respondent.
' Mr. Rehmat Ellahi contended that respondent has failed to pay or tender the rent for the months September, 1967 to December, 1967. He has committed lawful default. It was his duty to tender rent every month which he has failed to do so, therefore, he is liable to be ejected. He has relied upon the cases reported in PLD 1983 Kar. 196; Abdul Bari Siddiqui v. Karim Hyder 1982 CLC 33, 1981 SCMR93 and 1972 SCMR 262. In case Messrs Tar Muhammad Jannon v. Tahar All and others 1981 SCMR 93, it has been held that landlord tolerated his default for some time and accepted rent at irregular intervals cannot be deemed to have established practice and tenant cannot be allowed to take advantage of his own negligence. It was decided in case of Waqar Ahmed v. Muhammad Ashraf PLD 1983 Kar. 196 that landlord can neither plead a practice against contract nor against provisions of law and same view has been taken in other above-cited cases.
8. Mr.A.Aziz Khan has contended that Rent Controller has exercised his discretion properly and dismissed the Rent application and his order does not call for any interference. He has referred to cases reported in PLD 1976 Kar.53, PLD 1977 Kar.285, PLD 1978 Kar.851, PLD 1978 Lah. 862, PLD 1973 Kar.56, P L 0 1965 Lah. 82, PLD 1967 Lah.29 and PLD 1977 Lah.262, mostly in all these cases it has been held that authority can condone the default by exercising discretion. It has been decided that discretion should not be exercised arbitrarily or unjustly.
' In the present case it is to be seen if discretion has been exercised judicially by dismissing the rent case.
9. His next contention is that evidence of the respondent and his witnesses is to be believed as they all ,have stated that respondent tried to tender the rent but it was not accepted by the appellant.
Mr. A. Aziz Khan has cited the cases reported Muhammad Alam v. Noor Muhammad 1973 SCMR 606, where it has been held that production of one solitary receipt showing that rent for three months was accepted would not lead a presumption that practice of receiving rent periodically was adopted by the landlord and in that case statement was also not believed by Supreme Court.
He has also cited 1982 CLC 219. '
10. In this case it is proved that rent from September, 1967 has not been paid. Even if it is considered that in February,1968, respondent tendered rent by money order even then there is default of payment of rent for the months of September, 1967 and October, 1967. This position has not been denied by the respondent. The wilful default has been proved and I, agree with the contention raised by Mr. Rehmat Ellahi that it is duty of the tenant to tender the rent and in case of refusal he could have tendered the rent with the Rent Controller having jurisdiction. The case law referred by him on this point is relevant. The discretion exercised by the Rent Controller in dismissing the Rent Application is contrary to law, therefore, cannot be considered as a judicial discretion. He has also failed to discuss the relevant law given by Superior Courts from time to time. I, refer to a case Mst.
Aliam Ahmed v. Amir All PLD 1984 SC 32, where Honourable Judges have fully discussed and held that it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of Ordinance and it has also been held that practice of collecting accumulated rents is of no avail in explaining delay and default.
' In view of the above discussion I, accept the appeal and set aside the order, dated 7th February 1980, of the Rent Controller. Consequently the Rent Application of the appellant is allowed. The respondent is directed to hand over the vacant possession of the premises to the appellant.
However 4 months time is allowed to respondent to vacate the premises.